Neighbors challenged the decision of the county health-environmental sanitation division that found no negative environmental impact for a proposed 21-unit residential and one commercial lot subdivision that was subsequently approved by the planning board. Although the petitioners claimed that the Department failed to meet its statutory obligations in “regulating the sanitary aspects of water supplies and sewage disposal and controlling pollution of waters,” the appellate court noted that they will not second guess “thoughtful agency decisionmaking.” The Court noted that the agency took three years to make its review, during which time it conducted a comprehensive and extensive review of the project that included, among other things, site evaluations, results of soil and well testing, and  a report from a geologist.  Although the petitioners offer other expert opinion, the Court explained that the agency is free to rely on the expert opinion of others. Lastly, the Court noted correspondence from the agency to the applicant where the agency’s engineer identified items that needed to be addressed, and presumably were addressed prior to final approval.  Therefore, the court upheld the agency’s determination as neither arbitrary nor capricious, and neither irrational nor in violation of law.

Dugan v Liggan, 2014 WL 5470805 (NYAD 3 Dept. 10/30/2014)

The opinion can be accessed at: http://law.justia.com/cases/new-york/appellate-division-third-department/2014/517934.html

Sunrise Detox V, LLC. wanted to establish a facility for individuals recovering from addiction in a building that was formerly used as a nursing home. However, because the site was located in the city’s R2–2.5 zoning district, Sunrise’s proposed facility would have to qualify as a “community residence” or a “domiciliary care facility” and be granted a special permit from the city’s Common Council in order to operate within the city’s zoning ordinance.  The Commissioner of the City’s Department of Building determined that the facility did not qualify as a community residence and that, as a result, the city could take no further action on the application until Sunrise either applied for a variance or appealed the determination.  Instead of applying for a variance, Sunrise brought this action alleging intentional discrimination, disparate impact discrimination, and failure to grant a reasonable accommodation in violation of the Americans with Disabilities Act (“ADA”).

The Second Circuit first noted that the Supreme Court held in Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) that  a takings claim would not be ripe until the government entity responsible for implementing the regulations has “reached a final decision regarding the application of the regulations to the property at issue.”  This is because a non-final decision on how a parcel of land may be used does not ordinarily give rise to an injury that is sufficiently concrete and particularized to satisfy the case or controversy requirement of Article III of the U.S. Constitution.  While the court admitted that Williamson County involved a challenge to a regulatory taking, the final-decision requirement was not to be strictly confined. In this case, because only after Sunrise completed the process would it be known whether the allegedly discriminatory decision of the official had any effect at all on Sunrise’s application, the court reasoned that a plaintiff alleging discrimination in the context of a land-use dispute was subject to the final-decision requirement unless he could show that he suffered some injury independent of the challenged land-use decision.  Since plaintiffs in such cases must first provide the governmental entity an opportunity to accommodate them through the entity’s established procedures, the court found that Sunrise’s failure to submit at least one meaningful application for a variance deprived the government entity the opportunity to do so.  Accordingly, the Second Circuit found the claims not yet ripe and affirmed the holding of the district court to dismiss the plaintiff’s claims.

Sunrise Detox V, LLC v. City of White Plains, 2014 WL 4922130 (2nd Cir. 2014)

John Shearl (“Petitioner”) owned property directly off Highway 28 in Highlands, on which he operates a business entitled, “J & J Lawn and Landscape.”  On 19 August 2009, Respondent issued a zoning violation notice to Petitioner, which stated that he was making commercial use of property zoned for residential use.  Petitioner appealed to the BOA, which ruled in favor of the Respondent. The Superior Court affirmed this holding, and Shearl again appealed, contending that the Superior Court erred by concluding that the evidence established the existence of a zoning violation when the notice of violation was issued. In the alternative, Petitioner argued that the Superior Court erred by determining that he had the burden of proving that his nonconforming use was grandfathered in under the terms of the zoning ordinance given that the Town of Highlands (“Respondent”) has lost an official zoning map crucial to his defense.

