Appellee is attempting to construct a solar energy farm in Vermont an applied for a certificate of public good.  The Public Service board, after evaluating evidence presented to it by the Proposal for Decision (PFD), granted it. Appellant, an owner of property near the planned construction site, claims that the Board erred in their granting of the certificate because of its “undue adverse effect” on the aesthetics of the natural landscape as defined by state statute (30 V.S.A. §248(b)(5). 

The Court begins its analysis by noting the substantial level of deference that they give to the Board in matters of “legislative, policy making, process.” The Court will uphold the Board’s legal conclusions as long as they are rationally derived from a correct interpretation of the law and supported by the findings and will not overturn unless the findings are clearly erroneous. 

The court next outlines the rule, laid out in In Re Quechee Lakes, that is used in determining if a particular use presents an “undue adverse effect.” First, it must be determined whether the particular use will have an adverse impact on “scenic and natural beauty” and then, if it does, whether that burden is undue. In determining if a burden is undue, three conditions must be met. First, the project must not violate a clear, written, community standard intended to preserve the natural beauty of the area. Second, it must not offend the sensibilities of the average person. Third, the applicant must have taken mitigating steps that a reasonable person would to improve the harmony of the project with the surrounding area.  

In its initial ruling, the Board found that the evidence presented in the PFD satisfied the Quechee test. On appeal, appellant argues with, but does not dispel the evidence in the PFD supporting the Board’s finding. The court held that a mere disagreement with the board does not establish a reversible error and that where a conflict in the evidence develops, its resolution falls within the board’s jurisdiction as it is the proper trier of fact. Finding no error in the findings, the Court deferred to the Board and affirmed their decision. 

In re Petition of Cross Pollination for a 30 V.S.A. Section 248 Certificate of Public Good, 2012 WL 1352675 (Vt.) 

The opinion can be accessed  at: http://info.libraries.vermont.gov/supct/current/eo2011-352.html

Appellant, a scrap metal recycling business, operated lawfully in a commercial zone in Sheboygan. Over the years, the business expanded and began to resemble a junkyard. The city plan commission determined that the business had evolved into a use not allowed under the zoning code and in order to continue to operate, the owner needed to clean up the property and obtain a conditional use permit.

The owner  applied for a permit, but before his application could be considered, the city council amended Ordinance 11, the ordinance under which the appellant applied, to “eliminate all permitted uses in (the zoning district) unless the property owner obtained a conditional use permit.” At this point, the property cleanup was incomplete and the City denied the conditional use permit. The Appellant did not follow any avenue of appeal and the property remained dormant until in 2007 when the Appellant filed another application for a conditional use permit which was rejected as incomplete. 

The next year the State Supreme Court decided Town of Rhine v. Bizzell which held that zoning ordinances that preclude any use as of right in a zoning district is unconstitutional on its face unless it has some substantial relation to the public health, safety, morals or general welfare. In response to this ruling and to allow themselves times to address it properly, the city council passed a moratorium prohibiting all development in its commercial zones.  In response to the ruling, Appellant commenced an action against the city seeking a judicial determination as to the validity of the moratorium and Ordinance 11. The Circuit Court held that the ordinance was unconstitutional in light of the Town of Rhine decision but the moratorium was constitutional. Appellant amended his complaint to assert an inverse condemnation claim on the basis that Ordinance 11 was so restrictive as to amount to a regulatory taking of his property. Among other reasons, the circuit court dismissed the claim because appellant  did not demonstrate that the unconstitutional ordinance was a “substantial factor” in any injury to him and that the requirement of the conditional use permit was not a “taking” of his property. Appellant appealed the Circuit Court’s findings as to his “takings” claim; that his need for or the denial of the conditional use permit did not constitute a deprivation of all economically beneficial or productive use of his land. 

The Court of Appeals affirmed the ruling of the Circuit Court holding first, that the requirement of the appellant to acquire a conditional use permit and the denial of his application were based on the earlier ordinance, therefore the constitutionality of Ordinance 11 was not a substantial factor in his claimed injury. Second, the finding that the appellant needed a conditional use permit to run his business did not deprive him of substantially all the beneficial use of his property. Therefore, because appellant did not show that Ordinance 11 was a substantial factor in producing his alleged injury and did not show that his property rights were fully taken, his claim fails. 

