The Colorado Court of Appeals ruled a county could not bar the operation of a commercial composting business in a zoning district where the business was not permitted as a matter of right, because it could not produce a zoning map establishing the property’s zoning (The Rohrbach family operates a horse manure composting facility on their 80-acre parcel of land in an unincorporated area of Elbert County, on the eastern plains about midway between the Denver and Colorado Springs metropolitan areas. A county official informed them in 2005 that the facility was not permitted as a use by right in the agriculture zone, and that they needed a temporary or special use permit. The Rohrbachs applied for temporary use permit, but withdrew the application before the county commissioners could act upon it. The board of commissioners then sued for an injunction against the operation. The trial court found in favor of the board, ruling it had established that its zoning regulations were properly adopted and that the parcel was zoned agricultural.

In their appeal, the Rohrbachs argued the board could not establish that their parcel was zoned agriculture because it had no copy of the official zoning map incorporated in the zoning regulations by reference. The appeals court noted that at trial the board introduced copies of zoning regulations adoptedin1983 that reference the “Official Zoning Map of Elbert County.” The regulations also state that the official zoning map and any amendments to it are to be filed in the county clerk’s office and made available to the public. The county clerk testified she had seen the map but could not locate it. In fact, the board was not able to produce either the original map or a copy of it. In an effort to establish the parcel’s zoning classification it introduced four historic maps. A 1966 map made part of the county’s 1966 regulations indicated the parcel was zoned agricultural. Those regulations were repealed in 1973. A 1973 map accompanying the 1974 zoning regulations also indicated the parcel was zoned agricultural. The 1974 regulations were repealed in 1978. An undated map accompanying the county’s 1978 zoning regulations, repealed in 1983, did not indicate the classification of the Rohrbachs’ parcel. A draft 1983 map that did not accompany the zoning regulations also did not indicate the classification of the parcel.

The court noted the issue before it was one of first impression in Colorado, and turned to the case law of other states for guidance. It discussed decisions from Illinois, Florida and New York, all of which concluded that lacking a zoning map, the zoning ordinance could not establish the location of zoning districts. For example, in the New York case, the municipality presented three maps, all dated 1962, in an attempt to establish the zoning districts. The court said it could not determine which map was the official one, effectively vitiating the ordinance. It said the determination in what zoning district property is located “should not be left to the village officials to decide from time to time by whim or caprice which one of three maps is the ‘official’ one.”

In this case, there was no question that the 1983 zoning regulations control the zoning of the Rohrbachs’ land, the court said. But because the text of the regulations relies on the map to establish zoning and the map was not produced, the trial court could not determine what zoning the board adopted. Therefore, as a matter of law, the board did not establish the zoning classification of the parcel. The court rejected the board’s argument that the other maps presented at trial established the zoning of the Rohrbachs’ land. Even assuming the content of the regulation could be established by secondary proof, the maps introduced were not enough to show the content of the regulation the board adopted in 1983.

Board of County Commissioners of Elbert County v. Rohrbach, 2009 WL 2782684 (Colo. App. 9/3/2009).

The opinion can be accessed at: http://65.45.99.70/opinions/opinion.cfm?opinionid=7301&courtid=1

Special thanks to James Lawlor, editor of the Land Use Legal Report for this abstract.  For subscription information contact Jim at landlaw@verizon.net

Regis College made plans to extend its campus by adding a facility for senior citizens which was claimed to further the College’s goal of intergenerational and life-long learning. The planned facility, dubbed the Regis East Project, was to include eight buildings, four of which contained classrooms, three libraries, faculty and administrative offices, dining areas, physical facility center, child care facility, adult care and training/educational facility and a woodworking shop.  The remaining four buildings were to house the residents of the Project.  The residents of the Project would average 75 years of age and would be accepted into the program after an application and interview.  Residency would require taking two academic courses per semester and a one-time entrance fee of approximately $700,000 to $1 million, ninety percent of which would be returned to the resident upon their leaving the Project. 