Respondent contends that the 1993 Plat Map, the 1996 Zoning Map, and the GIS printout entitled “Current Zoning Map” constitutes competent, material, and substantial evidence that the current zoning line on Petitioner’s property runs 150 feet parallel from the centerline of Highway 28. Although testimony concerning the 1996 Zoning Map tended to support the location of the zoning line at 150 feet, but the 1996 Zoning Map is not in the record on appeal.  The court found it was Respondent’s responsibility to present evidence that Petitioner’s commercial use of his storage building was in violation of Respondent’s zoning ordinance when the notice of violation was issued on 19 August 2009. Because the burden of proof was inappropriately placed on Petitioner to establish the location of the zoning line when he began his nonconforming use, the Court of Appeals held that the Superior Court’s order must be vacated.

The absence of the zoning map also impacted the Petitioner’s nonconforming use claim. The court found that in circumstances in which a town fails to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy is to place the burden back on the town to establish the location and classification of zoning districts when the landowner began his or her nonconforming use. Accordingly, the Superior Court’s order was vacated and this matter was remanded to the Superior Court with instructions to order further proceedings before the BOA.

Shearl v Town of Highlands, 762 S.E. 2d 877 (NC App. 9/2/2014)

The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=31645

Showtime Entertainment, LLC (“Showtime”), owner of a lot within the town’s adult-entertainment overlay district brought action against town and two members of town’s board, alleging, inter alia, that zoning bylaws relating to size, height, and operating hours of adult-entertainment establishments, as well as ban on sale and consumption of alcohol at such establishments, constituted impermissible prior restraint on freedom of expression. After the court determined that bylaws’ special-permitting requirement was an impermissible prior restraint and granted owner’s first motion for summary judgment, the parties moved and cross-moved for partial summary judgment on remaining counts of complaint. The United States District Court for the District of Massachusetts, entered summary judgment in favor of town, and Showtime appealed.

The court first addressed what level of scrutiny to apply and, recognizing that the zoning bylaws’ express terms set forth content-neutral purposes, proceeded in the application of intermediate scrutiny while withholding judgment as to the bylaws’ true content neutrality. The court then noted that while the First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content discrimination’ limitation upon a State’s prohibition of proscribable speech, it pays attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose. Here, the two purposes of the bylaws: (1) maintaining the rural aesthetics of Mendon as a small town; and (2) avoiding traffic congestion, particularly on days when school is in session were found to be patently underinclusive, and thus, insufficient to support Mendon’s claim that it has regulated adult-entertainment businesses only out of a substantial interest in curbing the secondary effects of such businesses.

Under intermediate scrutiny, Mendon was required to show that its interest in crime deterrence is substantial, and that its restriction on expressive activity is narrowly tailored to advance that interest without at the same time banning or significantly restricting a substantial quantity of speech that does not create the evils the city seeks to eliminate.  The First Circuit therefore reversed the grant of summary judgment in favor of Mendon as it related to the bylaws regarding the size, height, and operating hours of adult-entertainment businesses, and remanded this claim to the district court for entry of summary judgment in favor of Showtime.  The court certified to the SJC the questions of whether there was a countervailing State interest, and if so, whether the ban was adequately tailored.

Showtime Entertainment, LLC v Town of Mendon, 2014 WL 5028046 (1st Cir. Ct App. 10/8/2014)

The opinion can be accessed at: http://media.ca1.uscourts.gov/pdf.opinions/12-2121P-01A.pdf

This case arose from a constitutional challenge to Prince George’s County zoning ordinances restricting “adult entertainment” businesses.  A motion for a preliminary injunction was filed by Plaintiffs Maages Auditorium; CD15CL2001, Inc., d/b/a Bazz and Crue and X4B Lounge; D2; and John Doe and Jane Doe, for all those similarly situated, to with a motion to dismiss or, in the alternative, for summary judgment was filed by Defendant Prince George’s County. Plaintiffs asserted eight counts in their complaint. Count I claims that the stricter regulations of CB–46 and CB–56 burden only “adult entertainment” and therefore violate the Equal Protection Clause. Counts II and VII challenge the zoning regulations as violating the First Amendment, specifically that the regulations lack the required evidentiary support (Count II) and fail to provide adequate alternative avenues of communication (Count VII). Plaintiffs claim that the Special Exception process lacks adequate procedural safeguards (Count III); contains terms that are unconstitutionally vague (Count V); and allows for unbridled administrative discretion (Count VI). Count IV claims that the effect of CB–46 and CB–56 constitutes a taking of property for which Plaintiffs have not been provided due process nor just compensation. Finally, Count VIII alleges that the zoning regulations do not provide for an adequate amortization period as required by Maryland law.

