Applicants applied to the Valencia County Board of County Commissioners to change a zoning status on adjacent properties from Agricultural Preservation to Rural Residential to allow for a planned residential subdivision. The Board approved the change in a 3-2 vote. The Commissioner, a first cousin of one of the applicants, voted in favor of the change. When asked if she should have recused herself, she stated that she was not “that close” with the applicant and that the Board’s attorney said she did not need to recuse herself. Los Chavez Association and other individuals appealed the decision to district court on the grounds that the decision was “arbitrary and capricious” as well as on a denial of fundamental due process rights because the Commissioner did not recuse herself. The district court reversed citing the failure to recuse as a “due process violation.” The Appellants filed an appeal.

The Court affirmed the decision of the district court and remanded to the Board. The Valencia County Ordinance 2004-05 § 154.061 (B)(3)(a) (2004) provides that the Board is the “ultimate decision-making body for zone changes.” Those that sit on boards deciding applications for changes in zoning act in a “quasi-judicial capacity.” The Court held that “presiding board members must act like a judicial body bound by the same ethical standards comparable to those that govern a court in performing the same function.” Citing High Ridge Hinkle Joint Venture, 119 N.M. at 40, 888 P.2d at 486.

The Appellants argue that the Zoning Ordinance for Valencia is silent on matters of recusal and furthermore, the New Mexico Code of Judicial Conduct “requires recusal only when a party to a proceeding is within the third degree of relationship to the judge.” The Appellants point out that first-degree cousins are considered fourth-degree relatives. However, the Court found that the Constitution of New Mexico demands a higher standard.

“No justice, judge, or magistrate of any court, shall, except by consent of all parties, sit in any cause in which either of the parties are related to him by affinity or consanguinity within the degree of first cousin, or in which he was counsel, or in the trial of which he presided in any inferior court, or in which he has interest.” N.M. Const. art. VI § 18

The Court held that the Supreme Court of New Mexico “has determined it to be imperative that when governmental agencies adjudicate the legal rights of individuals they use the procedures which have traditionally been associated with the judicial process.” Citing Reid v. N.M. Bd. of Exam’rs of Optometry, 92 N.M. 414, 416, 589 P.2s 198, 200 (1979). The New Mexico Constitution’s due process clause mirrors the federal one. Due Process requires a hearing to be free from any form of bias. A relationship between a judge and an applicant leads to a presumption of bias. “By incorporating Article VI, Section 18 into [the] Constitution, New Mexicans have decided that absent consent, a judge cannot hear a case in which a first cousin to the judge is a party, and this is because there is a presumption of bias.” Furthermore, the Court felt that this due process safeguard would not materially inhibit the execution of governmental business in Valencia, and thus, the Commissioner should have recused herself.

Loc Chavez Community Association v. Valencia County, 2012 WL 1708460 (N.M.App.3/20/2012)

The opinion can be accessed at: http://coa.nmcourts.gov/documents/opinions/Los%20Chavez%20FO.pdf

The Town of Ramapo passed a number of resolutions and enacted a local law to make way for a housing development project.  To do this, the Town changed the zoning designation of a section of property on the Village of Pomona border from single-family residences only to a designation that permitted multi-family dwellings of eight units per acre. 

 

The Village sued, challenging the Town’s rezoning actions on several grounds, including claiming that the Town violated the State Environmental Quality Review Act (SEQRA) by failing to take a hard look at how the decision would impact the character of neighboring communities; that the Town violated the General Municipal Law provisions requiring that adjacent municipalities be given notice and an opportunity to be heard before a municipality makes a decision likely to affect abutting municipalities; and that the Town violated its own Comprehensive Plan.  Requested relief included the invalidation of the Town’s rezoning law and review of the Town’s SEQRA findings, amendment of its Comprehensive Plan and its decision to rezone the property.

 

The Town, and its co-defendants, moved to dismiss the petition on several grounds, challenging the Village’s capacity to sue and standing.  The trial court granted the motions to dismiss and the Village appealed.

