The petitioner’s application for certain setback and area variances needed to maintain an existing cabana and retaining wall was denied by the zoning board of appeals.  Both the cabana and the retaining wall were completed prior to the Town amending its zoning ordinance, which makes the uses nonconforming since the cabana height is 14.97 feet and the new limit if 14 feet; and the retaining wall was set back less than one foot from the property line and the new regulation requires a minimum four foot setback.  Although the petitioner never obtained a building permit for the cabana and retaining wall, the petitioner did apply to the zoning board of appeals for “permission to maintain” these improvements. The Trial Court granted the petition seeking to annul the determination of the zoning board of appeals.

 

In upholding the Trial Court’s decision, the Appellate Court noted that the general rule in New York with respect to nonconforming uses or structures in existence when a zoning ordinance is enacted, is that they are constitutionally protected and will be permitted to continue. Since both the cabana and the retaining wall complied with the requirements at the time they were constructed, the Court said they are entitled to nonconforming status even though the petitioner failed to obtain a building permit prior to construction.  Citing prior precedent, the Court said, “[a] use which is otherwise lawfully maintained may be continued as a nonconforming use although the user failed to procure or renew a license, certificate, or other permit required by law.” See, Matter of Kennedy v. Zoning Bd. of Appeals, Town of N. Salem, 205 A.D. 2d 629, 631.  

 

Further, the Appellate Court agreed that the variance denial by the zoning board of appeals lacked a rational basis.  The Court noted evidence presented at the hearing that demonstrated that the impact of the request variance was de minimis and that there was no evidence that it would cause a detriment to the health, safety or welfare of the community.

 

Cinelli Family Ltd. Partnership v. Scheyer, 2008 WL 1903553 (N.Y.A.D. 2 Dept. 4/29/2008).

 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19081.pdf

An application for a proposed three lot subdivision was denied by the planning board following a public hearing where many neighbors and adjacent landowners expressed concerns over potential drainage and flooding problems.  The petitioner alleged that the planning board had previously issued a negative declaration pursuant to the required environmental review finding no significant impact on the environment, and that the subsequent denial was due only to generalized community opposition, which alone, cannot justify the denial.

 

The Appellate Court first resolved that there was no inconsistency between the negative declaration finding no significant adverse impact would result from the proposed development, and a determination that there could be adverse effects associated with drainage and flooding problems. Citing to N.Y. Village Law §7-730(1), the Court noted that planning boards shall require a showing that the land proposed for subdivision can be used safely for building purposes “without danger to health or peril from fire, flood, drainage or other menace…” In addressing the allegation of generalized community opposition, the Court noted that the neighbors and adjacent landowners had firsthand knowledge based upon their experiences of the recurring drainage problems in the area, including flooding of streets and basements.  Further, the Village engineer had expressed some concerns regarding the development of the property and its impact on drainage.  The applicant’s engineer believed that the proposed development would have little effect on the existing draining conditions. Acknowledging that the facts in this case were close, the Court said that this is exactly the kind of fact-specific decision that planning boards are supposed to make, and where as here, there was a rational basis o support the board’s denial, it will be upheld even though a contrary determination could also be supported in the record.

 

MLB, LLC v. Schmidt, 2008 WL 1821537 (N.Y.A.D. 3 Dept. 4/24/2008).

 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503562.pdf

Landmark Development Group, LLC applied to the Town Board to have approximately 210 acres zoned for one-acre residential approved as a planned development district (PDD).  The developer plans to build 170 lots on about 55 of the 210 acres, with the remaining land to be open space owned by a homeowner’s association. The Town’s zoning ordinance provided for the PDD as a floating zone, meaning that its boundaries are not fixed in the original ordinance, but are established by a later amendment to the zoning map. Following an environmental review with full opportunity for public input, the Town Board passed a resolution approving the PDD subject to various conditions. The petitioners sought to annul the resolution, arguing that it violated the doctrine of legislative equivalency and that the PDD can only be sited as a floating zone if the Board amends the legislation in the same manner in which the zoning ordinance was initially adopted.

 

The Court disagreed with the petitioners, explaining that the floating zone was already part of the existing zoning ordinance. The Court noted that the floating zone is a common and preferred method for creating a PDD and that the two-step legislative process includes the initial ordinance  that outlines procedures for a PDD without setting boundaries, and then an amendment to the zoning map and/or ordinance to place the PDD once it is approved. The Court noted that in this case, the petitioners commenced the proceeding before the second step was completed by the Town. However, everything that the Town has done with respect to this application and the siting of the floating zone to date have been appropriate. The Court further commented that since the commencement of the proceeding, the Town did enact an ordinance (i.e., a legislatively equivalency act) amending the zoning map to reflect the placement of the PDD.