Butzen v. City of Sheboygan Falls, 2012 WI App 40 (2012) 

Available online at: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=78777

The petitioners own lake-front property in the town of Arietta.  The property is zoned for single or multi-family residential use and contains a six-bedroom house.  The petitioners intended to use the house as a second home but once they bought the property, they advertised it on the internet as a vacation rental and also joined the Chamber of Commerce.  During their first summer as owners, the petitioners rented their home for seven weeks and entertained guests there during much of the remaining time.  After a complaint, the town zoning enforcement officer told the petitioners that he believed they were improperly operating a tourist accommodation, violating the town’s land use ordinance.  After being informed, the petitioners discontinued advertisement and declined to renew their membership with the Chamber of Commerce.  Petitioners also asked the town for an interpretation of the zoning law that allowed them to use their home for an occasional rental or, alternatively, a special use permit.  The town planning board denied petitioner’s application and the zoning board of appeals affirmed. 

The petitioners brought this Article 78 proceeding seeking a determination that the zoning board’s decision was irrational because the use of their land is not a tourist accommodation and nothing in the law prohibits occasional rentals.  The trial court found in favor of the petitioners and the town appeals.

The court begins by explaining that although it generally grants deference to a zoning board of appeals, where the question at issue is solely a legal interpretation, the court need not give deference.  The court next examines the zoning law of the town.  The court finds that a single family residence is defined as a building “used as the living quarters for one family” and includes seasonal cottages.  Conversely, a tourist accommodation is defined as a “transient facility used to house the general public.” 

Considering these definitions, the court finds that the zoning board’s decision that petitioner’s property is a tourist accommodation was irrational.  Even though petitioners marketed the property “somewhat aggressive[ly],” and joined the Chamber of Commerce, these actions do not transform their single-family home into a tourist accommodation, explains the court.  Further, the court explains, even if it did, the petitioners has declined to continue to use their property for rental uses before the zoning board’s determination.  

The court further finds that there is nothing explicitly in the town zoning law prohibiting use of property as occasional rental property to vacationers.  Renting their home, explains the court did not place the residence outside of the definition for single-family residence, especially since the law explicitly includes a seasonal cottage.  Finally, any ambiguity in terms of whether the petitioner’s property falls within the definition of single-family residence must be construed in favor of the petitioners.  

Atkinson v. Wilt, 2012 WL 1127405 (N.Y. A. D. 3 Dep’t 04/05/2012) 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2012/513469.pdf

The Wisconsin Supreme Court upheld the town’s nonmetallic mining ordinance, enacted as a general police power regulation, against a challenge that it was an improperly adopted zoning ordinance. 

Background on the Town and the Police Power Authority to Adopt the Ordinance  

The Town of Cooks Valley is an unzoned town located in Chippewa County. Chippewa County has a county zoning ordinance but the Town has not approved the application of the County’s zoning ordinance in the Town, nor has the Town adopted its own ordinance. In 2008, the Town adopted a nonmetallic mining ordinance to regulate nonmetallic mining operations within the Town. The Town had adopted village powers in 2001 and the Town used the general police power authority given to villages (and Towns that adopt village powers) as the authority to adopt the ordinance. This basic police power authority is “the power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public.” Wis. Stat. § 61.35(1).      

The Town’s Nonmetallic Mining Ordinance

The Town’s nonmetallic mining ordinance requires a permit for the operation of nonmetallic mines and sets forth the application process. The appendix to the Ordinance contains the application form, which the applicant must submit to the Town Clerk along with an application fee. The application is first considered by the Town Plan Commission and copies are distributed to all residents who own land adjoining the proposed site. The Town Plan Commission then makes a recommendation to the Town Board. The Town Board considers the recommendation at a public meeting and takes comments from the public. The Town Board determines whether the “mine is in the best interests of the citizens of the Town, and will be consistent with the protection of public health, safety and general welfare;” and whether the applicant has received any required federal, state, and county permits. If these criteria are satisfied, the Town Board “shall grant the permit, either with or without conditions.”