 

The appellate court upheld the dismissal of all but two of the claims, affirming that the Village had no cognizable interest in the Town’s compliance with its own comprehensive plan and that the Town had fulfilled provisions of the General Municipal Law requiring notice to adjacent municipalities by providing notice and allowing the Village to participate in public hearings, even if the Town disregarded the Village’s concerns.   But the Second Department held that the lower court had erred in dismissing the Village’s SEQRA and General Municipal Law procedural claims for lack of standing.

 

In order to establish standing to bring a claim under SEQRA, the Village had to show that it would suffer a unique environmental injury not shared by the public at large and that the anticipated injury fell within the zone of interests SEQRA was designed to protect.  The Village cited potential threats to community character from the development project; demonstrated interests which the court felt fell within SEQRA’s mission and were sufficient to establish SEQRA standing. 

 

Similarly, the procedural challenges brought by the Village under the General Municipal Law should not have been dismissed for lack of standing.  The court held that an adjoining municipality has the same interest as individual citizens in ensuring the Town complies with the procedural requirements of the General Municipal Law § 239-m when adopting rezoning laws.  While the Town may have facially complied with the procedural requirements, the court found that there was still some question as to whether the Town adequately complied with the spirit of the law.  For that reason, the Village had a legitimate cause of action in challenging the adequacy of the Town’s compliance, as well as the standing to bring that cause of action.

Village of Pomona v. Town of Ramapo, 2012 WL 1415120 (N.Y.A.D. 2d Dept., 04/24/12)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34421.pdf

The petitioners and respondents own adjoining parcels of property in a residentially zoned district.  The property is located in the Town of Amsterdam, Montgomery County.  The respondents  operate a junkyard as a preexisting nonconforming use, predating the Town’s 1972 enactment prohibiting this type of use in a residential zone.  In 2007, the respondents applied for a use variance to construct a garage on their property for business purposes.  The Zoning Board of Appeals approved the petitioner’s application and issued a building permit.

The petitioners brought an Article 78 proceeding challenging the Zoning Board’s issuance of the use variance.  In response, the respondents requested the Zoning Board to conduct a rehearing where the petitioners may speak in opposition of the application.  The rehearing resulted in the board’s unanimous approval of the petitioner’s application and issuance of a building permit. 

The petitioners brought a second Article 78 proceeding, again challenging the Zoning Board’s issuance of the use variance. The respondents received site plan approval and were issued a certificate of occupancy, and began building the garage structure.  The construction took place in plain view to the petitioners, who took no other action than to commence another Article 78 proceeding challenging the site plan approval and seeking removal of the garage building and a directive ordering the respondents to cease and desist use of their property for junkyard purposes.

 The trial court consolidated these proceeding into “Nos. 1 and 2”.  Subsequently the court also granted a motion by the Zoning Board, joined by the respondents, to dismiss both proceedings as moot, given that the garage had been fully constructed and petitioners failed to seek injunctive relief.  The petitioners appeal.

The Appellate Court starts by outlining the use of the doctrine of mootness .  The court explains that mootness is, “invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.”  Further, in regards to completed construction projects, such as the garage at issue, relief is “theoretically available” since a structure can be destroyed.  However, the court must take into consideration several factors including; how close to completion the project is, and whether the petitioner failed to seek preliminary injunctive relief during the pendency of the litigation. These factors are weighed against the factors of respondent’s bad faith and lack of authority.

Considering this outline of mootness in regard to construction projects, the court found that the petitioners failed to even attempt to obtain injunctive relief while litigation was pending, despite respondents building the garage via open, visible, and ongoing construction.  The factors of bad faith and lack of authority were found by the court to be outweighed by the factors in favor of mootness.  The Appellate court affirmed the decision rendering the proceedings as moot.