 

Brunswick Smart Growth, Inc. v. Town Bd. of Town of Brunswick, 2008 WL 1902089 (N.Y.A.D. 3 Dept. 5/1/2008).

 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503677.pdf

Ordinarily, challenges to the issuance of decisions regarding building permits are to be made to the zoning board of adjustment prior to taking an appeal to the superior court.  In the present case, the McNamaras alleged that they purchased their home not knowing that a building permit had been issued to the Hershes on the abutting lot.  When the Hershes began construction in mid-October 2005 the McNamaras did not appeal the decision to issue to building permit to the zoning board of adjustment, rather, in August 2006 they sought a declaratory judgment from the Court that the building permit was unlawfully issued (since the local ordinance only permitted building on 10% of the land but the permit allowed building to cover 13% of the land) and was thus void. The trial court dismissed the petition. 

 

The Supreme Court held that the McNamaras failed to exhaust their administrative remedies when they chose not to appeal to the zoning board of adjustment.  The Court noted that the alleged error - that the permit violated the ordinance - is an error that is within the power of the zoning board to correct. Further, the Supreme Court agreed with the trial court that the McNamaras failed to bring their claim within a reasonable period of time.  Therefore, the Court upheld the dismissal of their declaratory judgment petition.

 

McNamara v. Hersh, 2008 WL 899243 (N.H. 4/4/2008).

 

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/mcnam031.pdf

 

 

The April 2008 issue of Research Works, published by HUD, highlights a study HUD’s Office of Policy and Development commissioned to determine whether subdivision regulations that dictate infrastructure and site requirements pose unnecessary barriers to affordable housing.  The Research Center of National Association of Home Builders conducted the study, collecting data on some of what they considered to be the economically influential subdivision regulations and zoning rules for 469 municipal and county level planning jurisdictions across the country. Benchmarks were developed by a team consisting of residential land developers, architects, civil engineers and land planners, who developed what they believed to be national minimum standards necessary for healthy, sustainable communities.  The study then measured lot size, floor space requirements, lot width, roadway width, sidewalk requirements, and curb and gutter drainage against these benchmarks. According to the summary, “subdivision requirements that went beyond the benchmarks were termed excessive and defined as regulatory barriers.”

 

Not surprising, 91% of communities studies had one or more regulatory standards that exceeded the benchmarks, with a reported additional cost of compliance of $11,910 per dwelling unit.  Over the course of the study year, it was reported that cumulatively, this amounted to roughly $14.6 billion.  The study concluded that excessive subdivision requirements limit affordable housing by increasing development costs, and called upon local governments to reduce regulatory barriers by balancing affordable housing goals with other community amenities. The study recommended that HUD focus efforts on addressing what was found to be the largest contributors to excessive subdivision requirements – lot size, lot width and floor area.

 

Note: Of course, readers are cautioned to consider the reasons why municipalities choose certain subdivision requirements, and that much has to do with, among other things, community character, environmental protection goals, public health and safety concerns, and community demographics.  While communities should always keep affordability in mind, other considerations are appropriate to balance when developing the final regulations. Although this report calls for such a balancing, it is understandably focused on monetary costs.  It should not be read to suggest that all subdivision regulations must require high density, compact subdivisions.  Where appropriate, however, such considerations might offer more affordable housing options.  Consider that market price has an equal, if not greater influence on the cost of single family dwellings than do subdivisions regulations, absent local regulations that specifically limit housing costs.

 

The report may be accessed at: http://www.huduser.org/rbc/rbcNews/subdvsn_req.html

 

Information about HUD’s Affordable Communities Initiative can be found at: http://www.hud.gov/initiatives/affordablecom.cfm 

On April 28, 2008 the South Dakota Attorney General issued an opinion determining that it is appropriate for a state agency to sell land to a city or local economic development organization so that the land may be leased to a private company for economic development. In interpreting two statutory provisions (S.D. C.L. 5-9-34 and 5-9-35) which provide, in part, that such land be used for a “public purpose,” the Attorney General relied on the U.S. Supreme Court’s interpretation of “public use” and “public purpose” in Kelo v. City of New London, 545 U.S. 469 (2005) as well as on interpretations by the South Dakota Supreme Court to reason that there are distinctions between the phrases “public use” and “public purpose.”  Citing to a string of cases where the South Dakota Supreme Court has explicitly found that economic development is a public purpose, the Attorney General opined that since the applicable statute uses the phrase “public purpose,” the legislature’s use of this judicially defined term suggests that the broader interpretation applies to the statute and there therefore, economic development is included as one of its valid purposes.  The Attorney General further reasoned that if the Legislature wanted to, they could have used more limiting language by restricting the power of the Commission to circumstances where there was a valid “public use.”   Lastly, the Attorney General commented that since under these statutes, the Legislature allowed organizations other than strictly public or governmental bodies to purchase public lands, had the Legislature sought to restrict the statute to “public use,”  it probably would have restricted the purchasers to public or governmental organizations.

