Posted by: Patricia Salkin | August 12, 2014

MA Appeals Court Upholds Granting of Special Permit for Wind Turbine

The plaintiffs, GPH Cohasset, LLC, and GGNSC Cohasset, LLC (collectively, Golden Living), appealed from a judgment of the Land Court affirming a decision of the defendant planning board of Cohasset (board) to grant defendant Conservation Wind Partners, LP (Conservation Wind), a special permit to erect a wind turbine on property owned by defendant Trustees of Reservation (trustees). On appeal, Golden Living asserted, among other reasons, that: (1) the trustees and Conservation Wind did not satisfy their burden of proof to obtain approval of the special permit and site plan, (2) the wind turbine creates public safety concerns, (3) the judge erred by precluding Golden Living’s expert witnesses from testifying, and (4) the judge erred by declining to compel the production of the wind turbine’s operating manual.

As to the safety issue, the court noted that Golden Living put forth no evidence to show that the wind turbine was susceptible to blade throw or turbine collapse. The record indicates that the board did not act arbitrarily with regard to safety and that it adequately addressed Golden Living’s concerns by imposing extensive conditions for approval and ongoing operation. Secondly, Golden Living did not identify any experts in their interrogatory answers, representing instead that they would supplement their answers. Discovery closed on January 13, 2012; as of that date, Golden Living had failed to supplement the interrogatory answers. So when Golden Living attempted to submit the testimony of two experts after this date, the court found that the judge did not abuse his discretion in excluding Golden Living’s experts. Finally, Golden Living asserted that the board’s decision cannot stand because it failed to make sufficient factual findings that demonstrate the project complies with the zoning by-law. Section 12.4(1)(b) of the Cohasset zoning by-law requires that the board make “written findings certifying compliance” with the by-law before granting a special permit. However, since the judge found that “instead of making specific findings, the Board conditioned its approval on the Trustees complying with numerous conditions to ensure compliance with the Bylaw”, the court found the board made sufficient findings to support its approval.

GPH Cohasset, LLC v Trustees of Reservations, 85 Mass. App. Ct. 555 (MA. App. 6/25/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/ma-court-of-appeals/1671022.html

Editor’s Note: This posting is republished from the RLUIPA Defense Blog, with permission. The blog is located at: http://www.rluipa-defense.com/home.cfm

In American Atheists v. Port Authority of New York and New Jersey, No. 13-1668 (2d Cir. July 28, 2014), the U.S. Court of Appeals for the Second Circuit held that the National September 11 Museum’s (Museum) display of a 17-foot high column and cross-beam retrieved from World Trade Center debris that gave many the impression of a Latin cross (a symbol associated with Christianity) did not violate the U.S. Constitution’s Establishment and Equal Protection Clauses. The column and cross-beam, known as “the Cross at Ground Zero,” is a part of the Museum’s exhibition called “Finding Meaning at Ground Zero” (to view the Cross at Ground Zero, click here). The exhibit includes the following textual panel:

Workers at Ground Zero struggled to come to terms with the horrific circumstances in which they found themselves. Some sought to counter the sense of utter destruction by holding on to something recognizable, whether a metal bolt or shard of glass or a marble salvaged from the debris. Others, grappling with the absence of survivors and the regular recovery of human remains, found purpose by forging relationships with relatives of a particular victim, carrying a photograph or memorial card to bolster their resolve.

Some questioned how such a crime could have been perpetrated in the name of religion, and wrestled with how a benevolent god would permit the slaughter of thousands of innocent people. Many sought comfort in spiritual counseling, religious symbols, and the solace of ceremonies and ritual.

Some workers turned to symbols of patriotism to reinforce a sense of commitment and community, hanging flags across the site. American flags reinforced a sense of commitment and community, and the repeated promise of “God Bless America” inspired a sense of duty. The words “Never Forget” commanded a pledge of unswerving dedication.

Three years before the Museum opened, the American Atheists, Inc. and certain of their members (Atheists) sued, contending that any display of the Cross at Ground Zero would violate the U.S. Constitution, but the United States District Court for the Southern District of New York found against them. On Appeal, the Atheists conceded that the Cross at Ground Zero is an historic artifact worthy of display in the Museum, and limited their challenge to the manner in which the Museum would display the cross. In particular, they asserted that the display of the cross would impermissibly promote Christianity in violation of the Establishment Clause and would also deny the Atheists equal protection of the laws, because the Museum does not display items acknowledging atheists, even though atheists were among the victims and rescuers on September 11. Although the Atheists acknowledge that there is no historic artifact that speaks to the atheists who lost their lives or atheists’ rescue efforts, they alleged the District Court erred in ruling against them because they were willing to finance an “atheists’ recognition plaque” for display in the Museum with the Cross at Ground Zero.

