Lost Tree Village Corporation, the plaintiff, filed an application to fill wetlands for a plot of land approximately five acres in size. The U.S. Army Corps of Engineers denied the application, and Lost Tree claimed “that the denial of that permit eliminated all economically viable use of the plot and constituted a taking in contravention of the Takings Clause of the Fifth Amendment to the United States Constitution.” The court of appeals remanded the case to determine the loss of economic value in the plot as a result of the denial, and also to establish what standard to apply in order to determine if a compensable taking had occurred. It was undisputed that the plot had a nominal value, which was not reflective of any economic use, but with the permit to fill the wetlands the plot was “worth a substantial amount.”

On appeal, the court discussed the potential economic loss under both the Lucas and Penn Central factors to determine which to apply. Under the Lucas factors, the court stated that “the inquiry [was] whether [the plot] retain[ed] any economically beneficial use without [the permit].” In order to do the analysis, the court took an average of the parties’ estimated value of the plot without the permit and with the permit, which were $27,500 and $4,760,000, respectively. Because of the drastic difference in value, the court found that there was a diminution of value of approximately 99.4%, and that under Lucas “[s]uch a diminution of value constitute[d] a categorical taking . . . .”

The ocurt also found that there was a taking under the Penn Central factors. First, the court found that while the government had a legitimate objective to preserve waterways pursuant to the Clean Water Act, that it singled the plaintiff out for adverse treatment, and that actual wetlands involved were marginal, which weighed in favor of the plaintiff. Second, the court found the reasonable investment-backed expectations factor did not weigh in either party’s favor because of the circumstances surrounding the permit. Third, the court found that there was a clear economic impact because of the 99.4% diminution in value, which weighed heavily in the plaintiff’s favor. Thus, the court found that there was also a compensable taking under the Penn Central factors.

The court then addressed whether the government also owed the plaintiff’s interest on the award, and stated that if disbursement of an award is delayed then the property owner is entitled to interest. The interest should be calculated such that it was approximately what the reasonably prudent person would have received if that person had invested his or her funds to produce a reasonable return. The court found that the “ten-year Treasury STRIPS rate [was] appropriate,” which was based on the amount of time between the taking and the judgment.

The court held that the government’s denial of the permit to fill the wetlands constituted a taking of the plaintiff’s property, and awarded the plaintiff $4,217,887.93 based on its fair market value with the permit, and minus the value without the permit. The court also awarded the plaintiff interest at the ten-year Treasury stripes rate.

Lost Tree Village Corp. v. United States, 2014 WL 1004100 (Fed. Cl. Mar. 14, 2014)

The opinion can be accessed at: http://www.scribd.com/doc/214437120/Lost-Tree-Village-Corp-v-United-States-No-08-117L-Fed-Cl-Mar-14-2014

This case arose from an event hosted by Cavalia USA, Inc., which held its outdoor entertainment traveling horse show on the Noble parking lot. The parties stipulated that during the Cavalia show, “no portion of the subject properties was utilized as a surface park-for-hire lot.” On February 9, 2012, one month following the end of the Cavalia show, the City, through its Office of Buildings, notified Noble that its park-for-hire surface parking lot had been superseded by a permitted use pursuant to the Code of Ordinances of the City of Atlanta (“City Code”) §§ 16–24.005(4), 16–18P.007 (1)(d), and 16–18P.007 (2)(b). Noble responded by informing the City that its decision was “without a legal basis” and that Noble intended to resume its park-for-hire business in March 2012.

The City conceded that it did not issue Cavalia either a special use permit or a special administrative permit pursuant to City Code § 16–18P.007, however that Code section provides in plain, unambiguous language that “outdoor amusement enterprises” such as the Cavalia show are “permissible only by additional special permits”, which shall be processed by the Bureau of Planning.4 See City Code § 16–25.001. Because Cavalia’s use was a use that is only “permitted” or allowed by a special administrative permit pursuant to City Code § 16–18P.007 (2)(b),5 and no such permit was issued, Cavalia’s use could not act to supersede Noble’s nonconforming use pursuant to City Code § 16–24–005.

