In an effort to promote energy efficiency in state government buildings, the Illinois General Assembly enacted the Green Buildings Act, requiring all new state-funded building construction and renovations to seek LEED, Green Globes or equivalent certification, and further requiring that all projects receive the highest level of certification practical within the project budget. While actual certification is not required for buildings of less than 10,000 square feet (simply that the project be certifiable), for buildings over 10,000 square feet, a minimum LEED Silver rating (or it s equivalent) is required. Exemptions are available under limited conditions.  In addition, the law requires that all projects implement at least one LEED alternative transportation criterion such as public transportation or bicycle access. The Act provides for a review of the law in five years or when 10 projects are completed, whichever occurs first.

The new law became effective in July 2009.

Public Act 096-0073 (IL, H.B. 1013)

For the text of the new law click here

An appeals court upheld the zoning board’s denial of an area variance where the board properly engaged in the required statutory balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance were to be granted. The Court found that the denial had a rational basis and was not arbitrary or capricious since the requested variances were substantial, the petitioner’s hardship was self-created, there were feasible alternatives to the requested area variances, and there was basis in the record to support the board’s determination that the proposed development would have an adverse impact on the physical or environmental conditions in the neighborhood, specifically with respect to surface water and groundwater quality.

While the petitioner also claimed that the zoning board had granted other area variances within a 500 foot radius of the subject property, the Court said that this alone is not sufficient to establish that the difference in result is either due to impermissible discrimination or to arbitrary action.  The Court found that the petitioner failed to establish that the zoning board reached a different result on essentially the same facts.

Crilly v Karl, 2009 WL 3766321 (N.Y.A.D. 2 Dept. 11/10/2009).

The opinion can be accessed at: ttp://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D24975.pdf

Earlier this month, voters in San Francisco rejected a ballot referendum, Proposition D, that would have created a new sign-specific zoning district called the “Mid Market Arts Revitalization and Tourism Special Arts District.” According to John Rahaim, the City Planning Director, the proposal would have effectively lifted a ban on all new general advertising signs in the City in place since 2002, undo an ordinance from the 1970s which, prior to 2002 had banned general advertising signs along a portion of Market Street, and it would have required the development of a signage program by the Central Market Community Benefit District to implement the proposition. A number of other legal issues were raised by the proposed proposition including whether the proposal was an unconstitutional restriction on speech, delegation issues with having the Central Market Community Benefit District administering a program that the City had previously had jurisdiction over, discrepancies between the Proposition and provisions of the City Planning Code, and other technical deficiencies.

For more information on Proposition D see:

http://www.sfelections.org/vip/props/prop-d-arguments.html

http://www.city-data.com/forum/san-francisco/770437-support-proposition-d-san-francisco-november.html

This week the proposed redevelopment of an area in Brooklyn, NY known as Atlantic Yards, cleared another hurdle in what is turning out to be protracted litigation.  Basing its holding on State constitutional authority that accords government “broad power to take and clear substandard and insanitary areas for redevelopment,” The New York Court of Appeals upheld the use of eminent domain by the New York State Empire State Development Corporation to acquire parcels that the project developer was unable to secure through voluntary negotiation with property owners.  It seems as though the Court may have been frustrated in reaching its conclusion, commenting that it is possible that the bar has been set too low on what will now pass as blight, but that this a matter for the Legislature and not for the courts.

The proposed project, which consists of a sports arena to house a major league basketball franchise as well as various infrastructure improvements in phase one, would include numerous high rise buildings along with approximately eight acres of open, publically accessible landscaped space planned for phase two.  The project sponsor asserts that the high rise buildings will serve both commercial and residential purposes, containing between 5,325 and 6,430 dwelling units, of which more than one third are to be affordable for either low and or moderate income families. The Empire State Development Corporation has sponsored the project, proposed by private developer Forest City Ratner, as a “land use improvement project” under the New York State Urban Development Corporation Act, finding that the area in which the project is to be situated is “substandard and insanitary.”  Although part of the footprint had been previously designated as blighted, areas that the developer had not been successful in acquiring were the subject of recent commissioned blight studies which found “sufficient indicia of actual or impending blight to warrant their condemnation for clearance and redevelopment” and that such blight removal would allow for the above-described mixed-use development that would serve a “public use, benefit or purpose.”  