Kowalczyk v. Town of Amsterdam Zoning Board of Appeals, 2012 WL 1623003 N.Y.A.D. 3 Dep’t 05/10/2012)

Available Online At: http://decisions.courts.state.ny.us/ad3/decisions/2012/512553.pdf

Kabro Associates, LLC applied for a special exception permit with the Town of Islip Zoning Board of Appeals (ZBA) to extend its off-street parking lot and extend its floor space into its rear lot pursuant to conditions imposed by the Town of Islip Planning Board when they attempted to obtain a special permit for a restaurant on the property. The front portion of the lot owned by Kabro Associates was zoned as a Business 1 District where the rear portion of the lot was zoned as a Residence A District. At the hearing to determine the special exception permit, Kabro Associates presented expert testimony showing that the proposed changes would not negatively impact surrounding properties or make traffic conditions worse. There was a general objection from residents in the neighborhood to the proposed changes. The ZBA denied the permit.

The trial court denied the petition and the appellate court reversed. The Court determined the ZBA’s conclusion “that the proposed development would fail to comply with the applicable legislatively imposed conditions, and its concomitant determination to deny the petitioner’s application, was arbitrary and capricious.” Zoning board determinations are given great deference but can be overturned based on a finding that the action was illegal, arbitrary and capricious, or an abuse of discretion. “In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis. Under this standard, a determination should not be disturbed unless the record shoes that the agency’s action was arbitrary, unreasonable, irrational or indicative of bad faith.” Citing Matter of Rendely v. Town of Huntington, 44 A.D.3d 864, 865. “A determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis.” citing Matter of Cacsire v. City of White Plains Zoning Bd. of Appeals, 87 A.D.3d 1135, 1137. “An owner seeking a special exception permit is only required to show compliance with any legislatively imposed conditions on an otherwise permitted use.” See, Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d at 195.

The concern of neighboring property owners was not supported by empirical data, and was “contradicted by the expert testimony.” The petitioner was also supported by the Town of Islip Department of Planning and Development. Thus, the determination by the ZBA lacked “rational basis,” and the Court remitted the matter to the ZBA to issue the special exception permit and to impose any conditions or restrictions appropriate.

Karbo Associates, LLC v. Town of Islip Zoning Board of Appeals, 2012 WL 1699940 (N.Y.A.D. 2 Dept)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34911.pdf

A New York appellate court explained that stipulations of settlement are not enforceable unless “definite and complete.”  Since the stipulation in this case was ambiguous as to whether the campground tenants could remain on the campground regardless of whether timely site plan approval was obtained, and as the parties did not agree which Town of Warwick zoning ordinances would control the tenants’ obligations to “bring the campground up to snuff” and obtain “the necessary town and county health department approvals,” the court agreed that the stipulation was not definite enough to be enforceable. 

Town of Warwick v. Black Bear Campgrounds, 2012 WL 1605761 (N.Y.A.D. 2 Dept. 5/8/2012)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34843.pdf

Kuleana Ku’ikahi LLC filed a petition requesting the Land Use Commission (LUC) issue a declaratory ruling determining that neighboring land was being used in violation of state and county laws. Kuleana raised seven issues (1) The current use of the land is in direct violation of state and county laws pertaining to the use of agricultural lands, (2) It was improper for the County to approve agricultural subdivisions without ensuring that there was an adequate supply of water, (3) Native Hawaiians have a right to use a local stream and that right is being adversely affected by the removal of water for the subdivisions, (4)the current land uses do not comply with constitutional and statutory provisions regulating agricultural land use, (5) The County system of enforcement does not comply with the statutory provisions regulating agricultural lands, (6) Current and proposed uses will create a disruption to natural flows of water and therefore hurt the ecosystem, (7) The land along the local stream require protection and preservation. 

The LUC dismissed issues 2, 3, 4 and 6 because it lacked jurisdiction. It dismissed issue 7 because Kuleana had not shown any ownership in the neighboring lands. It set aside issues 1 for hearing as to whether a declaratory judgment was appropriate and set aside issue 5 for hearing only upon an affirmative finding as to issue 1. The LUC determined that Kuleana failed to meet their burden of proof that the present uses are in violation of applicable state laws. Kuleana appealed to the circuit court which affirmed the LUC’s decisions. 