The court held that statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law; therefore, they must be strictly construed and never extended beyond their plain and explicit terms.” Beugnot v. Coweta County Board of Zoning Appeals, 231 Ga.App. 715, 722 (1998). Because of this the court found that a vested right in a legal nonconforming use can be superseded by a use that takes place outside of the express terms required for that use.

Noble Parking v Centergy One Associates, 2014 WL 1097955 (Ga App. 3/21/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/ga-court-of-appeals/1661147.html

Following notification by the Town code enforcement officer to Salton that he was operating an unauthorized home occupation as he was keeping exotic animals (including 3 tigers and 2 leopards) on his property under government licenses that required the exhibition of the large cats and allegedly collecting viewing fees from the public, he appealed to the ZBA who upheld the determination of the code enforcement officer. The trial court dismissed the petition to appeal and Salton appealed again.

The appellate court began with the Town’s zoning law, which provides in relevant part, “[h]ome occupations are defined as businesses where the owner resides on the property and where the activities of the business are conducted inside the residence, a legally constructed accessory building, or at off-site locations.” At issue was whether Salton was operating a home occupation and if so, whether his actions were grandfathered in by predating the applicable zoning ordinance.

The Court found that Salton was operating a business based on the following: he lives on the same property that contains the cat cages; despite the fact that he has no employees, does not file business taxes, has no business insurance and makes no profit as he claims to not charge people to view the animals, he did list a business name on one of his licenses, and he has a business card listing him as the owner and he lists prices for adults and children to see the animals.

Further, the court found that the cages were a legally constructed accessory building since the language in the applicable zoning ordinance says that the word “building” also includes a “structure,” and the court said, “a cage that is built into the ground – like the cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner’s residence.” Further, the Court said that the code enforcement office did not assert that the cages were not legally constructed. Therefore, since Salton was “carrying on business activities in a legally construed accessory structure, he is operating a home occupation.”
Finally, Salton was not carrying on a legal use prior to the enactment of the zoning ordinance as was demonstrated by the dates his licenses to legally operate were issued.

Salton v Town of Mayfield Zoning Board of Appeals, 2-13 WL 1316363 (NYAD 3 Dept. 4/3/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2014/516523.pdf

Petitioners own an armory situated in a commercial office district, where the use of the property for an auditorium is permitted. Following certain events at the venue, the City’s Division of Buildings and Regulatory Compliance issued multiple cease and desist orders. As a result, the petitioner and the City entered into a memorandum of understanding whereby the petitioner would submit an application to the zoning board for further clarification as to what events/uses constitute permitted uses of the property.

Following the application, the zoning board issued a determination finding that the “use of the facility for a ‘Rave’ party, nightclub, dance club or other similar uses is excluded from the definition of an ‘[a]uditori[um]’ and thus is an illegal use.” Petitioner appealed and the trial court dismissed.

The appellate court reversed, noting that in its application, the petitioner proposed to use the venue for “musical entertainment” events including those where attendees are standing for the entire event. The Court found that the zoning board’s determination that such use was not permitted was based solely on their interpretation of the word “auditorium” which is not defined in the zoning ordinance. While the zoning board did look to the plain meaning and dictionary definition of the word, the Court noted that the zoning board picked one definition they liked, but ignored alternative definitions which do not require an audience to be seated. Any ambiguity in the zoning ordinance must be resolved in favor of the petitioner, and therefore the Court annulled the board’s interpretation.

Albany Basketball & Sports Corporation v City of Albany, 2014 WL 1316331 (NYAD 3 Dept. 4/3/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2014/517313.pdf

The Planning Board issued a special use permit to petitioner on July 11, 2011, allowing it to construct a wind farm. Respondent notified petitioner that its permit would “expire if construction has not commenced within a year of [respondent's] approval.” On June 11, 2012, respondent extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens’ group, Concerned Citizens of Cattaraugus County (CCCC), which opposed the project. By letter dated August 3, 2012, petitioner advised the Town that it was “considering use of alternate turbine models” for the project. Petitioner thereafter requested a second extension of the special use permit, but the Planning Board denied that request during its October 15, 2012 meeting.