Following an unsuccessful effort to halt the eminent domain in federal court (see, Goldstein v. Pataki, 488 F Supp 2d 254 (EDNY 2007), aff’d 516 F3d 50 (2008), cert. den. 128 S.Ct. 2964 (2008)), the remaining property owners challenged the use of eminent domain under two provisions in the New York State Constitution.  After finding that the appellants did timely file their appeal in State Court despite the fact that the State Court action was not filed until after federal court remedies were exhausted, the Court turned to the merits.  Examining first the question of whether the condemnation is constitutional under the State constitution’s requirement that, “[p]rivate property shall not be taken for public use without just compensation,” (the same language as found in the U.S. Constitution), the Court found that it clearly is constitutional since “the removal of urban blight is a proper, and, indeed, constitutionally sanctioned, predicate for the exercise of the power of eminent domain.” Further, the Court noted that Art. XVIII, sec. 1 of the Constitution grants to the Legislature the power to provide specificity with respect to defining blight and blight conditions, and that sec. 2 of that Article authorizes the Legislature to grant the power of eminent domain to any public corporation. Here, the Court said, the Empire State Development Corporation exercised the power for the constitutionally recognized public purpose or “use” of rehabilitating a blighted area.

With respect to the finding of blight, the Court noted that while the conditions that supported the blight finding may not “approach in severity the dire circumstances of urban slum dwelling…” which had prompted the adoption of Art. XVIII, the Court has “never required that a finding of blight by a legislatively designated public benefit corporation be based upon conditions” replicating blight during the Great Depression. The court also acknowledged that the precise definition of “blight” is not for the judicial branch to articulate, but rather something left to the Legislature. And here, the Legislature has left the actual specification to quasi-legislative administrative agencies whose decisions will be upheld where, as here, “those bodies have made their finding, not corruptly or irrationally or baselessly.” So, although the Court said it is possible to make a finding otherwise with respect to blight, it is not for the Court to overturn the decision under the circumstances.  

Lastly, the Court turned to Section 6 of Article XVIII of the Constitution and concluded, based on constitutional history, that the section was meant to apply where housing is created in connection with an urban renewal slum clearance project and where such is aided by state loans or subsidies, the new housing must replace the low rent housing lost during the clearance. The present situation, explained the Court, is different since the current project is not aimed at the wholesale eradication of slums, but rather at alleviating “minor conditions of urban blight” attributable not to housing but rather to an uninhabitable subgrade rail cut. Further, the Court noted that at the time of the environmental impact statement only 146 people still resided in the project footprint and not all of those people were low-income. The Court said, “While the creation of low income housing is a generally worthy objective, it is not constitutionally required under Article XVIII, sec. 6 as an element of a land use improvement project that does not entail substantial slum clearance.”

Goldstein v. New York State Urban Development Corp., 2009 WL 4030939 (NY 11/24/2009).

The opinion can be accessed at: http://www.nycourts.gov/ctapps/decisions/2009/nov09/178opn09.pdf

For earlier blog postings on this case click here and here

Read what journalist Norman Oder has to say about the decision here

This is not the final chapter on the Atlantic Yard litigation, only the eminent domain issue.  See, http://atlanticyardsreport.blogspot.com/2009/11/new-lawsuit-challenging-ay-approval-to.html

See also, http://dddb.net/MTAsuit/index.php; http://dddb.net/MGPPsuit/index.php; and http://dddb.net/FEIS/index.php

In 2001, the City of Saratoga Springs (NY) created an investigatory task force to study the feasibility of creating an indoor recreational facility.  The site initially chosen was replaced with a second site in 2008, which was property owned by the City.  The City declared it would be the lead agency for purposes of environmental review and following such review, the City issued a negative declaration under the State Environmental Quality Review Act (SEQRA).  Thereafter, the planning board issued site plan approval, sparking a challenge by adjacent property owners who alleged, among other things, that the City failed to take the required “hard look” under SEQRA and that the City Council violated the City’s zoning ordinance.

Initially the trial court issued a temporary restraining order preventing the City from moving forward on the construction, but after finding in favor of the City, the order was vacated and the petitioners appealed.  The appellate court affirmed,  In quickly dismissing the City’s claim that the petitioners failed to stay the construction pending the appeal, the Court noted that the City’s construction had not proceeded beyond the point where it could not be “readily undone, without undue hardship,” noting that only six months had transpired and that the project was not neither near completion nor substantially completed.  The Court further found that the City did take the required hard look under SEQRA.