The Ordinance elaborates on the type of conditions that the Town may impose on nonmetallic mining “to protect public health and safety and promote the general welfare of the Town” as follows: Such conditions may include, but are not limited to, restrictive provisions and proof of financial security for reclamation, restrictive provisions and proof of financial security for town road maintenance and repair, restrictions on hours of operation, restrictions on truck routes on town roads, restrictions on truck and traffic volume into and out of the mine site, restrictions to protect groundwater quantity and quality, restrictions to safeguard public and private drinking and agricultural wells, restrictions to control air emissions and dust from the mine and its operations, and any other restrictions deemed necessary and appropriate . . . .

Finally, the Ordinance exempts preexisting mines from the application and permit requirements. The Ordinance applies, however, to expansion of preexisting mines. 

The Lawsuit  

The plaintiffs own land in the Town and have engaged in nonmetallic mining operations. They brought the lawsuit contending that the nonmetallic mining ordinance is a zoning ordinance and is invalid because the Town did not have the County approve the ordinance, as required for town zoning ordinances in counties with a county zoning ordinance. The Town claimed the ordinance is not a zoning ordinance, recognizing that different types of ordinances, such as subdivision ordinances, can overlap. The Circuit Court, however, agreed with the property owners. The own appealed to the Court of Appeals. In evaluating the appeal, the Court of Appeals, did not decide the case. Rather, the Court of Appeals certified the appeal to the Wisconsin Supreme Court to clarify the factors that distinguish a zoning ordinance from other ordinances enacted under a town’s general police powers. The Wisconsin Supreme Court granted the certification petition of the Court of Appeals, Zwiefelhofer v. Town of Cooks Valley, 2011 WI 89, 336 Wis. 2d 641, 804 N.W.2d 82.

 The Wisconsin Supreme Court’s decision focuses on whether or not the nonmetallic mining ordinance is a zoning ordinance. The unanimous Wisconsin Supreme Court decision, written by Justice Shirley Abrahamson (Justice Prosser did not participate), evaluates the Town’s ordinance against some of the common characteristics of a traditional zoning ordinance and concludes that the Town’s ordinance is not a zoning ordinance. The Court notes that many traditional characteristics of zoning ordinances are absent from the Ordinance. The Ordinance does not create multiple districts; it applies with equal force to any location in the Town. The Ordinance does not confine nonmetallic mining to any particular area in the Town; no parts of the Town are foreclosed to nonmetallic mining. The Ordinance does not directly affect where an activity may take place; it governs how an activity must be conducted and incidentally limits where it may be conducted. The Ordinance does not automatically permit or prohibit any land use; it operates entirely on a case-by-case basis. The Ordinance does not comprehensively address a wide range of potential classes of land use; it speaks only to a single, specific land use.

However, the Court did find that the Town’s ordinance has several similarities to a zoning ordinance. The Town’s ordinance mentions conditional uses and excludes exiting mining operations. Conditional allowance of a land use and exemption of preexisting land uses are features associated with zoning ordinances. The Town’s ordinance clearly regulates the use of land in a potentially dramatic way. It regulates nonmetallic mining in many respects and in great detail. A landowner might be barred from engaging in nonmetallic mining in a certain location or in the entire Town because of the terms of the ordinance.

While the Supreme Court recognizes that the extent to which an ordinance affects the use of land is a relevant consideration in determining whether the regulation is a zoning ordinance, that consideration is not dispositive. As noted by the Court: “Many non-zoning ordinances affect the use of land.”

The Court’s decision confirms an important non-zoning tool available to local government to regulate activities such as nonmetallic mining to protect public health, safety, and welfare. Finally, since the ordinance is not a zoning ordinance it is not required by law to be consistent with a local comprehensive plan.