As a preliminary matter, the Plaintiffs did not allege that John and Jane Doe were individuals who wished to keep their identities private, and did not make an over breadth challenge, so the court granted to dismiss them as parties. As to the issue of substantial government interest, since Plaintiffs had not provided any evidence to rebut the showing that CB–46 and CB–56 will combat the negative secondary effects of adult entertainment businesses, Defendant’s motion for partial summary judgment was granted.  Plaintiffs further claimed that the Special Exception acts as a license and that its criteria vests “unbridled administrative discretion” in the hands of County officials.  However, the court found that although the provision speaks of the normally amorphous concept of “public welfare,” its placement alongside the phrase “injurious to property or improvements in the neighborhood” militates against an expansive reading of the provision, confined as it is to concerns about land and infrastructure. Accordingly, the Defendant’s motion for Summary Judgment was granted as to those counts of Plaintiffs’ complaint that fall under the “prior restraint” heading, namely Counts II, III, V, and VI.  As to the takings claim, it was not certain yet whether a regulatory taking is an actual issue in this case given that most of the Special Exception applications are pending. While D2’s application has been denied, there was no evidence that it has availed itself of the state’s inverse condemnation procedures, and thus, this claim was dismiss as unripe.

Finally, while courts have held that “the number of sites available must merely be greater than or equal to the number of adult entertainment businesses in existence at the time the new zoning regime takes effect, the unique aspects of the six businesses currently located in zones other than I–2 led to the conclusion that they should be included in considering the adequacy of the available sites. This was especially true now that D2’s application has been denied, seemingly placing it amongst the eight other businesses requiring a new location. Consequently, there is a material dispute of fact on the issue of the adequacy of alternative avenues of communication and Defendant’s motion for summary judgment on Count VII will be denied. Furthermore, an amortization period is insufficient only if it puts a business in an impossible position due to a shortage of relocation sites. Because there was a genuine issue of material fact as to the adequacy of the alternative avenues of communication, the court could not yet rule on the amortization period.

Maages Auditorium v Prince George’s County, 4 F. Supp.3d 752 (D. MD 3/5/2014)

The Board of Adjustment of the city of Branson (“the Board”) and the city of Branson (“City”) appealed the judgment of the circuit court that: reversed the Board’s decision to deny a sign permit (“the permit”) sought by the co-trustees of the William and Janet Dailey Trust (“the Trustees”)); and ordered City to issue the permit. The permit allowed the Trustees to reconstruct a grandfathered billboard (“the Billboard”) that was struck by a tornado in February 2012. The Trustees submitted an application for the permit to City’s Planning and Development Department (“the Department”), which denied the permit on the ground that the Billboard had lost its status as a legal non-conforming sign. The Trustees contended that City and the Board erred by ignoring the plain language of Chapter 70 of the Branson Municipal Code [“Code”] in that they arbitrarily created their own personal, subjective standard to govern the repair of damaged nonconforming signs. The Trustees also argued that the denial of the permit was not based on competent and substantial evidence because the Trustees presented the only material and uncontroverted evidence that the Billboard could be repaired for less than 50% of the replacement cost pursuant to Section 70–17(a)(2) of the Code.