 

Op. S.D. Att’y. Gen. 08-02 (4/28/2008).

 

The opinion can be accessed at: http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?DocumentID=1556

The Johnsons own a unit at the Pine Harbor Condominiums (PHC).  Sheepshead Bay acquired an adjacent lakefront parcel to PHC separated from the Johnson’s unit by one common area. Sheepshead proposed to replace an existing seasonal cottage with a larger year-round dwelling about 500 feet from the Johnson’s property and 200 feet from the boundary line of the PHC property.  The Johnsons asserted that this larger proposed structure would interfere with the use and enjoyment of their unit and the common area in which they own an undivided interest. Since the proposed dwelling would lie within the wetlands buffer zone, a special use permit was required.  The Johnsons submitted a written document to the planning board, urging them to deny the special use permit since the application failed to satisfy the criteria set forth in the ordinance. The planning board granted the permit.

 

The Johnson’s appeal to the superior court was dismissed for lack of standing.  The trial court found that the Johnsons did not have an interest separate from that of the PHC board, and that when the PHC board decided to take no action to oppose the application, they did so on behalf of all of the unit owners.

 

The Supreme Court noted that the State Condominium Act provides that the board of directors shall have the irrevocable power as attorney-in-fact to act on behalf of the unit owners to grant and accept certain easements.  It also provides that a board’s by-laws shall specify the powers and duties of the board.   While acknowledging that the PHC bylaws give the board, among other things, responsibility for the common areas, the Court said, “Nowhere in the PHC Declaration or bylaws…is this authority said to be exclusive of the unit owners’ legal rights as individual property owners.” Further, the Court noted that the bylaws do not address participation in land use decisions regarding abutting properties, and that “there is no provision in the PHC declaration or bylaws granting the board the authority to contract away the standing rights of individual unit owners.”

 

Finding that the Johnsons had standing as a matter of law, the Court noted that their unit is approximately 200 feet from the Sheepshead parcel and less than 500 feet from the proposed structure, and that the proposed change is significant. The Court also noted that the Johnsons actively participated in the planning board hearing.  The Supreme Court reversed the trial court and remanded the matter.

 

Johnson v. Town of Wolfeboro Planning Board, 2008 WL 899274 (N.H. 4/4/2008). 

 

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/johns034.pdf

Marras was notified by the City ordinance enforcement officer on a number of occasions over a two year period that he was in violation of the zoning regulations regarding sign postings and placements. Specifically, he was informed that the parking of a vehicle advertising his business in front of his store, as well as the use of LED and Banner signs were prohibited. In each case, Marras complied with the requests to eliminate or relocate the offending signs. Marras then employed a man dressed as Santa Claus to hold a sign that read “Piano Sale” on one side and “Guitar Sale” on the other side.  The enforcement officer cited Marras for violating the portable sign prohibition in the zoning ordinance. Marras was ticketed for this incident when he refused to move the sign inside the store. A misdemeanor complaint was later filed against Marras not for the violation of the portable sign ordinance, but rather alleging a violation of the restrictions pertaining to right-of-way access.  After the State District Court dismissed the complaint because the relevant right-of-way in front of his store was defined vaguely, Marras filed a federal complain alleging First Amendment, due process and equal protection violations. The District Court previously dismissed the due process claim, and allowed Marras to amend the complaint to plead a “class of one” for purposes of equal protection.  In this opinion, the Court is responding to a request for summary judgment by the City to dismiss the rest of the claims.

 

As to the Plaintiff’s claim that the ordinance violates the First Amendment both facially and as applied to them, the Court reviewed the City’s thirty-three pages dedicated to sign regulation. The Court considered first whether the ordinance was content neutral or content based. Finding that the ordinance includes explicit exceptions to its general prohibitions, the Court determined that the regulations were not content neutral.  Specifically, the Court noted that three sections of the ordinance provided for certain exemptions/exceptions.  Finding that the regulations reach both commercial and non-commercial speech, the Court applied the strict-scrutiny test to the content-based restriction on the non-commercial speech; and the four-part Central Hudson, 447 U.S. 557 (1980) test to the regulations applicable to commercial speech.