The court held that there was a material change in circumstances since the special use permit had been issued. When the special use permit was granted, petitioner contemplated the use of Nordex N1000 turbines. It is undisputed that, by the time petitioner requested its second extension of the permit, petitioner proposed using alternate turbine models. Therefore, the court found that the Planning Board’s refusal to extend the special use permit for a second time was not arbitrary or capricious.

Allegany Wind LLC v Planning Board of Allegany, 2014 WL 1099718 (NYAD 4 Dep. 3/21/2014)

The opinion can be accessed at: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/03-21-14/PDF/1324.pdf

FT Holdings L.P. developed a condominium complex located at East Thompson and Columbia Avenue in the City of Philadelphia. On March 9, 2012, FT submitted an application for Zoning/Use Registration Permit on properties it owned. FT sought to relocate lot lines to consolidate and merge two lots (413 Moyer and 415 Moyer) into 1247 E. Columbia Avenue as part of a previously approved residential development, demolition of the all existing structures on 413 and 415 Moyer Street, erection of one four story residential structure containing nine residential dwelling units with accessory decks, green roofs, and bicycle storage, for a total of thirty-five residential units and one commercial unit with accessory parking for thirty-two vehicles, as previously approved. However, the City of Philadelphia, Department of Licenses and Inspections (L & I) denied the application pursuant to the Philadelphia Zoning Code (Code). FT appealed to the ZBA. During the appeal, an attorney for a third party neighbor, John Scott, appeared on his behalf at the hearing, and argued that proper notice was not given, and that FT had failed to demonstrate an undue hardship that would entitle it to a variance and that the variances sought would affect the character of the neighborhood, reduce light and air, and increase parking and traffic problems. After the board granted the requested, Scott appealed to the common pleas court where FT moved to quash on the basis that he lacked standing because he failed to establish that he was aggrieved by the board’s decision. FT noted that Scott’s allegations were purely limited to legal arguments, and failed to establish any specific negative impact on Scott.

Scott argued that he is aggrieved because: he has to drive by the project; he lives on the same block as the project; he doesn’t want to look at the project; the project is not within the character of the neighborhood, which he doesn’t want to turn into Brooklyn; and that Appellee [F.T.] did not show any hardship. FT did not object at the hearing to Scott’s comments.

The court found that Scott failed to establish any discernible effect that granting the variance would have on any claimed interests, and also failed to demonstrate a causal connection between granting the variance and the injury to any claimed interest. Accordingly, the court held that the appellant was not an aggrieved person and could not be held to have standing to appeal the ZBA’s [Board] decision.

Scott v City of Philadelphia Zoning Board of Adjustment, 2014 WL 1133286 (PA Commnwlth 3/21/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1661096.html

Plaintiffs’ store occupied a portion of the first floor of a building erected before 1940, when the Town first implemented a zoning code. Under a grandfather clause in the zoning code any structure and use that lawfully existed before 1940 can continue to remain, exist, and be used, regardless of compliance with the current code. Plaintiff Ahmed bought an electric griddle, a sandwich press device and hotdog roller, and several tables and chairs, but never opened their packaging and left the tables and chairs stacked and unused. Nevertheless, defendants entered and advised plaintiffs that they could not prepare food at the premises for sale and consumption, because that would alter the store from a grandfathered retail store into a restaurant, violating the current zoning code. Plaintiffs immediately removed the items from the premises. Defendant issued a “Notice of Violation” and Summons, which stated that an inspection revealed an unsafe condition and construction without a permit.

Defendants moved to dismiss the procedural due process claim because plaintiffs availed themselves of an adequate post-deprivation remedy – a NY CPLR Article 78 proceeding. Plaintiffs argued that the claim should not be dismissed, because defendants failed to follow procedures in the Town Code and the Article 78 proceeding could not address pre-deprivation violations or reward damages. The court reasoned that an Article 78 proceeding provides the opportunity to review whether a body or officer ‘failed to perform a duty enjoined upon it by law’ or whether a specific act was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion,’ and permits the state court to remedy the violation by ordering a hearing or a return of the unlawfully seized property.” (quoting N.Y. C.P.L.R. 7803). Accordingly, the court dismissed the procedural due process claim.