In support of the proposition that the Board adopted this misconstruction of Code section 70–17(a)(2), the Trustees pointed to the combination of the testimony of Mr. Lawson regarding the internal policy for signs that appeared to have damage to “50 percent or more … to the structure”, the denial language used by Mr. Crawford on the permit that “damage to billboard exceeded 50% of structure”, and the Board’s findings “that the Billboard in question was totally destroyed” and “substantial rebuilding” would be necessary to satisfy Code section 70–17. Simply because Mr. Crawford gave “damage to billboard exceeded 50% of structure” as the basis for the Department’s denial of the permit did not mean that the Board must have interpreted Code section 70–17(a)(2) as addressing the percentage of damage to the physical structure of the sign itself instead of the percentage of replacement cost involved to repair a sign. The court found that the Board did not find that the permit should be denied simply because over 50 percent of the Billboard had been destroyed, but because the requisite majority of the Board did not believe that the Trustees met the burden in showing that the Billboard in question met the standards of Section 70–17.

Dailey v Board of Adjustment of the City of Branson, 2014 WL 4964318 (MO App. 10/6/2014)

The opinion can be accessed at: http://www.courts.mo.gov/file.jsp?id=79073

The Office of Administrative Hearings of Baltimore County (“OAH”), ruled that appellees, BKL York I LLC, BKL York III LLC, Logwood LLC, Wawa Inc., and Monterey Improvement Association (collectively, “Developers”), were not required to obtain a County Council Resolution (“Resolution”) authorizing the amendment of their Planned Unit Development (“PUD”) plan. On September 13, 2013, the Circuit Court for Baltimore County issued a memorandum opinion and order affirming the decision of the Baltimore County Board of Appeals (“Board of Appeals”), which affirmed the decision of the OAH. Appellants, Lisa Tomlinson and Douglas Miller (collectively, “appellants”) appealed, asking the court to determine whether Developers were required to seek a Resolution by the County Council authorizing the material amendment of the commercial PUD plan.

PUDs, explained the court, are legislative creations in response to changing patterns of land development and the demonstrated shortcomings of orthodox zoning regulations, and were considered floating zones, created by a petition of a property owner desiring to develop his specific tract for any special zoning purpose. Under the plain language of the PUD title at the time of the Honda PUD’s approval, no approval was required for a development plan so long as it materially conformed to the concept plan that was originally approved. At the time that the Honda PUD was approved, the special exception of 1989 for the Shell Oil station was still in place. That special exception allowed for a service station and a food mart at 10111 York Road. Thus, the second amendment materially conformed with the original Honda PUD concept plan because the land underlying the Honda PUD included a special exception to its zoning for the same use contemplated by and approved in the second amendment.

The court found that even if the Developers needed to take some action for approval of the second amendment, they did more than enough to allow for public input on the second amendment. Developers and various Baltimore County agencies held a Development Plan conference on January 25, 2012, to discuss the proposed amendment, petitioned for a special hearing, then submitted the matter to the OAH for review. Furthermore, a two-day hearing was held where testimony was taken from a variety of witnesses including Developers, engineers, and residents from the community. The court held that an administrative hearing was all that was required for the first amendment, and therefore affirmed judgment of the circuit court for Baltimore County.

Tomlinson v BKL, LLC, 2014 WL 4999696 (MD 10/7/2014)

The opinion can be accessed at: http://www.mdcourts.gov/opinions/cosa/2014/1533s13.pdf

Ms. Kelch and Mr. Tkacz owned separate property that adjoined each other in Shepherdstown. Ms. Kelch constructed a temporary “reed” fence around the perimeter of her property, which was approximately six feet, six inches tall and composed of reeds that were tightly strung together.  Subsequently, Ms. Kelch filed an application for a building permit with the Planning Commission, seeking to make the fence a permanent fixture on her property. The Planning Commission denied the application, stating that the fence did not meet the material or height requirements of the Town of Shepherdstown’s Planning and Zoning Ordinance (hereinafter the “Ordinance”). Ms. Kelch then filed an appeal with the BZA, claiming that the fence was necessary to repel trespassers and to maintain her property insurance. The BZA granted the variance with regard to the fencing material but ordered Ms. Kelch to lower the fence to a height of six feet. The circuit court granted relief to Mr. Tkacz by vacating the decision of the BZA and awarding him attorney’s fees and costs, and the BZA appealed.