Regis College sought to have the Project determined exempt from the dimensional provisions of the Town of Weston Zoning By-Law by claiming it fell under the “educational use” exemption, and therefore subject only to reasonable regulations. After reviewing case law defining “educational” use, the Massachusetts Land Court determined that the primary purpose of the Project was not educational, and therefore did not fall under the exemption.  The court reasoned that, although educational use can involve non-traditional education and residential accommodations, the question centers on whether the dominant purpose of the Project is educational.  When the components of the Project were viewed as a whole, since the cost of monthly service were much higher than similar classes for the elderly, the size of the residential units far exceeded that of traditional dormitory housing, and two-thirds of the Project would be dedicated to housing, the court determined that the educational component seemed subordinate to Regis’s desire to provide elderly housing as a source of revenue for the college.     

Regis College v. Town of Weston, 2010 WL 10010 (Mass.Land Ct. 1/04/2010)

The Government Law Center has been examining the role of state and local governments in addressing various aspected of climate change mitigation and greenhouse gas reduction.  Below are links to two resources: the first is an article forthcoming in the Houston Law School’s Environmental & Energy Law and Policy Journal that reports on some state and local initiatives;  the second is a link to a presentation delivered last week at a conference sponsored by ELI, Columbia Law School, University of Virginia School of Law and Vanderbilt University Law School.

Can You Hear Me Up There? Giving Voice to Local Communities Impreative for Achieving Sustainability

Cooperative Federalism and Climate Change: Giving New Meaning to Think Globally Act Locally

In this Second Circuit decision the Defendants-Appellants appeal from a previous order form the U.S. District Court for the District of Connecticut which granted the granted the Plaintiff-Appellee’s motion for a preliminary injunction. The District Court concluded that the Plaintiff-Appellee had shown a clear likelihood of success on the merits of its claim that the town ordinance definition of an “adult oriented store” was unconstitutionally vague. The Circuit Court, however, vacated the preliminary injunction order and remanded the case. The ordinance in question, Berlin Code of Ordinances § 14-242, defines any establishment having “a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties as an adult oriented store.” The issue in this case became whether, in applying for a zoning application, the phrase “substantial or significant portion” of a business’s stock in trade is unconstitutionally vague. In its decision, the Circuit Court held that the District Court exceeded its allowable discretion by concluding that VIP has shown a clear likelihood of success on the merits of its claim that the phrase is unconstitutionally vague.

The property owned by VIP is located in a retail zoning district but because the property is located within 250 feet of a residentially zoned area, VIP may not operate a retail store at that location if it is classified as an “Adult Oriented Store” under Berlin’s sexually oriented business (“SOB”) ordinance. During its original application the ordinance defined Adult Novelty Store as “any establishment having significant portion of its stock and trade” in adult novelty products. When VIP submitted an application for a zoning permit it claimed that adult items only accounted for twelve percent of its stock. Despite this fact Berlin’s Zoning Enforcement Officer denied VIP’s zoning application claiming it would require an SOB license which VIP lacked. However, while VIP was appealing the Board of Zoning decision, the Berlin Town Council amended its SOB ordinance to its present language and thereby bringing up the question of whether this language is unconstitutionally vague.

In its ruling that the District Court exceeded its allowable discretion the Second Circuit first looked toward the Vagueness Doctrine which requires that laws be crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them. The Court looked at the issue of notice and found that the first way that a law may be unconstitutionally vague is if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits so that individuals can receive fair notice when a state has prohibited a specific conduct. In the case at hand, the court held “given the ordinance’s stated purpose, as well as the plain meaning of the ordinance’s words, the phrase ‘substantial or significant portion’ clearly encompasses not only the percentage of adult items sold, but also the absolute number of adult items sold.” The court found that the ordinance provided adequate notice that the size of VIP’s proposed inventory would qualify it as an adult-oriented” store under the ordinance.

After looking at the issue of notice the court then turned to whether the statute provided sufficiently clear enforcement standards. A court may determine that a statute provides adequate guidance if either: (1) the statue provides sufficiently clear standards to eliminate the risk of arbitrary enforcement; or (2) even in the absence of such standards, the conduct at issue falls within the core of the statute’s prohibition. On this issue the court found that because the portion of VIP’s business is devoted to adult merchandise is so substantial, VIP’s proposed retail establishment falls under the “core” of the ordinance’s prohibition. As a result of finding that the ordinance provided both sufficient notice as well as sufficiently clear enforcement standards the Circuit Court vacated the District Court’s preliminary injunction and remanded the case for further proceedings consistent with their opinion.