With respect to the claim that the City violated its own zoning ordinance by not obtaining approval from the City’s own zoning board of appeals, the Court noted that the zoning ordinance provides in relevant part that zoning board approval is not required by any action “proposed by any agency, department, branch or division of New York State…which involves the exercise of direct governmental function, consistent with the purposes and jurisdiction of such agency, department branch or division of the New York State.”  In agreeing with the trial court, the appeals court held that the City constitutes a political subdivision of the State and was therefore exempt from the requirements of its own zoning ordinance. 

Mirabile v. City of Saratoga Springs, 2009 WL 3763822 (N.Y.A.D. 3 Dept. 11/12/2009).

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2009/506902.pdf

An appeals court upheld the zoning board’s denial of an area variance where the board properly engaged in the required statutory balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance were to be granted. The Court found that the denial had a rational basis and was not arbitrary or capricious since the requested variances were substantial, the petitioner’s hardship was self-created, there were feasible alternatives to the requested area variances, and there was basis in the record to support the board’s determination that the proposed development would have an adverse impact on the physical or environmental conditions in the neighborhood, specifically with respect to surface water and groundwater quality.

While the petitioner also claimed that the zoning board had granted other area variances within a 500 foot radius of the subject property, the Court said that this alone is not sufficient to establish that the difference in result is either due to impermissible discrimination or to arbitrary action.  The Court found that the petitioner failed to establish that the zoning board reached a different result on essentially the same facts.

Crilly v Karl, 2009 WL 3766321 (N.Y.A.D. 2 Dept. 11/10/2009).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D24975.pdf

On June 7, 2007, the company contracted to buy property for a pawnshop, a permitted use, and applied for a license.  The city code provided for issuance of two pawnbroker licenses and one license was available.  The assistant zoning administrator issued a zoning verification letter.  On July 13 the inspection supervisor left a message indicating that the license could not issue until the store was ready to open, but that “the license will be issued as soon as the store is ready for business.”  In September, residents started expressing opposition.

The city council announced that it would consider an interim ordinance placing a moratorium on issuance of pawnbroker licenses.  While the ordinance was pending, the company filed suit.  After completing its study, the city made pawnshops a conditional use in February 2008, and the company’s location would not qualify under the amended law.  The trial court ultimately upheld the interim ordinance.

The appeals court affirmed, holding that interim ordinances are authorized by MINN. STAT. § 462.355 and that the city’s actions were not arbitrary.  The city did not know of the company’s plans far in advance, but acted quickly when it received the application.  The court noted that the proposed use, unlike the existing pawnshop, would have included check-cashing and other “adult-oriented” businesses and that the ordinance was enacted to study and address public safety concerns.

Pawn Am. Minn., LLC v. City of St. Louis Park, 2009 WL 2447746 (MN. Ct. App. 8/11/2009).

The opinion can be accessed at: http://www.lawlibrary.state.mn.us/archive/ctapun/0908/opa081697-0811.pdf

This abstract appears in the October 2009 issue of Planning and Environmental Law published by the American Planning Association.

In an appeal from the Vermont Environmental Court that upheld a denial of an application to build a single-family dwelling, the state Supreme Court concluded that the property in question did not qualify as a preexisting, non-conforming, small lot and the Town was not estopped from denying the application. The property in question was originally part of a 66 acre parcel owned  by previous owners, of which five acres were located on the west side of Horn of the Moon Road while the remaining 61 acres were located on the east side.

The town zoning regulations were first enacted in 1970 and amended in 1974 to require a minimum lot size of seven acres in the district where the property is located. In 1985, previous owners obtained a 50 acre parcel of the property, and in 1989 they obtained subdivision approval to divide the parcel into two lots, one consisting of approximately 36 acres on both sides of the road, and the other consisting of about 12.2 acres, with eleven acres on the east side of the road and 1.2 acres on the west. In 1990, the applicant acquired title to the 12.2 acre parcel with a deed describing the lot as consisting of two parcels: the eleven acres east of the road and the 1.2 acres west of the road. The 11.2 acre parcel had already been developed with a single-family dwelling, which the applicant has occupied as his principle place of residence. In July 2007, applicant applied for a zoning permit to construct a second single-family residence on the 1.2 acre parcel but giving the minimum lot size of 7 acres the zoning administrator denied the application, and on appeal, the zoning board of adjustment upheld the ruling.

The Environmental Court granted the Town’s motion for summary judgment, agreeing that the Town was not estopped from denying the application because the zoning administrator had earlier approved similar property. The court also granted the Town’s motion for summary judgment on the permit application.