In evaluating the Atheists’ Establishment Clause claim, the Second Circuit applied the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which “instructs that for challenged government action to satisfy the neutrality principal of the Establishment Clause, it must (1) ‘have a secular . . . purpose,’ (2) have a ‘principal or primary effect . . . that neither advances nor inhibits religion,’ and (3) ‘not foster an excessive government entanglement with religion.’”

The Second Circuit found that the display of the Cross at Ground Zero does not violate the Establishment Clause because the stated purpose of displaying it – to tell the story of how some people used faith to cope with September 11 – is genuine, and an objective observer would believe the purpose of the display to be secular. In addition, “an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled ‘Finding Meaning at Ground Zero;’ the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context.” Finally, “there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.”

The Second Circuit also rejected the Atheists’ Equal Protection Clause challenge: “In the absence of any evidence of discriminatory animus toward the atheists, the Museum did not deny equal protection by displaying the Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.”

The opinion can be accessed at: http://www.rluipa-defense.com/docs/9.11_Decision.pdf

Editor’s note: This post is republished with permission from the RLUIPA Defense blog which can be viewed here: http://www.rluipa-defense.com/home.cfm

The United States District Court for the Middle District of Florida has denied the City of Jacksonville’s motion to dismiss Church of Our Savior’s (formerly known as Resurrection Anglican Church) RLUIPA suit, and has scheduled the case for trial. The Church was founded in 2006 and has about 110 members and weekly parishioners. Its religious mission is “to revel in and share the grace that God has shown them,” and seeks to encourage members in the community to attend its religious services. Aside from religious services, the Church provides bible study classes, serves the homeless, and assists nearby schools.

Currently, the Church rents space from the City of Jacksonville Beach Historical Society on a six-month rolling basis. Under its lease the Church can only hold services for four hours per week, and it wants to have more time for worship. It also is not permitted to make repairs or alter the chapel of the space it leases to accommodate its religious needs. The Church leases additional space from a separate owner for its administrative offices, and is relegated to holding its men’s bible study sessions in the back of “Colonel Mustard’s” – a popular hamburger restaurant. These limitations, the Church alleges, prevent it from attracting new members to its congregation, in contravention of its religious beliefs.

To alleviate these burdens, the Church began searching for a single location from which it could practice its religion. In 2012, the Church found property in the City’s “Residential, single family (RS-1)” zoning district, and acquired an option to purchase the property (Property). In this zone, “public and private parks, playgrounds, and recreational facilities” are allowed as-of-right, but churches must obtain a conditional use permit (CUP) to locate there. The Church alleges that the Property “is the only available property to ideally fit its needs . . . .”

In March 2013, the Church submitted a CUP application to construct a one-story, 7,440 square foot building containing a sanctuary and additional space that could hold more than 200 people, and with a children’s play area for the congregation. The staff of the City’s Planning and Development Department prepared a report recommending approval of the application, because the proposal “represents a reasonable low intensity use of the undeveloped parcels surrounding the City’s lift station, and would serve as transition between the soon to be developed commercial parking facilities to the east, and the Hopson Road neighborhood to the west and south.” Five residents from the neighborhood opposed the application, and the Planning Commission denied the application.

The Church submitted another CUP application in August 2013, this time characterizing the proposed children’s play area as a public park. The Planning and Development Department staff again recommended approval for the same reasons as before. Neighborhood residents spoke in opposition and the Planning Commission denied the CUP on the grounds that “(1) the proposal ‘is not consistent with the character of the immediate vicinity;’ (2) the proposal is ‘inconsistent’ with the City’s Comprehensive Plan, which requires future institutional uses, like churches, to be located outside of low-density residential areas; and (3) changing the designation of the children’s play area to a public park means the proposed building would exceed the maximum of 35% lot coverage for property zones RS-1.”