VIP of Berlin, LLC. v. Town of Berlin, 2010 WL 2522292 (2d Cir. 1/25/2010)

The opinion can be accessed here

Frizz-King Enterprises, LLC purchased 275 acres in an agricultural zoning district in Queen Anne’s County, Maryland and initiated the process to build a subdivision called “The Highlands.”  Although Frizz-King was able to obtain an adequate public facilities study pursuant to the County’s ordinance to determine the subdivision’s impact on water, sewer, traffic and schools, Grasslands Plantation, Inc, the owner of the adjacent property, continued to oppose the subdivision in a series of hearings before the Board of Appeals and Planning Commission.  Grasslands argued that the proposed subdivision was incompatible with Maryland Code provisions, the Queen Anne’s County Comprehensive Plan and provisions of the Queen Anne’s County Code.  The Commission approved the proposed subdivision and in doing so, ignoring the insistence of both parties, failed to make any findings of fact. 

Shortly before oral argument on appeal to the Court of Special Appeals, the County enacted two ordinances, the “Conformity Act” and the “Emergency Service Ordinance,” both of which imposed on the Commission a stricter standard of compliance with the County’s Comprehensive Plan when approving a subdivision.  The court affirmed the decision without consideration of the intervening legislation.  Grasslands appealed the determination, arguing that the board improperly placed the burden of proof on it as the appellant and that the newly enacted provisions should have been applied in the proceedings. 

The Court of Appeals first determined that the Board’s de novo proceedings were an “entirely new hearing at which time all aspects of the case should be heard anew, as if no decision has been previously rendered.”  The court went on to hold that in light of the purely de novo nature of the proceedings, the burden of proof should have remained on Frizz-King to establish that its proposed subdivision satisfied the requirements of the Queen Anne’s County Code.   

On the issue of the newly enacted legislation, the ­­­court determined that the ordinances should have been retrospectively applied to the development’s approval determination.  The Court held that since the Emergency Service Ordinance was substantive law it should be applied at the new hearing because it is the law in effect at the time of the hearing and does not impair vested rights.  In addition, it held that the Conformity Act, an arguable procedural law change, shall also apply, notwithstanding contrary caselaw, as the Commission’s or Board’s process of making its decision will “begin anew” for an independent reason, namely, the burden of proof.  The court reasoned that the proper analysis for determining the retroactive application of a procedural law change turns on “what aspect of the administrative/adjudication process is changed, at what point in the administrative/adjudication process the change is made, and the question presented to the reviewing court.”  The court remanded the case and directed the Board or Commission to apply the ordinances to the determination. 

Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC, 2009 WL 2591262 (Md.8/25/2009)

The opinion can be accessed at: http://mdcourts.gov/opinions/coa/2009/117a08.pdf

There are several processes that go into manufacturing leather, including one called beaming. Since 1981, Androme has been involved in the leather manufacturing process but has not engaged in beaming activity.  Another facility in the area, JFB, has been involved with beaming since 1968. In 1988 the district in which both Androme and JFB is located was re-zoned as “M-1.” This resulted in the facilities in the area not being permitted to process leather, including beaming. Facilities that were already involved in the process however were permitted to continue. In October of 2000, Androme submitted a permit to the City in order to be allowed to add the beaming process to their facility. Their permit was denied as well as their appeal to the zoning board.   Androme alleged that by denying their permit to beam but still allowing the JFB plant to continue their beaming process violated their equal protection rights under the 14^th amendment because it treated Androme differently from other similarly situated individuals.

 The Court first addressed the issue of whether or not Androme and JFB have a high degree of similarity. The Court concluded that they did not. Unlike JFB, Androme has never engaged in the beaming prior to the re-zoning. As a result, the process in which the two companies go about applying/reapplying for the permit is different. Specifically, Androme needs to seek approval from the zoning board since the use is not allowed in the district, whereas JFB  does not because they are a grandfathered in nonconforming use. Further the Court noted that there is no evidence that financial records of the two companies are similar. Androme also failed to introduce evidence that they were treated differently than JFB,a nd they failed to introduce sufficient evidence to show that the zoning board acted irrationally with no legitimate reason for its decision. Therefore the federal district court dismissed the Equal Protection Clause claim.