The Vermont Supreme Court examined the Town’s zoning regulations for preexisting small lots that fail to meet minimum lot size requirements. The regulations provide an exception that describes any lot in individual and separate and non-affiliated ownership from surrounding properties in existence on the effective date of the regulations, indicating that they may be developed for the purposes permitted. The Court said that this was a limited grandfather clause allowing for limited development. The court held that even assuming that the road may prevent the merger of lots on either side, there was no evidence that the 1.2 acre parcel was ever separately held as an independent lot when the Town enacted its regulations. Furthermore, the court conceded that at the time of the 7 acre minimum regulation, the 5 acre parcel was grandfathered as a preexisting small lot, however this same status would not devolve upon applicant’s smaller 1.2 acre parcel, which was only later created from the 5 acre parcel. To hold otherwise, the court held, would literally permit the compounding of preexisting non-conforming use, in clear violation of the public policy in favor of restricting or eliminating such uses. Thus, the 1.2 acre parcel does not qualify as a preexisting non-conforming small lot.

In re Mastelli Construction Application, 2009 WL 2901870 (VT. 9/4/2009).

The Supreme Court Opinion is unpublished.

Following denials by the Planning Board for a permit to site a 19o foot wireless communication tower by Gridcom that would house up to four telecommunications carriers, on the ground that the proposed facility fell within a scenic view and would have an unreasonable adverse impact thereon, the Board of Appeals remanded to the planning board to approve the application determining that the evidence didn’t support the planning board’s finding of reasonably adverse impact on scenic view.  On remand, the planning board approved the application and a group of community members appealed the action.  The Superior Court ordered the Board of Appeals to further remand to the Planning to deny the application.  Gridcom appealed.

The Maine Supreme Court examined the seven factors applied by the planning board as enumerated by the ordinance to determine whether the tower would have an unreasonably adverse impact on the scenic view.  They focused on the planning board’s definition of “tree line” which initially was “where the trees meet the horizon” when viewed from the bay; and when viewed from the mountain, where the trees meet “the edge of the water.”  On appeal, the Board changed its definition of tree line to mean “the true height of the average-sized trees;” which was then determined to be 50 feet, at the first hearing and 65-80 feet at the second hearing.  Gridcom argued that under this definition no telecommunications tower would be allowed and this is inconsistent with the zoning ordinance in that the ordinance allows telecommunications to be up to 195 feet tall.  The Supreme Court agreed, noting that any tower higher than the highest tree in the area – about 86 feet, would never be approved, rendering ineffective the zoning ordinance provision, and this could not be the intended result.

Since the term “tree line” is not defined in the ordinance, the Court must reasonably consider the ordinance’s objectives and general structure.  Therefore, the Court said that the planning board’s initial interpretation, which resulted in a finding that the proposed tower would not pierce the top of the tree-line, was more appropriate. 

Further, the term “vegetative screening” was not defined in the ordinance, although it is one of the seven factors to be considered.  Similar to how the board treated the “tree line” definition, their first interpretation would have supported the tower application and their second interpretation would not.  The Court agreed that the Board’s initial interpretation was reasonable because it permits this section of the ordinance to be both constitutional and harmonious with other sections of the ordinance. 

The Court concluded that Gridcom met its burden of establishing the factual elements necessary for the grant of its application, finding that they met five of the seven factors to show no reasonable adverse impact on scenic view.

Davis v SBA Towers II, LLC, 2009 WL 2392994 (Me. 8/6/2009).

The opinion can be accessed at:  http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me82da.pdf

Reiterating that planning boards are not authorized to interpret provisions of local zoning laws, an appeals Court found that nothing in the board’s resolution approving a site plan purported to evaluate the proposed use in light of the zoning code.  The allegation that the board made an implicit interpretation by merely approving the site plan was found by the Court to be both unsound and unsupported by the record.

With respect to the board’s finding of no significant impact on the environment, and hence a negative declaration under the State Environmental Quality Review Act, the Court concluded that the board properly took the required “hard look” and made a “reasoned elaboration” of the basis for its determination.  The Court found that the board appropriately investigated concerns over aesthetic and community character impacts and consulted the Town’s Open Space Study and Comprehensive Land Use Plan in reaching its determination.  Therefore, the board’s proposed determination that the project which included significant landscaping, open space and an 11-acre nature preserve, would not have a significant impact on the environment was supported by the record.

East Moriches Property Owners’ Assoc., Inc. v. Planning Board of the Town of Brookhaven, 2009 WL 3382993 (N.Y. A.D. 2 Dept. 10/20/2009)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_07632.htm