The Church brought a five-count RLUIPA suit against the City. It alleges that the City’s CUP denial substantially burdens its religious exercise because “The Church wishes to build a facility on what it claims is the only available property to ideally fit its needs, and the City’s denial of its application for a CUP means the Church cannot do so.” Instead, the Church “is left with its rolling, six-month lease on the Beaches Museum Chapel, a less than ideal location, with no guarantee the lease will continue to be renewed.” The Church also claims that the City’s zoning ordinance violated RLUIPA’s equal-terms provision on its face by treating religious uses worse than secular assembly uses. In support of this argument, the Church points to “public and private parks, playgrounds, and recreational facilities” uses that are allowed as-of-right in the subject zoning district, while religious institutions must obtain a CUP through discretionary review to locate there. It also alleges that City violated RLUIPA’s equal-terms and nondiscrimination provisions as-applied by treating it worse than other secular and religious uses that obtained zoning approval to locate in the zone. Finally, the Church argues that the City has violated RLUIPA’s unreasonable limitations provision by adopting policies that make it difficult for religious institutions to locate anywhere in the City.

On July 18, 2014, the District Court denied the City’s motion to dismiss the Church’s claims, concluding that the claims were properly pled to proceed to trial. The District Court has agreed to expedite the case for trial – scheduled to occur on September 2, 2014.

Daniel P. Dalton, an experienced RLUIPA litigator who represents the Church, offered the following comment:

“The law ensures that a city’s zoning restrictions don’t single out ministries for discrimination and penalize them because of their religious viewpoint. The city should do the right thing and grant Church of Our Savior a permit to build its church so it can fulfill its mission and continue to serve its community.”

Attorney Dalton is described by Bram Alden in his article “Reconsidering RLUIPA: Do Religious Land Use Protections Really Benefit Religious Land Users?” as “a leading RLUIPA proponent who has represented religious plaintiffs in a number of prominent RLUIPA cases,” including the Academy of Our Lady of Peace in its lawsuit against the City of San Diego (read more here).

The District Court’s decision denying the City’s motion to dismiss in Church of Our Savior v City of Jacksonville Beach, 2014 WL 35897494 (MD FLA 7/18/2014)

The Chandlers had purchased property located at 24 Windmill Lane in Chatham, Massachusetts containing a single-family home. The structure was built in approximately 1929 and is located within a residential R–40 district and in a coastal conservancy district. The structure is 19.2 feet high above grade, and contains 2,161 square feet of living space. The Chandlers’ property is nonconforming as to lot size and building coverage, and contains additional dimensional nonconformities with respect to its frontage, front yard setback, and side yard setback. On December 31, 2007, John V.C. Saylor, Georgia A. Saylor, Peter Hallock, Edwin J. Deadrick, and Mary Anne Hall Deadrick filed their complaint appealing from the board’s decision to grant a special permit to the Chandlers. The defendants, Robert Jeffrey Chandler and Jayne Kerry Chandler (collectively the Chandlers), appeal from the entry of summary judgment by a judge of the Land Court that reversed a decision of the zoning board of appeals of Chatham (board). The board had granted the Chandlers a special permit allowing them to reconstruct a pre-existing nonconforming structure on their nonconforming lot. However, the judge reasoned that, since the new structure created an additional nonconformity as to its height, the project required a variance rather than a special permit.

Under G.L. c. 40A, § 6, pre-existing nonconforming structures or uses may be extended or altered, provided, that “no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood”. However, the court construed the provisions of the first and second sentences of § 6 together to allow extension of existing nonconformities upon a showing of no substantial detriment, but to require a variance for the creation of any new nonconformity.

Thus, the matter was remanded to the Chatham zoning board of appeals to determine whether the Chandlers’ proposed new structure is eligible for the exemption provided under § IV.A.3 of the Chatham by-law from otherwise applicable height limitations.

Deadrick v Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 (MA App. 6/25/2014)

Developer sought judicial review of decision of town’s Board of Adjustment denying developer’s application for special use permit to build medical clinic on parcel zoned for single-family residential use. On remand, the Board again denied Templeton’s application for a special use permit. The Board made twenty-one findings of fact relating to the proposed clinic’s lack of harmony within the order. On 6 November 2012, Templeton appealed the denial of its application to the Watauga County Superior Court, which entered an order reversing the Board’s denial of Templeton’s application.