On appeal, the Intermediate Court of Appeals of Hawaii determined that the LUC properly limited its jurisdiction to issues of state law in dismissing issues 1 and 2. Kuleana argues that the LUC has the jurisdiction to require that counties fulfill their responsibilities regarding zoning enforcement. However, the court found that it is the counties, not the LUC, that are granted the power to enforce and regulate zoning. As an administrative agency, the LUC can only wield powers expressly or implicitly granted to it by statute and implied powers that it may have are limited to those reasonably necessary to make an express power effective. This is not the case with regulating and enforcing zoning and the LUC Correctly dismissed issues 1 and 2 for lack of jurisdiction. 

The court next determined that, without the need for a reclassification of district boundaries, the LUC did not have jurisdiction over issues 3, 4, 6 and 7. Kuleana cites HRS §205-17 which requires the LUC to take into account the preservation or maintenance of cultural, historical or natural resources when considering a petition for reclassification of district boundaries. However, a district boundary amendment was never sought and was not needed, therefore the LUC did not have jurisdiction under HRS §205-17. 

Further, Kuleana argues that the LUC has jurisdiction over issues 3 and 4 to order the subdivisions to comply with the laws regarding traditional access rights under the Hawaii Constitution. They make a similar argument regarding issues 6 and 7 claiming that the state and its subdivisions (LUC) have a duty to protect, control and regulate the use of water resources for the benefit of the people. The court acknowledges that such a duty exists, however it also applies to the County and the County had already answered the issue in approving the subdivisions. HRS §91-8 holds that declaratory relief is not meant to allow review of concrete agency decisions or which other means of review are available. Because of this, the declaratory relief sought by Kuleana would be inappropriate as it would essentially mean the court reviewing the County’s approval of the subdivisions.   

Kuleana Ku’ikahi, LLC v. State Land Use Comm’n, 2012 WL 1510188 (HI Ct. App. 4/27/2012)
The opinion can be accessed at:

http://www.courts.state.hi.us/docs/opin_ord/ica/2012/apr/ica29250mop.pdf

 

 

 

Petitioners owned property that was used as a multi-family dwelling.  The petitioners applied for a nonconforming use variance from the relevant zoning code, which was enacted in 1934. The Zoning Board of Appeals of the Town of Huntington held a public hearing and determined that the petitioner failed to establish that the continuous nonconforming use of the property as a multi-family dwelling began prior to 1934. Therefore, the Zoning Board denied that branch of the petitioner’s application.

The petitioners brought this Article 78 proceeding seeking review of the determination of the Zoning Board.  The trial court found in favor of the petitioners and granted the petition, annulled the determination, and directed the Zoning Board to approve the petitioner’s application.

 The appellate court found that the trial court properly annulled the determination of the zoning board.  The court determined that the Zoning Board’s decision was without rational basis and was not based on the evidence in the record.

Tomich v. Lowery, 2012 WL 1415416 (N.Y.A.D. 2 Dep’t 4/24/2012)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2012/2012_03206.htm

A group of Howard County residents brought suit against the county challenging over 100 land use actions taken by the County over the last two decades. They sought declaratory judgment that the acts, because they violated the County Charter, were invalid. 

The County Charter states that any change to the County Plan, Zoning Regulations or map is a legislative act and may only be passed by bill in accordance with legislative procedure and may be petitioned to referendum by the people of the county. The residents (plaintiffs) claim that the County circumvented the residents’ right of referendum by using resolutions rather than bills or by delegating “legislative” decision making to administrative agencies. In response, they brought suit in federal court but the court found that they lacked standing and dismissed the case so that the plaintiffs could bring suit in state court.  

The state circuit court dismissed the case finding significant issues with standing, the number of individuals affected by declaratory relief and statutory remedies that were not pursued by the residents before bringing suit. The residents appealed. 

In considering whether the failure to include necessary parties in the suit warranted dismissal, the Court noted that ordinarily, dismissal is undesirable and that courts tend to prefer an amendment joining the necessary parties even if it makes the litigation extremely unmanageable. This is the case here as, with the hundreds of acts challenged, there is bound to be a great number of people who are potentially affected, making the case complicated and unmanageable. Nevertheless, dismissal is not warranted solely on the basis of a lack of necessary parties. 

Second, in considering the failure of the Plaintiff’s to exhaust administrative remedies, the court noted while it is true that many of the challenged actions could trigger exhaustion concerns, it is unlikely that each and every one of them would and thus dismissal of the case on these grounds would be inappropriate. 