Zwiefelhofer v Town of Cooks Valley, 2012 WL 386392 (Wis. 2/8/2012)

The opinion can be accessed at: http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=77767

This abstract was written by Brian W. Ohm, JD, Vice-President of Chapter Affairs for the Wisconsin Chapter of the American Planning Association and it appears in the monthly chapter law and legislation report at: http://www.wisconsinplanners.org/attachments/Legislative%20Updates/WAPA%20February%202012%20case%20law%20update.pdf

Dear Readers,

I am pasting in a press release announcing exciting news — later this summer I will assume the position of Dean of the Touro Law Center in Central Islip, New York.  This is a very exciting move and the school is located in an area ripe for even more land use work!  I plan to continue the blog and many other land use related activities. 

 ************           

 

Contact: Patti Desrochers

Director of Communications

pattid@tourolaw.edu, (631) 761-7062

 

Office of Development and Public Affairs

May 10, 2012

 

Touro Law Center Welcomes New Dean

Patricia E. Salkin, Renowned Legal Scholar, Named First Female Dean of Touro College Jacob D. Fuchsberg Law Center

Touro College & University System President and CEO, Dr. Alan Kadish, is pleased to announce that Patricia E. Salkin has been appointed the new dean of the Touro College Jacob D. Fuchsberg Law Center. Salkin is a nationally known scholar and expert in land use planning and government ethics. She is currently the Associate Dean and Director of the Government Law Center of Albany Law School where she is also the Raymond & Ella Smith Distinguished Professor of Law.

“When searching for a new leader for Touro Law Center, we sought a dynamic individual with professional distinction who demonstrated potential for achieving and maintaining excellence and innovation in teaching, research, scholarship and service in the public interest,” said Dr. Kadish. “I am confident that we found such a candidate in Patricia Salkin. I look forward to working with her as she leads the Touro Law Center into the future.”

Salkin was named Touro College Jacob D. Fuchsberg’s dean after a national search to replace current Dean Lawrence Raful. Raful announced last July that he would be stepping down to join the faculty full time after serving as dean for eight years. Salkin is the fifth dean appointed at Touro Law, and is the first female dean in the school’s history. Salkin will begin her tenure as dean on August 1, 2012.

The chair of the search committee, Allen Fagin, partner and former Chairman of Proskauer Rose stated, “Patricia Salkin was a most impressive candidate from the early stages of the search. Her experience in legal education, land use and public policy as well as her desire to be innovative are a perfect fit for Long Island and Touro Law. She is well positioned to lead Touro Law into the next era of legal education. Both in her professional career and in her personal values she is someone who embraces the core mission of Touro.”

Touro College Board of Trustees Chairman Dr. Mark Hasten shares in the enthusiasm and is pleased that Salkin is joining the Touro Law family. “Salkin brings a compelling mix of talent and skill to this position,” said Dr. Hasten. “She has a national reputation as a legal expert as well as a deep passion for the law and legal education. I believe her leadership coupled with the law school’s commitment to innovation and rich traditions of excellence are a combination that will prove beneficial to our students, our alumni and the entire community.”

Patricia E. Salkin is the author of numerous casebooks, treatises, books and more than 100 articles, columns, studies and reports on topics including municipal law, sustainable development law, climate change, affordable housing, and aging law. Dean Salkin is an accomplished administrator, scholar and teacher who also holds many leadership appointments in the profession, including within the American Bar Association and the New York State Bar Association where she serves in the House of Delegates and has led sections, committees and task forces. She also served as chair of the State and Local Government Law Section for the American Association of Law Schools.  An elected member of the American Law Institute, Salkin currently serves as an Advisor for the drafting of the Principles on the Law of Government Ethics. Salkin is the long-time chair of the amicus curiae committee for the American Planning Association, and she serves on the Editorial Advisory Board of the Urban Lawyer. 

In accepting the appointment, Salkin stated, “I am honored to become a part of the Touro College family, and I am looking forward to working with faculty, staff, students, alumni and the community to be leaders in the changes in legal education and in the legal profession, ensuring that the Law Center is recognized statewide and nationally as stronger and more relevant to the demands of a changing profession.”   She continued, “Touro Law Center has an excellent reputation for educating practice-ready lawyers and there are significant opportunities to further develop its unique court collaboration and observation programs and its Public Advocacy Center into national models.”  