The superior court found the Board’s findings on lack of harmony generally and impermissibly cite impacts that are inherent in the nature of the proposed use. The court discussed that, as matter of law, a board of adjustment cannot deny an application for lack of harmony on the basis that a use deemed conditionally permissible by the local legislative body would produce impacts common to all such uses. The court held that to allow such a decision would empower the board to substitute its judgment for that of the elected governing body. The court further found that all of the Board’s findings in this case were of that nature, and as a matter of law do not support the Board’s conclusion that the proposed use would not be in harmony with the area in which it is to be located.

The appeals court found that court below improperly acted as a finder of fact on review and imposed its own view of what the bounded “area” should be, rather than reviewing whether the Board’s findings of fact concerning the area were supported by competent evidence and not arbitrary and capricious. The superior court held that the fact-specific definition of “area” as used by the Board should have included “similarly situated” properties that are “in reasonable proximity to the subject site.” “In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the town board.” Coastal Ready–Mix Concrete Co., Inc., 299 N.C. at 626, 265 S.E.2d at 383. Thus, the Court of Appeals held that if findings of fact about the “area” affected here were supported by evidence, they must stand even if conflicting evidence may have allowed the superior court to reach a different result under de novo review. By improperly acting as a trier of fact, the superior court erred and was therefore reversed.

Templeton Properties, LP v Town of Boone, 759 S.E. 2d 311 (NC App. 6/3/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/nc-court-of-appeals/1668745.html

Airport neighbor, George Maille, appealled the Superior Court, Environmental Division’s grant of summary judgment in favor of appellees City of Burlington and City of South Burlington. The court upheld the South Burlington Zoning Administrative Officer’s issuance of fifty-four zoning permits to the City of Burlington and Burlington International Airport (BTV) (together, applicants) and concluded that applicants were not required to submit a site plan for zoning board approval. Each permit allows BTV to demolish, remove, and fill in the cellar hole of a vacant structure on BTV-owned property. The South Burlington Development Review Board (DRB) held that removing the structures did not constitute a change in the use of the lots, and that the LDR did not require site plan review of a proposed vacant lot. Maille contended that the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington Land Development Regulations (LDR).

The DRB noted in its decision that “[e]ach of the applications for a zoning permit states that the residential use of the structure on the lot has ceased and that the proposal is to remove the vacant one-or two-family structure.” Because the enabling statute grants municipalities the discretion to require site plan approval, the DRB excluded one-and two-family dwellings from site plan review. That statute reads in pertinent part: “[a]s a prerequisite to the approval of any use other than one-and two-family dwellings, the approval of site plans by the appropriate municipal panel may be required.”24 V.S.A. § 4416. The DRB interpreted the language “one-and two-family dwellings” to mean the construction of one-and two-family dwellings. The DRB further reasoned, and the environmental court agreed, that the act of construction includes the act of removal, and concluded that “the [LDR] do not require site plan review of the removal of a structure, the construction and use of which was exempt from site plan review.” The DRB found “no other authority in § 14.03(A) of the [LDR] for the Administrative Officer to refer the applications for zoning permits to the [DRB] for site plan review and approval.”

Because BTV’s application proposed no change in use and thus has not proposed conversion to a non-residential use or airport use, the court concluded that site plan review was not required under the LDR. However, the court noted when or if BTV wishes to use the properties for anything other than their current non-use, they will have to submit applications to the DRB that will likely trigger site plan review. Additionally, BTV’s proposal to place fill into the cellar holes of those structures—an activity that is incidental to the removal of the structures—is exempt from site plan review under the LDR. Although there may be legitimate concern over noise increase without the buffer provided by the former structures, the court held it cannot require site plan review when the LDR do not require it. Accordingly, the court affirmed the dismissal of the plaintiff’s claims.

In re Burlington Airport Permit, 2014 WL 3700343 (VT 7/25/2014)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2013-158.html

From the AG’s Website:

In July 2013, New York State Attorney General Schneiderman launched his Land Banks Community Revitalization Initiative, which is dedicating a portion of the funds awarded to New York under the National Mortgage Settlement to support legally designated Land Banks, formed under the New York State Land Bank Act of 2011. In the first round of grant awards, which was announced on October 29, 2013, the Attorney General awarded $13 million to eight land banks statewide, including:

The Buffalo Erie Niagara Land Bank Corporation, which was awarded $2.087 million;
The Rochester Land Bank Corporation, which was awarded $2.78 million;
The Greater Syracuse Property Development Corporation, which was awarded $3 million;
The Chautauqua County Land Bank Corporation, which was awarded $1.5 million;
The Newburgh Community Land Bank, which was awarded $2.45 million;
The Suffolk County Land Bank Corporation, which was awarded $675,000;
The Capital Region Land Bank, which was awarded $150,000; and
The Broome County Land Bank, which was awarded $150,000.