The court found that the Plaintiffs have a much more significant obstacle in proving their standing.  The plaintiffs claim that they have standing because their rights as voters were infringed upon by the county’s circumvention of the referendum procedure. Generally, alleged failures in a petition process or electoral issues are enough to create standing. Here, however, the voting issue is in the background of the plaintiffs’ claim and several steps removed as their grievance could be litigated without any reliance on voting rights. While the court acknowledges that referendums are an important component of voting rights, it does not become an actionable issue unless the referendum has reached the critical point in which its occurrence is guaranteed. Here, the occurrence of the referendum was not guaranteed as it was only triggered after between 1500 and 5000 signatures could be obtained for a petition. Only then was the right to vote implicated. Because there was no guarantee that the signatures would or could be obtained, the referendum never reached that critical point implicating voting rights and the plaintiffs are left with an abstract, generalized interest in the county’s compliance with the charter. Therefore they lacked standing and the Court affirmed the dismissal of the suit. 

Kendall v. Howard County, 2012 WL 1201476 (Md. Ct. Spec. App. 4/11/2012) 

The opinion can be accessed at: http://mdcourts.gov/opinions/cosa/2012/0235s10.pdf

A Property owner claimed that he had a vested right to complete development of a 59 lot subdivision. The Department of Land Conservation and development (DLCD) sought review of the county planning director’s determination that the owner did have a vested right and the Circuit court affirmed the director’s decision. The Court of Appeals reversed and remanded but the Supreme Court of Oregon remanded back to the Court of Appeals for reconsideration.

Generally, whether a vested right to complete a development exists is dependent on a number of factors. Although no bright line test exists, courts should consider the ratio of expenditures incurred to the total cost of the project, good faith on the part of the land owner, notice of any zoning changes before starting the improvements, the types of expenditures, the kind of project, the location and the ultimate cost of the project.                   

In applying this test to past cases, the Supreme Court determined that in most cases, all of the factors will not apply and that the expenditure ratio should be the starting point for any analysis. In this case, the circuit court determined, incorrectly, that a specific determination of the denominator in the ratio of investment to total cost of development is not required in every case. The Appellate court found that, without those findings, the county was in no position to determine whether the landowner’s expenditures were substantial. They again reversed the ruling of the circuit court and remanded. 

State ex rel. Dept. of Land Conservation & Dev. v. Crook County, 248 Or. App. 602, 604, 274 P.3d 260, 261 (2012)

Plaintiff owned twenty buildings. The city found that the property was a nuisance and notified him that it intended to demolish 15 of the buildings that were substandard. Plaintiff sued to enjoin the demolition and the parties agreed that the Plaintiff would bring all 15 buildings into compliance with the city’s code. He failed to do so and the city again notified him of their intention to demolish the buildings. The plaintiff sued again but nonsuited the case and subsequently the city demolished all but two of the buildings. 

After failing in federal court, the Plaintiff filed suit in state court alleging an unconstitutional taking. The trial court granted summary judgment to the City and the appellate court affirmed as to all but 4 of the buildings there were not subject to the earlier failed agreement. The court determined that there were issues of fact as to existence of violations of the city’s building ordinances. The City again moved for summary judgment and the trial court granted it holding that the Plaintiff’s failure to pursue an appeal of the administrative nuisance finding barred his takings claim. The appellate court affirmed. 

In considering the 4 buildings that were demolished but not subject to the agreed order, the Texas Supreme Court held that a party asserting a taking based on an allegedly improper administrative nuisance determination must appeal that determination and assert his takings claim in that proceeding. While the plaintiff did indeed appeal the determination initially, he nonsuited the case. Because a party is precluded from raising a constitutional claim deriving from an administrative determination in a separate proceeding, the Court affirmed and the plaintiff’s takings claim is barred.  

Patel v. City of Everman, 361 S.W.3d 600 (Tex. 2012) 

The opinion can be accessed at:  http://www.supreme.courts.state.tx.us/historical/2012/jan/090506.pdf