Salkin has served on the transition teams for attorneys general-elect Eric Schneiderman, Andrew Cuomo and Eliot Spitzer. She serves as a member of the University Council for Empire State College and she has also served on the Council for the University at Albany. In addition to consulting work for various state agencies in New York, Salkin has also worked with the National Park Service, the U.S. Environmental Protection Agency, the National Academy for Public Administration and the National Governor’s Association. 

She is the recipient of numerous honors and awards from the ABA, the State Bar, the Capital District Women’s Bar and many other organizations. Salkin has been at Albany Law School for twenty-two years, and previously worked for the State of New York. She presently resides in Glenmont, New York with her husband Howard Gross and their children Sydney and Jordan Gross. 

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  About the Touro College and University System

Touro is a system of Jewish-sponsored non-profit institutions of higher and professional education. Touro College was chartered in 1970 primarily to enrich the Jewish heritage, and to serve the larger American community. Approximately 19,000 students are currently enrolled in its various schools and divisions. Touro College has branch campuses, locations and instructional sites in the New York area, as well as branch campuses and programs in Berlin, Jerusalem, Moscow, Paris, and Florida. Touro University California and its Nevada branch campus, as well as Touro College Los Angeles and Touro University Worldwide, are separately accredited institutions within the Touro College and University System. For further information on Touro College, please go to: http://www.touro.edu/media/. 

Touro College Jacob D. Fuchsberg Law Center’s 185,000-square-foot, state-of-the-art facility is located adjacent to both a state and a federal courthouse in Central Islip, New York.  Touro Law’s proximity to the courthouses, coupled with programming developed to integrate the courtroom into the classroom, provide a one-of-a kind learning model for law students, combining a rigorous curriculum taught by expert faculty with a practical courtroom experience. Touro Law, which has a student body of approximately 750 and an alumni base of more than 5,000, offers full- and part-time J.D. programs, several dual degree programs and graduate law programs for US and foreign law graduates. Touro Law Center is part of the Touro College system.

 

 

Plaintiffs are affiliated with the Orthodox Jewish community and sought to construct Kiryas Radin, a religious and educational facility.  The defendants are four neighboring villages who challenged plaintiff’s proposal in a state court action (“Chestnut Ridge action”).  The defendants alleged that the project would have a negative impact on traffic, water, sewer, and the overall character of the villages, even though the proposal was not in their village.  Plaintiffs brought this federal court action, alleging that the defendants brought the state court action to prevent the plaintiffs from constructing the Kiryas Radin project based on discriminatory intent.  After plaintiff filed an amended complaint addressing many of the issues brought out by a prior court decision, the defendants move to dismiss, alleging plaintiff has failed to state a claim.    

First, the court addresses the standard it must use to review the defendant’s motion to dismiss under Federal Rule 12(b)(6).  The court finds that plaintiff must have shown grounds for relief based on more than just assumptions and conclusory arguments.  The court explains that it will only consider outside proof presented by the defendant to the extent the documents are not in dispute, such as prior court orders.  The court will not consider letters between town officials, however. 

Second, the defendants argue that they are entitled to immunity under the Noerr Pennington doctrine, whether or not they commenced the Chestnut Ridge action with discriminatory intent.  The court disagrees and finds that defendants are not entitled to immunity if their prior suit was brought against plaintiffs for discriminatory purposes.  

Third, the court deals with defendant’s claim that they are still entitled to Noerr Pennington immunity because the plaintiffs have failed to plead that the Chestnut Ridge action was brought for discriminatory reasons under selective treatment.  To show that there was a denial based on selective treatment, the court explains that the plaintiffs must allege (1) that they were treated differently than others in the same position and (2) that this difference was motivated by discriminatory intent. 