Androme Leather Corporation v Gloversville , 2010 WL 199718 (N.D.N.Y. 1/14/10)

When Alfred Huard purchased property in a residential zone, he intended to use it for both a residence and operating his transmission repair business.  Although the prior owner had obtained a use variance in 1985 which permitted repair of “carburetors, fuel pump alternators, etc.,” two years after moving in, Huard received a letter stating that operation of a transmission repair business was not allowed in a residential zone.   The letter further stated that the 1985 use variance had expired due to non-use for one year or longer.  Huard did not appeal; however, he did apply for a new use variance, which was denied.  Without filing a motion for rehearing, Huard filed a petition for injunctive relief and declaratory judgment. 

Two months before Huard filed his petition, the town voted to repeal the ordinance under which the 1985 variance expired.  In light of this change, the town and Huard entered into a stipulation which stayed Huard’s action pending further proceedings at the local level and allowed Huard to resume use of the premises for his repair business, pending a resolution of the Petition.  In accordance with the stipulation, the town’s administrative official issued a decision stating that the variance remained in effect and encompassed Huard’s transmission business.  Owners of the property abutting Huard’s appealed the decision to the Zoning Board of Appeals (“ZBA”) who reversed the decision, holding that the variance had expired many years earlier and thus could not be revived simply because the ordinance had changed.  Huard filed a motion to enforce the settlement, which the court denied.   The town then filed two motions for summary judgment, arguing that jurisdiction was lacking as Huard failed to exhaust his administrative remedies and that the ZBA’s determination was not an unconstitutional taking; both motions were granted. 

On appeal, Huard argued that the stipulation limited the scope of the proceeding to whether Huard’s business was within the scope of the 1985 variance and therefore the ZBA’s decision contravened the terms of the agreement.  The court disagreed, and determined that the stipulation did not limit the appeal proceeding and therefore the ZBA did not err in denying Huard’s position.   Additionally, Huard argued that the court erred in granting the town’s motions.  The New Hampshire Supreme Court upheld the granting of the town’s motion for summary judgment based on Huard’s failure to exhaust administrative remedies since, although he was not required to exhaust his administrative remedies if the question was one “peculiarly suited for judicial rather than administrative treatment,” the question of whether the expiration provision applied to the variance was not a question of this sort.  Additionally, the court held that with respect to his takings claim, Huard failed to demonstrate that a genuine issue of material fact existed as to whether the value of his property had been reduced.  The court noted that Huard had purchased the property for both business and residential and his ability to live in the house was unaffected by the lack of the use variance and thus a taking was not established under either the state or Federal constitutions. 

Huard v. Town of Pelham, 2009 WL 5150346 (N.H. 12/31/2009)

This opinion is available at: http://www.courts.state.nh.us/supreme/opinions/2009/huard146.pdf

Plaintiff, a common interest community contracted with the original declarant to be developer of the condominium.  The original declarant (the bank quitclaimed all rights to the current declarant/defendant in 2002) reserved to itself special declarant rights, including the right to complete improvements on the land, and to exercise development rights on the land.  However, these rights could only be exercised so long as the declarant was obligated under warranty or other obligation to the condominium.  In 2005 the current declarant sought to commence construction of additional condos.  The zoning board approved the units and plaintiff commenced this action seeking a permanent injunction to prohibit declarant from building.  Plaintiff contends that declarant’s special rights have lapsed and declarant no longer owes an obligation to the condominium association.

The trial court granted summary judgment to the plaintiff, reasoning that the declarant never had an obligation to build any of structure located on the land because the declaration authorized the declarant to withdraw the land underlying phase two of development. 

On appeal the declarant argued that he did have an obligation to the association because under phase two of the condominium site plan two structures, a gazebo and a club house, were not marked “need not be built.”  General Statutes § 47-280(a) provides “except for improvements labeled ‘need not be built’, the declarant SHALL complete all improvements depicted on any site plan”.  Declarant further alleged that the trial court read an exception into § 47-280(a) that does not exist, namely, an exception for improvements that are listed on land that the developer has reserved the right to remove from development. 