Ahmed v Town of Oyster Bay, 2014 WL 1092363 (EDNY 318/2014)

Seven Generations Corp. applied for a CUP to operate a solid waste disposal facility in Hurlbut, Wisconsin. Seven Generations provided a detailed summary of the project, which was forwarded to the City’s Plan Commission. This facility would utilize pyrolysis, described as the “thermal decomposition of organic matter at temperatures sufficient to [vaporize] or gasify organic material in the absence of oxygen….” Seven Generations represented that the facility would convert municipal solid waste and other waste materials to energy by heating them in a sealed chamber with high efficiency, low emissions mono-nitrogen oxide burners. In August 2011, Seven Generations applied for a building permit for the facility, which the City granted.

The Common Council voted to direct the Plan Commission to hold a hearing to determine whether the CUP had been obtained by misrepresentation. They asserted Seven Generations had misrepresented the potential environmental impact of the facility when applying for the CUP; specifically, they claimed the facility would have exhaust stacks and produce emissions. Notice of the hearing was published in late September 2012, and the issue was defined as whether “the information submitted and presented to the Plan Commission was adequate for it to make an informed decision whether or not to advance the [CUP] that was recommended.” By a vote of seven to five, the Common Council voted to revoke the CUP based upon unidentified misrepresentations.

On appeal, the court held that the City generically stated that Cornelius had made “false statements” while responding to questions and concerns about “the public safety and health aspect of the Project and the Project’s impact upon the City’s environment.” The City claimed these misrepresentations were made by Seven Generations representatives while answering questions about “emissions, chemicals, and hazardous materials.” But none of these findings identified the supposedly false statements with any specificity. Because the City did not identify the statements on which its action was based, its decision appeared to the court to be the product of “unconsidered, wilful or irrational choice, and not the result of the ‘sifting and winnowing’ process.” Accordingly the court struck the City’s decision as arbitrary and capricious.

Oneida Seven Generations Corp v City of Green Bay, 2014 WL 1182629 (Wisc. App. 3/25/2014)

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=109414

The Eric A. Knudsen Trust’s (“Knudsen Trust”) filed an application with the Planning Commission of the County of Kauai, Hawai’i to subdivide land it owned, to implement Phase I of its planned residential community development. The historic Hapa Road bordered the development. The State Historic Preservation Division (“SHPD”) recommended conducting an archaeological inventory survey of the parcels of land in the application, submitting a report to SHPD for review and approval, and developing detailed mitigation plans if significant historic sites were recommended for mitigation.
To obtain final approval, the Knudsen Trust was required to comply with certain requirements. The Knudsen Trust completed a final environmental impact statement (“Final EIS”) for its development discussing a portion of Hapa Road to be improved as a pedestrian and bicycle path and the historic rock walls would be preserved and restored. The State Land Use Commission approved the Final EIS. The Planning Commission granted final subdivision approval of the development.

Subsequently, Theodore Blake (“Blake”) filed a complaint in the Circuit Court asserting six counts: (1) that the Defendants failed to fulfill the obligations imposed upon them by the public trust doctrine; (2) that the County Defendants failed to thoroughly investigate and protect Native Hawaiian rights; (3) that the Defendants failed to comply with rules governing procedures for historic preservation review; (4) that the subdivision approval and construction threatened to cause irreparable injury to burial sites and other historic sites; (5) that because the Knudsen Trust’s land was located within the State’s coastal zone management area, the Planning Commission was obligated to give “full consideration of historic and cultural values prior to decision making the Coastal Zone Management Act (“CZMA”); and (6) that the Knudsen Trust would breach a part of Hapa Road to allow vehicular traffic into its development. Blake later amended his complaint stating that Hapa Road was owned by the State and not the County; that the Knudsen Trust caused a public nuisance in altering Hapa Road without appropriate government authorization; and alleged that the Knudsen Trust was negligent when it altered Hapa Road without appropriate government authorization.