In his second round of funding, the Attorney General’s Initiative will be making up to $20 million available to land banks statewide. Applications for this second round of funding are available now.

The projects selected for funding will carry out a range of vital community development activities, including demolition of blighted, vacant, and abandoned homes; acquisition and renovation of vacant homes, including remediation of environmental hazards; resale of renovated properties as affordable housing for low- and moderate-income families; acquisition of vacant land that will be transferred to existing community residents who will maintain and repurpose the underutilized open space; and environmental pre-development studies and analyses that will eventually lead to remediation and redevelopment of brownfield sites. Proceeds from the resale of renovated properties will go back to the land banks and allow them to continue their work.

As stated in the law, “there is an overriding public need to confront the problems caused by vacant, abandoned and tax-delinquent properties” that resulted in large measure from the foreclosure crisis. Communities can use Land Banks as a tool to “facilitate the return of vacant, abandoned and tax-delinquent properties to productive use… for the benefit of the public and the State as a whole.” The Attorney General Office’s Community Revitalization Initiative Request for Applications will encourage the utilization of funds for “foreclosure relief and housing programs” and “community blight remediation,” as intended under the terms of the National Mortgage Settlement.

In total, the Community Revitalization Initiative will provide Land Banks in New York State with $33 million from the Attorney General’s Office to promote community revitalization efforts. Additionally, land banks have used Attorney General Schneiderman’s funding to leverage additional resources from both private and public sources in order to expand their community revitalization efforts. A conservative estimate suggests that the land banks will be able to access a combined total of more than $21 million in other public and private funding over the next two years.

All applications for first-round funding must be submitted electronically to the Attorney General’s Office by 4 PM on September 19, 2014.

A mandatory conference call hosted by the Attorney General’s Office will be held for all applicants on August 20, 2014.

The call-in number and call details will be posted on this web page no later than August 10, 2014.

Written questions may be submitted in advance of the call. All questions regarding this RFA should be submitted by email to Dina Levy at Dina.Levy@ag.ny.gov. Please include “Land Bank RFA” in the subject line when submitting questions.

http://www.ag.ny.gov/feature/land-bank-community-revitalization

Defendant 175 Paramus Road Real Estate, L.L.C., filed an application for variances and site plan approval with defendant Board of Adjustment of Paramus. The application was for a three-story Alzheimer’s facility for a maximum of 126 residents. The application stated that the building site near the frontage of the property on Paramus Road would be graded and raised above the 100–year floodplain. Because the proposed facility would contain more than fifteen beds, the applicant requested a(d)(3) variance, for deviation from the conditions applicable to a permitted conditional use. On November 29, 2012, the board adopted a twenty-one page resolution implementing and explaining its decision. The resolution reviewed in detail the testimony and evidence presented at the hearing, and it acknowledged the questions and concerns raised by plaintiff Krousos and one other person. The board concluded that the application met the requirements for use, deviation, and height variances under N.J.S.A. 40:55D–70(d)(1), (3), and (6), and for bulk and dimensional variances under N.J.S.A. 40:55D–70(c)(1) and (2). The board approved the variances, design waivers, and site plan, setting forth specific conditions of the approval.

Plaintiffs filed an action in lieu of prerogative writs in the Law Division pursuant to Rule 4:69 to set aside the board’s decision. Their complaint alleged that the proofs were insufficient for the granting of the variances and that the board had exceeded its statutory authority by, rezoning the property to permit the development of a prohibited use. The Law Division affirmed the board’s decision and entered an order on July 12, 2013, dismissing plaintiffs’ complaint with prejudice.

On appeal, plaintiffs argued that the resolution of approval adopted by the board was insufficient and could not sustain the variances that were granted, and that the applicant failed to comply with N.J.S.A. 40:55D–10(b) in that all maps and documents in support of the application were not on file with the board and available for examination by the public at least ten days before the board’s vote of approval on September 20, 2012.

In this case, the property was so spacious compared to the required zoning regulations that it far exceeded the dimensional minimums of the zoning regulations. The court also noted that the public benefit was the much-needed assisted living facility, and the Plaintiff’s failed to show any diminishment in property value. This court therefore found that the board acted within its discretionary authority in concluding that the applicant’s property can accommodate a large assisted living home for persons afflicted with Alzheimer’s disease and the employees and guests who will attend to their needs at the facility.