 The Connecticut Supreme Court looked to the language of § 47-280(a) and found that the statue clearly and unequivocally obligates a developer to complete all improvements depicted on the original site plan that are not labeled “need not be built.”  They further noted that “shall” suggests a mandatory command and also give a test for determining whether the statute is mandatory.  The test states that a statute is mandatory if it is a matter of substance (as opposed to a matter of convenience – provisions designed to secure order or system and dispatch proceedings).  Because the sole purpose of the statute was to obligate a declarant to complete all improvements, it was apparent to the court that the completion requirement is a matter of substance and therefore mandatory. The court also noted that the legislature could have added an exception to the statute if they so desired. 

Southwick at Milford Condominium Ass’n, Inc. v. 523 Wheelers Farm Road, Milford, LLC, 984 A.2d 676 (Conn. 12/22/2009)

The opinion can be accessed at: http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR294/294CR844.pdf

In September 2007 the Building Commissioner for the town of Littleton issued a zoning enforcement order to the plaintiffs, citing that the operations conducted on premises   (Reiki practice) were not in compliance with their 2002 variance (permitting the accessory building on the plaintiff’s property to be used for a Reiki practice subject to a parking and employee restriction).

 Plaintiff’s claim that the Aquarius Sanctuary Center for Higher Learning and Healing (Center) was formed as a non-profit corporation and as such, is exempt from zoning regulation under the educational use exemption in G.L. c. 40A §3 (“No zoning ordinance or by-law shall … prohibit, regulate or restrict the use of land structures… for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by religious sect or denominations, or by a non-profit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations…”) The court found that under G.L. c. 40A §3 there are two requirements which must be met in order to qualify for this statutory zoning exemption.  First, the use must be for educational purposes and second, the land used for educational purposes must be owned or leased by a non-profit educational corporation.  There is no dispute as to the second prong of the test.  The issue is whether the center operates on the Premises “for educational purposes.”

 The Supreme Judicial Court of Massachusetts has interpreted “for educational purposes” to mean education is the “primary or dominate purpose,” Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757, 759-60 (1985). The Massachusetts Land Court found that although the plaintiff provided the court with schedules of activities from the Center (counseling and healing services, workshops, programs and readings) they failed to meet their burden of proving the dominant and primary purpose of the Center was for educational use. 

Aquarius Sanctuary Center for Higher Learning and Healing, Inc. v. Zoning Bd. of  Aquarius and Sanctuary Center for Higher Learning and Healing, Inc. v. Zoning Bd. of Appeals of Town of Littleton, 2009 WL 4856797 (Mass.Land Ct. 12/17/2009)

Plaintiff submitted a site plan application to the zoning board (ZB) for approval to build a five-unit elderly housing development.  After a public hearing, the ZB denied Plaintiff’s application.  Plaintiff appealed to the Superior Court which also denied the application finding that Plaintiff failed to comply with New Hampshire Administrative Rule, Hum 302.03 (requiring services and facilities to meet physical and social needs of older persons).  Plaintiff again appealed arguing (1) the language of the Nashua Land Use Code (NLUC) § 16-81(c) is clear and only requires plaintiff to show certification that he will comply with applicable human rights commission regulations, and (2) enforcement of Hum 302.03 is not within the ZB’s jurisdiction.

The Court found that the NLUC § 16-81 requires the plaintiff to meet the standards set forth in Hum 302.03 (housing opportunities for older persons).  “Housing developed in this section must be established and maintained in compliance with all applicable state and federal laws with respect to such housing and/or medical care, including … Hum 300 et seq” (NCLU § 16-81).  When read together the court said that it is clear that proof is required to show that Plaintiff is complying with the applicable rules and regulations of Hum 302.03.

The court denied Plaintiff’s second argument finding that the denial of Plaintiff’s application is not characterized as “enforcement” of Hum 302.03, but rather as part of the boards “review” function.  The court reasoned that the board applied Hum 302.03 to determine is approval was necessary. 

Ferson-Lake, LLC v. City of Nashua, 2009 WL 4825167 (N.H., 12/16/2009).

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2009/ferso139.pdf