Dealing with the first prong of the selective treatment test: whether the plaintiff was treated differently than others similarly situated, the court explains that there are two different methods to determine this.  The first method is where a plaintiff alleges it was treated differently and there is no basis for the differential treatment, and the second is where the differential treatment is based on an “impermissible consideration[].”  The first standard, explains the court, is applied in “class of one claims” and requires an extremely high level of similarity between the plaintiff and the persons alleged to be similarly situated.  The similarity must be high because the plaintiff is asking the court to find that there was no reasonable purpose to treat each differently and, thus, to infer an improper purpose.  Although the defendants argue that the court should apply this standard, the court disagrees. 

Instead, the court finds that courts will apply that standard where there is no purpose and a “slightly less stringent similarly situated standard” where there is an alleged purpose.  Here, the plaintiffs allege that defendants treated them differently because they are Hasidic Jews.  Therefore, the court will apply the less stringent standard.  This standard, explains the court, requires the plaintiff to show that other “individuals that are similarly situated in all material respects” were treated differently.  This does not require an identical person, merely “a reasonably close resemblance of the facts and circumstances.”  

Here, the court explains, to survive a motion to dismiss, the court must only find that plaintiff’s allegations would make it plausible that a reasonable jury could find that they were similarly situated.  The court finds that plaintiff has alleged specific examples of developments, similar in size and scope, that were approved during the same time frame as the plaintiff’s application.  Thus, the court finds that a reasonable person could determine that the projects were materially similar.  The defendant asserts arguments for each of plaintiff’s examples, purportedly showing that they are not similarly situated to the plaintiff.  The court looks at each of plaintiff’s examples, individually, and finds that seven out of the eight properties could reasonably be found to be similarly situated.  

Regarding the second prong to the selective treatment, that differential treatment was motivated by discriminatory intent, the court finds that based on the specific claims and instances in plaintiff’s complaint, there is a plausible inference that defendant acted consciously and discriminatory.  

The court next deals with claims against various defendants that must be dismissed.  The court dismisses plaintiff’s claims against defendants in their individual capacity because they are entitled to Noerr Pennington immunity.  The court also dismisses claims that could have been brought earlier in the Chestnut Ridge action, as un-pled compulsory counterclaims. The court finds that plaintiffs lack standing to challenge the defendant’s zoning laws.  The court, however, holds that the claim is not barred by the statue of limitations and that this court does not have the ability to decide whether the claim is barred for failure to serve a notice of claim, as required by state law.   

Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679 (S.D.N.Y. 09/26/2011) 

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=12858684745743314468&q=%2208+cv+156+(kmk)%22&hl=en&as_sdt=2,33

Petitioners applied to the town board for a special use permit to construct a two-story apartment building in the town of West Seneca.  Following a denial, petitioners brought an Article 78 action and the trial court found that the board’s denial was arbitrary and capricious and ordered the town to issue a special use permit to petitioners.  The town appealed. 

The court finds that the town had several public hearings and denied the petitioners application on two separate grounds: that the sewer system could not handle the construction and that because of the shape of the lot, petitioner’s proposal did not conform to existing structures.  The court finds that the record does not support either of the town’s conclusions.  First, the court finds that the town engineer had a discussion with the town board related to another project and informed the board that the sewer could handle that, larger project.  Second, the court finds that there are dwellings within 200 feet of the proposal that had a similar orientation to the petitioner’s proposal.  Thus, the appellate court finds that the board had no basis to deny petitioner’s special use permit application.  Therefore, the court affirms the decision of the lower court. 

Royal Mgmt. Inc. v. Town of West Seneca, 2012 WL 975609 (N.Y. A.D. 4 Dep’t 03/23/2012) 

The opinion can be accessed at: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2012/03-23-12/PDF/0374.pdf

McGarrell purchased property, on which there was a then existing, single-family, bungalow-style home, in which the original construction of the house predated the Boston zoning code.  McGarrell needed to replace the home due its dilapidation, and because of the size and shape of the lot, any replacement would violate existing dimensional zoning requirements.  However, he could have reconstructed the old house as of right, because it was a preexisting nonconforming structure, and article 9 of the Boston code allowed for some expansions, subject to limitations.  However, because the house was torn down, McGarrell was not entitled to use article 9, and needed to pursue variances.  McGarrell did not obtain any additional approvals before beginning to build a house on the lot that was larger than the old one. After the plaintiff, Sheppard, complained, the city of Boston enjoined construction and defendant McGarrell sought approval for the larger house, which the inspectional services department denied.  He applied for five variances, which were granted, but then revised them again according to the plaintiff’s concerns, in which his new plans brought the house closer to Sheppard’s three-decker house.  McGarrell’s second application for variances was also granted. 