 

With respect to the regulations pertaining to non-commercial speech, the Court found that even if they were to find the government interest in traffic safety and aesthetics to be compelling, the City has not satisfied the Court that the regulations are narrowly tailored.  Turning to the commercial speech aspects of the regulations, the court determined that the City has not set forth sufficient proof as to how restricting certain signs, while permitting others, directly and materially advances its interests.  Although the City did cite to other studies, the Court said it not explain the disparate treatment between different types of signs. Further, the City did not satisfy the Court that this part of the ordinance was narrowly tailored to achieve the desired result. The Court therefore denied the City’s request for summary judgment.

 

Marras v. City of Livonia, 2008 WL 835816 (E.D. Mich. 3/28/2008).

Following a negative declaration finding no impact on the surrounding environment by the proposed project, the planning board issued site plan approval for the construction of seven light industrial buildings on a 36.68-acre parcel of undeveloped land. A portion of this land has been identified as a potential habitat for the Karner Blue Butterfly, an endangered species.  The petitioner, Save the Pine Bush, Inc. and several of its members filed this lawsuit challenging the planning board’s determination. They claimed they had standing because they are an environmental organization dedicated in part to preserving the Karner Blue Butterfly, and that the proposed development would destroy the species’ habitat. Further, the petition claimed that ten of the petitioner’s individual members have a special interest in the preservation of the species because they actively look for, and observe these butterflies, as part of their recreational activities.  

                 

In upholding the finding of the trial court that petitioners lacked standing, the Appellate Court found that the interests these petitioners sought to protect, were no different that the interest enjoyed by the public at large, and that there was no specific environmental injury established to confer standing under the State Environmental Quality Review Act. While three of the organizational members resided in the Town, it was not established that any of them lived in sufficient proximity to the site to qualify for standing. Furthermore, the petitioner failed to submit affidavits from any individuals who might be adversely affected by the development in a manner different in kind and degree from that of the public at large.

 

Save the Pine Bush, Inc. v. Planning Bd. of Town of Clifton Park, 2008 WL 1048993 (N.Y. A.D. 3 Dept. 4/11/2008).

 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503595.pdf

The Hammers use a portion of their 291 acres for flying gas-powered remote controlled planes four to five days per week. In addition, Mr. Hammer, who built two runways for the remote controlled planes, hosts two annual weekend flying events attracting hundreds of enthusiasts. The Aviation Cadet Museum (ACM), a museum commemorating military aviators and located on 73 acres, operates a privately held public access airport on its land, and the take offs and landings from this airport pass directly through airspace over the Hammer’s property. At the time the ACM was established, it was aware of the use taking place on the Hammer property.  ACM received a letter from the FAA indicating no objection to their proposed use of the property for an airport runway, but they indicated that such determination did not preempt nor waive an local ordinances, including zoning. The South end of the ACM runway is approximately 500 feet from the north edge of Hammer’s flying area for the radio controlled planes, and the ACM runway has no lights delineating a field and no navigation system. The Hammers filed suit to enjoin the ACM form using its property as an airport alleging that the use constitutes a nuisance and violates their surface rights to the enjoyment of their property.  They later amended their complaint to include a claim of common-law trespass. ACM counterclaimed for nuisance claiming that the radio controlled planes were hazardous to pilots attempting to land full-scale planes at its airport. ACM sought to enjoin the Hammers from flying radio controlled planes on their land in the flight path of ACM’s airport.

 

The Circuit Court found that ACM’s airfield was a nuisance and issued an injunction to prevent ACM from allowing planes to depart and land therefrom until such time, if any, that it can demonstrate to the court that it could operate in a manner that did not constitute a nuisance and would not trespass on the Hammer property. ACM appealed, arguing that with only 24 take-offs and landings per year, the use of its property as an airport was not a nuisance.  

 

The Arkansas Supreme Court, reviewed the testimony in the record which the Circuit Court relied on, demonstrating that the use of the ACM airfield was dangerous not just to the Hammer’s property and the remote controlled plane operators (as well as the pilots of the full scale planes), but with respect to a public road that planes flew over at dangerously low altitudes, and that nearby residents complained of the noise from the planes using the ACM airport. The Supreme Court said that “the planes flew at an altitude low enough to interfere with the then-existing use of the Hammers’ property and posed a danger to the persons on the land beneath.  Such flight amounted to a nuisance.” Therefore, the circuit court did not abuse its discretion in issuing an injunction enjoining ACM from using its airfield for allowing planes to land and depart therefrom.   

 

Aviation Cadet Museum, Inc. v. Hammer, 2008 WL 1747086 (Ark. 4/17/2008).

 

The opinion can be accessed at: http://courts.arkansas.gov/opinions/2008a/20080417/07-830.pdf