The State filed a motion for summary judgment arguing that Blake’s claims were not ripe because the Knudsen Trust was prohibited from going forward on the development until such time as it received approval from the BLNR for an easement across Hapa Road, a final agency action. The circuit court granted summary judgment, stating that Hapa Road was owned by the State of Hawaii. The subdivision plan submitted to the Planning Commission, required access across Hapa Road. Further, that there had been no final agency action. Therefore, the matter was not ripe.

Blake raised two points to the Intermediate Court of Appeals (“ICA”): (1) that the circuit court erred in granting the State Defendant’s motion for summary judgment; and (2) that the circuit court erred in failing to grant summary judgment in his favor. Further, even if one of the counts were not ripe, judicial economy would not be served by dismissing all the other counts.
The State argued that the case was not ripe because there needed to be further factual development as to what actions would be taken by the parties, and the State, as owner of Hapa Road, had not taken final action as to whether to grant or deny an easement. Further, the circuit court correctly dismissed all the other claims in the interest of judicial economy. The Knudsen Trust argued that Blake’s claims were not ripe because further factual development was needed and no final agency action had been taken.

The appeals court affirmed and Blake filed an application for writ of certiorari asserting eight counts: (1) the State and County Defendants failed to fulfill their public trust obligations; (2) the Defendants failed to investigate and protect Native Hawaiian rights; (3) the Defendants failed to comply with the Hawaii statutes; (4) the Defendants irreparably injured historic sites, including burial sites; (5) the Defendants failed to comply with the objectives, policies, and guidelines of the CZMA; (6) the Defendants failed to submit or require a supplemental EIS for the proposed breach of Hapa Trail; (7) the Knudsen Trust caused a public nuisance by failing to preserve and by altering Hapa Road without appropriate government authorization; and (8) the Knudsen Trust was negligent in failing to preserve the Hapa Road and its adjacent walls.

The Supreme Court held that the court below erred because all of the claims were ripe for adjudication. The court stated that that there is final agency action even when there are pending conditions on a final approval of a permit, and that final agency action refers to the agency’s whose decision was being challenged. Here, it was clear that the Planning Commission’s final approval of the Knudsen Trust’s subdivision application was a “final agency action” because it granted “final approval months before Blake discovered that Hapa Road was owned by the State. Although BLNR would need to grant an easement, the pendency did not “per se affect the finality of the Planning Commission’s approval for purposes of appeal because Blake was challenging the Planning Commission’s action, and not the action of BLNR. Also, the Planning Commission’s final approval appeared to have been the County’s definitive position on the subdivision application. Because the Planning Director sent the Knudsen Trust a letter indicating that the subdivision was “granted final approval which comported with the rules for service of decisions. Furthermore, construction commenced on the property following the Planning Commission’s final approval. The commencement of construction was clearly an “effect” of that decision.

The court stated that Counts 1-5 were ripe for adjudication because the Planning Commission’s approval of the subdivision constituted a “final agency action” regardless of where the access point was located. The court stated that Count 6 was ripe for adjudication because there was no need for further factual development. The court disagreed with the Defendants argument that further factual development was necessary regarding the necessity of a Supplemental EIS to address a breach of Hapa Road, because it was unclear whether the BLNR would grant an easement over Hapa Road to allow access to the development. However, the circuit court failed to consider the necessity of a Supplemental EIS. Therefore, the question of the necessity of a Supplemental EIS was ripe for review, regardless of BLNR’s approval. The court stated that Counts 7 and 8 were ripe for adjudication. The court stated that Blake’s claims involved alleged conduct that has already occurred. Counts 7 and 8 pertained to two incidents in which the Knudsen Trust allegedly altered the walls. The decision as to whether Hapa Road was used as an access to the development was irrelevant to the resolution of those claims. Further, case law indicates that the proper course for a court faced with a complaint asserting both ripe and unripe claims is to either proceed on the ripe claims, or to stay some or all of the ripe claims in the interest of judicial economy. Therefore, it was clear that the circuit court and the court could address the merits of some claims even when other claims are unripe.
Therefore, the judgment was vacated and the case was remanded.