The court stated that under the applicable section of the Boston zoning code, a variance may be granted only if three conditions have all been met, and in reviewing the trial court’s decision, they keep in mind that variances are granted sparingly because if they are granted with too much frequency, “zoning regulations can become a matter of administrative whim.”  Even though the size and shape of the lot present its principal limitations, the judge from the lower court determined those conditions were not peculiar to McGarrell’s lot, because other lots in the neighborhood had the same characteristics.  Under the express terms of the Boston zoning code, the lot’s dimensional limitations could not serve as the reason for a variance. 

The court next explored the peculiar condition which the trial judge relied on (the dilapidated condition of the old house) and that would not justify a variance.  Furthermore, the court reasoned that the construction of the larger house would require more than the minimum variance needed if it would increase noncompliance with the zoning code.  The trial judge stated that the increase of nonconformities was inconsequential and de minimis.  However, the appeals court disagreed and stated the judge committed an error of law with the conclusion that McGarrell could expand the house vertically as a matter of right.  Increasing the size of the building intensified the nonconformity.  The court stated that a property owner could not intensify an existing nonconformity as of right.  The court concluded that the variances the board granted were not the minimum necessary to allow for a reasonable use of the property, and the board acted in excess of its authority. 

As to McGarrell’s claim of alleged discrimination, the court determined that the trial judge’s declining to justify the variance based on personal hardship of the property owner was consistent with the case law.  McGarrell argued that construction of the larger home was necessary to accommodate his disability, and insisting on strict compliance with the zoning regulations would amount to unlawful discrimination under G.L. c. 40A § 3.  However, the court stated that McGarrell could not make a claim for discrimination based on the trial record. 

Finally, the court addressed the plaintiff’s request for the house to be torn down on remand.  The court declined to do so, because it would be more appropriate to consider equitable factors and money damages as an alternative remedy.  The court reversed the judgment affirming the board’s grant of the variances and remanded for further proceedings. 

Sheppard v. Zoning Board of Appeal of Boston, 2012 WL 695557 (Mass. App. Ct., 3/7/2012) 

The opinion can be accessed at: http://law.wustl.edu/landuselaw/cases/A%20Variance%20Case.pdf 

Read more about this decision on the Massachusetts Real Estate Law Blog:  http://www.massrealestatelawblog.com/tag/sheppard-v-boston-zoning-board-of-appeals

T-Mobile received complaints about a gap in coverage in the area of Newport News, Virginia, and identified R.O Nelson Elementary School as a target location for a new wireless communication tower.  Under the local zoning ordinance, construction of the tower required a conditional use permit to be issued.  In April 2008, T-Mobile submitted an application to the Newport News Planning Department for a permit.  The Planning Department and the School Board conducted a study looking into the appropriateness of building towers at elementary schools, and while this study was going on, T-Mobile scheduled a meeting to explain its application in detail and answer any questions.  Fewer than ten residents attended, and at a later hearing, only three spoke in opposition.  The concerns expressed were about radiation exposure to the children and the property values of the nearby homes.  Following the hearing, the City denied the application without explanation. 

The appeals court affirmed that there was not substantial evidence in a written record regarding the City’s denial of T-Mobile’s application.  The court stated that substantial evidence can be described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  The court stated that while the number of persons expressing concerns by itself does not make evidence substantial, it may be relevant to the reasonableness of the concern. Only two citizens expressed concerns regarding property values, and their testimony was vague. 