Ms. Kelch was not represented by counsel when she appeared before the Planning Commission or later when she filed her appeal with the BZA. She complied with the time frame provided by the Planning Commission. As a pro se litigant, it was reasonable for Ms. Kelch to rely upon the information supplied by the Planning Commission. Because Ms. Kelch filed within the 45 days the Planning Commission had given her, the Court of Appeals found that the circuit court erred in finding that Ms. Kelch’s appeal was untimely. Additionally, Section 9–1008 of the Ordinance, provided that “no such variance in the provisions or requirements of this ordinance shall be authorized by the [BZA] unless it finds, beyond reasonable doubt,” that certain facts and conditions exist.  However, in the “Conclusions of Law” section of the decision and order, the BZA stated that “the applicable standard of proof is clear and convincing evidence.” As part of its ruling, the circuit court concluded that the BZA applied the wrong standard of proof, which “constituted reversible error in and of itsel.f” Despite this, the Court of Appeals held that it was clear from a review of the record as a whole that Ms. Kelch met the Ordinance’s requirements for the granting of a variance under the controlling standard of proof. The court therefore reversed the circuit court, and ruled in favor of the variance.

Board of Zoning Appeals of the Town of Shepherdstown v Tkacz, 2014 WL 5032592 (W. VA. 9/30/2014)

The opinion can be accessed at: http://www.courtswv.gov/supreme-court/docs/fall2014/13-0688.pdf

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for my presentation of the Kerlin Lecture at Pace Law School, one of the things that struck me is that New York governors for at least the last thirty years have consistently identified the interconnected critical economic, social, and environmental challenges facing the state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment today to secure tomorrow? The fact remains that these are the three major legs of the sustainability stool and the measure of gubernatorial leadership is not in the lofty goals that were set forth, but rather in what was actually accomplished. My Kerlin Lecture focused on the broader theme of gubernatorial leadership and sustainability rather than perhaps the narrower reference to the environment, to reflect what in my opinion has enabled the global community to address core environmental challenges by forming alliances with other interest groups that might not have necessarily believed there was a logical affinity to strengthening environmental protections. To read more specifics about the environmental agendas of NY Governors Mario Cuomo, George Pataki, Eliot Spitzer, David Paterson and Andrew Cuomo, see the article based on the lecture here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2491129

East Georgia Land and Development Company, LLC sued Newton County and several of its officers for a writ of mandamus, contending that a zoning ordinance adopted by the County on May 21, 1985 was invalid.  The zoning ordinance at issue referred to—and purported to incorporate by reference—a set of maps identified in the ordinance as the “Official Zoning District Maps for Newton County.”  These maps were an integral part of the zoning ordinance. The ordinance identifies the lands to which its various zoning classifications apply only by reference to the maps, and without the maps, the zoning ordinance would be too indefinite and vague to satisfy the requirements of due process.  The only such maps that appeared in the record, however, were adopted by the County on July 2, 1985, and nothing in the record showed that those maps even were in existence on May 21, 1985, when the County enacted the zoning ordinance.  The trial court found that the zoning ordinance is invalid, and awarded summary judgment to East Georgia.  The County then appealed.

The court first discussed that for an ordinance to properly incorporate a map or other document by record, four criteria must be satisfied: (1) the document must be sufficiently identified so that there is no uncertainty as to what was adopted; (2) the document must be made a public record; (3) it must be accessible to members of the public who are, or may be, affected by it; and (4) the adopting resolution must give notice of this accessibility.  However, a map not yet in existence cannot have been “made a public record” and was not “accessible to members of the public who are, or may be, affected by it.”  The court therefore adhered to the general rule that void ordinances cannot be amended, and that an ordinance passed as an amendment to a previous ordinance, which never took effect, is invalid; a void ordinance cannot be vitalized by amendment, and reenactment is necessary to validate that intended to be enacted by it.  Accordingly the court affirmed the trial court’s holding that the ordinance was invalid.

Newton County v East Georgia Land and Development Company, 2014 WL 5313949 (GA 10/20/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/ga-supreme-court/1681153.html

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