Krousos v Zoning Board of Adjustment of Borough of Paramus, 2014 WL 3628862 (NJ Sup. Ct. unpub. 6/17/2014)

The Hales were owners of a house on agricultural land about one mile southeast of a shooting range in Ward County, which is used to train local, state, and federal law enforcement officers. Robert and Susan Hale appealed from a summary judgment dismissing their public nuisance claim against Ward County and the City of Minot. The court concluded that the Hales, as private persons, are not entitled to maintain a claim for a public nuisance under N.D.C.C. § 42–01–08, because they did not show the alleged public nuisance is specially injurious to them. The court also denied the Hales’ request to join additional neighbors as parties to their action.

As for the first claim, the Hales alleged that the law enforcement shooting range was a private and a public nuisance and that the shooting range devalued their property, resulting in a governmental taking. The Hales claimed the law enforcement shooting range posed a danger to their property, to Gowan’s property, to other neighbors’ property, and to the general public using County Road 12. Ward County and Minot County responded by claiming that the law enforcement shooting range was a sports range under N.D.C.C. § 42–01–01.1 and that the shooting range was not a public or a private nuisance, and the court agreed.

The court followed the well-established construction of language similar to N.D.C.C. § 42–01–08 and construed the “specially injurious” language of that statute to authorize a private person to maintain a public nuisance claim if the private person suffers harm of a kind different from that suffered by other members of the public and the injury was suffered while exercising a right common to the general public. The court held that evidence of bullet holes in signs near the shooting range and County Road 12 raised factual issues about whether the shooting range posed an unlawful danger and was a public nuisance. Robert Hale’s use of County Road 12 once or twice a month to visit friends does not demonstrate the range was specially injurious to him in a manner different from other members of the public under N.D.C.C. § 42–01–08 so as to entitle him, as a private person, to maintain an action for a public nuisance. The court held that this statute requires a private person bringing a public nuisance action to show a special injury to that person of harm different in kind from that suffered by other members of the public. Accordingly, the court affirmed the summary judgment dismissing his public nuisance claim.

As to the denial of joinder issue, the court concluded that the decision was not arbitrary, unconscionable, or unreasonable, was not a misapplication of the law, and was the product of a rational mental process leading to a reasoned determination. Thus, the court did not abuse its discretion in denying the Hales’ request to allow joinder of their neighbors as parties to this action.

Hale v Ward County, 848 N.W. 2d 245 (ND 6/24/2014)

The opinion can be accessed at: http://www.ndcourts.gov/court/opinions/20110171.htm

The Applicant in this case filed for a conditional use permit to build general merchandise store on the corner of the intersection located on Route 7 and Monkton Road in Ferrisburg, and local citizens (Opponents) appealed the permit granted to the Applicant. The trial court however found that the Applicant’s proposed project complied with all of the general and specific conditional use standards of the ordinance and the statute promulgated by the legislature. The trial court further added that the Appellant should install and maintain a crosswalk across its parking lot, but declined the Opponent’s suggestion to increase the landscape, relocation of the parking lot and the entrance to the building as the court found that such changes would cause potential safety issue and would provide little benefits. Opponents then appealed to the Supreme Court of Vermont.

On appeal, the Court found that it was not improper to shift the burden of proof to show an adverse impact, as the Applicant met its burden in showing that the proposal met the conditional use criteria and the Opponents were unsuccessful in rebutting the Applicant’s proposal. The court went on to find that the Opponents failed to provide evidence of harm from the commercial development, and that the trial court did not err in requiring the Opponent to show an adverse impact to the community. In regards to the Opponents’ argument against the legal standard applied by the trial court, the supreme court found that the trial court did not err in using the definition of undue adverse impact from the Quechee test, as the trial court merely used the definition of undue adverse impact from the case to form an interpretation of the adverse effect language in the Bylaws. As to the Opponents final argument as to whether the store was prohibited in the district due to the true usage of the store, the Curt found that the Applicant testified that the store would be a general merchandise store, the store’s proposed use as a discount retailer fell within the retail sales definition provided in the ordinance, and the definition provided in the ordinance was intended to be inclusive rather than restrictive.

In re Group Five Investment CU Permit, 93 A.3d 111 (VT 2/14/2014)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2013-009.html

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