Blake v. County of Kaua’i Planning Comm’n, 315 P.3d 749 (HI 12/19/13)

The opinion can be accessed at: http://www.inversecondemnation.com/files/scwc-11-0000342.pdf

For Rob Thomas’s summary of the case see: http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/11429/Blake-v-Kauai-Recktenwald-Court-continues-Moon-Courts-policies.aspx

Plaintiffs, the Lelands, owned property in Northfield Township, Michigan. The property had been zoned Agricultural (“AR”), and had been farmed that way for over 100 years. Plaintiff Grand/Sakwa executed an agreement to purchase the property and paid a nonrefundable deposit. Plaintiffs applied to rezone the property to SR–1 single-family residential (“SR–1”). SR–1 allowed up to four dwellings per acre with sewer service, or one per acre without sewer service. The township board approved the rezoning. After a referendum, which overruled the board’s decision, the property remained AR. The Zoning Board of Appeals denied plaintiffs’ requests for use or dimensional zoning variances.

Plaintiffs commenced an action alleging that any zoning classification more restrictive than SR–1 constituted a regulatory taking. Shortly thereafter, a new township board took office and amended the zoning ordinances, rezoning the property to LR low-density residential (“LR”), which allowed only one home per two acres. Therefore, at the time of the bench trial, the property was zoned LR. Plaintiffs argued that whether a regulatory taking existed should be determined by evaluating the AR zoning that existed at the time the lawsuit was filed. The township argued it should be determined based upon the LR zoning that existed at the time of the bench trial. The trial court ruled that the relevant zoning ordinance was LR and no constitutional violation had occurred.

On appeal plaintiffs first argued that the trial court erred by ruling that their challenge went to LR zoning. The court disagreed stating that the law to be applied was that which was in effect at the time of decision by the trial court. The general rule was subject to an exception. A court will not apply an amendment to a zoning ordinance where the amendment was enacted in bad faith and with unjustified delay. Here, the exception applied only if the trial court found that the newer classification was enacted for the purpose of manufacturing a defense to plaintiff’s suit. Here, the development sought by plaintiffs was never within the zoning classification, and the ordinance they sought to exclude from consideration was one that granted development rights.

The court agreed with the plaintiff that the trial court wrongly characterized the relevant test as requiring application of the newer zoning ordinance unless its adoption was done solely to improve the municipality’s litigation posture. However, they rejected the notion that if improving the municipality’s litigation position played any role in the decision to adopt the new ordinance; bad faith has been sufficiently established. Accordingly, they would not void a municipality’s action simply because it served to strengthen its litigation position. The factual determination that must control was whether the predominant motivation for the ordinance change was improvement of the municipality’s litigation position.

The trial court concluded the rezoning to LR was not done solely as an attempt to improve the Defendant’s position at trial. The board made a decision to allow residential development that maintained a rural character. The trial court also noted that the zoning board had previously granted plaintiffs’ request to rezone the property SR–1. However, the court stated that this could be read as demonstrating recognition by both boards that development was in order, though they disagreed on the degree of that development. Plaintiffs suggested that the township was opposed to all development and only adopted the LR zoning as a litigation strategy. However, plaintiffs concede that, after the old board adopted the SR–1 zoning, it was not possible to propose a referendum to void the SR–1 zoning and institute LR zoning in its place. The only mechanism for the residents to challenge the SR–1 zoning in a referendum was to put it to an up or down vote. Therefore, the trial court did not clearly err by applying LR zoning.

Plaintiffs next argued that the LR zoning constituted an unconstitutional governmental taking under the Penn Central Test. The court disagreed stating that Penn Central calls for the court to consider three factors: the character of the government’s action, the economic effect of the regulation on the property, and the extent by which the regulation has interfered with distinct, investment-backed expectations.