Furthermore, the concern that workers servicing the tower posing a risk to the students was also speculative.  Both the School Board and the local police department approved T-Mobile’s application without raising this concern.  The last concern was about the health effects of building a tower on school property.  However, the Telecommunications Act of 1996 was clear that potential health effects flowing from the grant of a conditional use permit cannot be used to deny a permit, and they cannot be considered on appeal.  The district court’s judgment was affirmed. 

T-Mobile Northeast LLC v. City Council of the City of Newport News, 2012 WL 990555 (4th Cir. 3/26/2012).                                   

The opinion can be accessed at: http://pacer.ca4.uscourts.gov/opinion.pdf/111293.P.pdf

Plaintiff Sinclair and another resident own adjacent residential parcels.  The other resident contracted with New Cingular Wireless PCS, LLC to install a 103-foot cellular transmission tower on her parcel of land.  The steep topography of her land classified it under the Albemarle County Code as a “critical slope,” which under the Ordinance, it restricts construction on land with slopes of 25 percent or more.  The Ordinance has a detailed procedure for modifying or waiving the requirements of the Ordinance by an application to the planning commission.  Under the Waiver Provision, the planning commission was authorized to grant a waiver from the restrictions otherwise imposed after making findings or imposing conditions it deemed necessary to protect the public health, safety and welfare and to ensure compliance with intent and purpose of the Ordinance.  Sinclair filed a complaint in the circuit court looking for a declaratory judgment that the Waiver Provision was invalid because it conflicted with the statutory scheme governing planning and zoning, and that the county exceeded the power delegated to it by the General Assembly in violation of the Dillon rule because its procedure for considering waiver applications was not authorized by state law.  He also claimed that the Waiver Provision circumvented his right to judicial review. 

Under the Dillon Rule, when a statute enacted by the General Assembly conflicts with an ordinance enacted by a local governing body, the statute must prevail.  Furthermore, the court states that critical slope waivers are neither variances nor zoning modifications.  A variance allows a property owner to do what is otherwise not allowed under the ordinance, and in this case, the ordinance allows construction as long as the landowner applies for prior approval.  This gives the county the chance to review the proposed construction and ensure it will not precipitate the adverse effects it enacted the Ordinance to avoid, or to impose any conditions it determines to be necessary to ameliorate the adverse effects.  The court rejected the first argument that the Waiver Provision conflicted with state law. 

However, the court did agree that the consideration of the critical slope waivers was legislative, not ministerial or administrative.  The court agreed that the procedure for reviewing waiver applications was not authorized by state law and conflicted with the Dillon Rule.  The Waiver Provision confers upon the planning commission the authority to grant or deny a waiver application or impose conditions on its sole discretion with no right of appeal or judicial review for aggrieved third parties.  The three major problems with the Waiver Provision were that the court was unable to determine the public health, safety and welfare factors, there was no right to appeal for aggrieved third parties, and it does not empower the planning commission to merely evaluate and grant or reject based on the factual determination.  It also gave the planning commission power to impose conditions to ameliorate such effects. 

Lastly, the court stated that consideration of critical slope waivers should not be delegated to planning commissions.  The General Assembly had not allowed local governing bodies to delegate legislative decisions to planning commissions, and that duty is inconsistent with the general role reflected by their enabling statutes.  The job of planning commissions was primarily advisory, and they were not granted any executive, legislative or judicial powers.  In the Code itself, there is not a single provision of state law authorizing planning commissions to consider and rule on departures from a zoning ordinance.  The court determined that the county’s delegation to the planning commission of the administration and enforcement of zoning ordinances was inconsistent with the broad authority.  In conclusion, the court held that the Waiver provision was void for exceeding its authority.  The judgment was affirmed with respect to the fact that waivers are not variances, reversed because the decision to grant or deny waiver applications may not be delegated to the planning commission, and remanded for further proceedings.                 

Sinclair v. New Cingular Wireless PCS, LLC, 2012 WL 1132215 (Va. 1/13/2012). 

The opinion can be accessed at: http://law.justia.com/cases/virginia/supreme-court/2012/101831.html