Plaintiffs maintained that the LR zoning created a loss of the value. Here, the LR zoning classification allowed a much more valuable use of the property than did AR zoning. No rights existing under AR zoning were denied under the LR zoning. In fact the LR zoning substantially expanded plaintiffs’ land use rights, allowing residential development to occur. Plaintiffs also argued that the trial court made several errors in its decision to admit or exclude certain evidence regarding the value of the property. First, plaintiffs contended that the trial court should not have admitted evidence of a 1998 sale of 77 acres by the Lelands for $10,000 per acre. Second, plaintiffs objected to the consideration of a 1996 appraisal that valued 120 acres of the property at $3,500 per acre. Third, plaintiffs asserted that the trial court should not have considered evidence that a local church was interested in purchasing 15 acres of the property for as much as $43,000 per acre. The court concluded that each of these challenges were properly addressed to the weight given to the evidence.

Plaintiffs similarly asserted that the trial court should have excluded the testimony of defendant’s expert witness, who testified to the economic viability of the property under the LR and AR zoning classifications. The trial court heard this testimony, and appropriately held that it went to the weight of the evidence, rather than its admissibility.

Plaintiffs next argued that the trial court erred by excluding testimony from lay witnesses regarding the value of the property under SR–1 zoning. The trial court held that this evidence was only relevant to damages and deferred the testimony pending a ruling on the cause of action. The court agreed with plaintiff that the trial court should have taken the testimony, given that the balancing test requires at least a comparison of the value removed with the value that remains. However, the court could not conclude that the trial court’s ruling constituted an abuse of discretion, given that the township conceded that the property would have greater value if zoned SR–1.

Further, a claimant who purchases land that is subject to zoning limitations with the intent to seek a modification of those limitations accepts the business risk that the limitations will remain in place or be only partially modified. Here, when plaintiffs entered into the purchase agreement, they were aware that the property was zoned AR. Plaintiffs argued that they had a reasonable expectation that the zoning classification would change, but they did not produce any evidence. However, plaintiffs conceded they understood that the zoning modification adopted by the board remained subject to a timely referendum challenge. Thus, plaintiffs’ suggestion that the property was for some time subject to the SR–1 zoning and that the SR–1 classification was taken away from them, after they spent money on the project, failed due to the fundamental fact that the property was never actually zoned SR–1.

Accordingly, because each of the Penn Central factors weighed in the township’s favor, the court found that the trial court did not err by finding that the rezoning of the property LR did not constitute an unconstitutional regulatory taking.

Lastly, plaintiffs argued that rezoning the property violated their due process and equal protection rights because it rendered the property not economically viable. The court disagreed stating that to show a violation of substantive due process, a plaintiff must prove (1) that there is no reasonable governmental interest being advanced by the present zoning classification, or (2) that the ordinance was unreasonable because of a purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area under consideration. The court stated that the trial court did not clearly err when it found that this was not the case. Accepting the trial court’s finding on that point, plaintiffs cannot show that it was a due process violation for the township to zone the property LR.

Regarding the equal protection clause, it was true that the rezoning to LR impacted only plaintiffs’ property. However, it was not the case that the rest of the AR land in the township was rezoned to SR–1, with only plaintiffs’ left behind. Rather, after the referendum, the township acted to give plaintiffs at least some of the relief they sought. It was appropriate to rezone only plaintiffs’ property where it was the only property for which a change in zoning was sought. Moreover, the amendments to the LR zoning classification itself affected all LR-zoned properties, not just plaintiffs’. The township’s goals of controlling growth and maintaining open space were legitimate, the method chosen was not arbitrary or capricious, and plaintiffs’ property was not improperly singled out under the circumstances. Accordingly, the court found that the trial court did not err by ruling for the township on plaintiffs’ due process and equal protection claims. Therefore, they affirmed.

Grand/Sakwa of Northfield, LLC, v. Township of Northfield, 2014 WL 436736 (MI 2/4/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/mi-court-of-appeals/1656574.html

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