The appellate court found that the Zoning Board’s determination denying the appeal of the petitioner Slonim which challenged the conclusion of the respondent building inspector of the Town of East Hampton, New York, that retail use was pre-existing on the subject property, was not arbitrary, capricious, an abuse of discretion, or irrational.

Slonim v. Town of East Hampton Zoning Board of Appeals, et al., 2014 WL 3263417 (NYAD 2 Dept. 7/9/2014)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2014/2014_05194.htm

The Greens obtained a land use permit for construction on their property, which included the installation of utility lines that would crossover on a portion of Brown’s Lot. Brown was also informed that the building of a driveway would utilize the full width of the right of way, which in return would tamper with Brown’s usage of his Lot. Brown requested a copy of the permit on September 4, 2010, and Brown then proceeded to send a letter on October 7, 2010 that asked whether the land use permit would be revoked and if not, why. Brown received a reply on October 27, 2010 from the county’s planning director, which stated that the land use permit would remain in effect because there were no appeals filed against the land use permit. Brown then proceeded to file an appeal on November 9, 2010, but the board denied this appeal based on the fact that Brown filed it forty-five days after receiving a copy of the building permit, which did not fall within the board’s fifteen-day filing window. Brown then filed a cross complainant in district court and the district court dismissed Brown’s complaint.

In addressing Brown’s appeal, the appeals court found that Brown’s appeal was properly barred, as Brown failed to cite authority that supports the proposition that the fifteen-day time limit for filing an appeal does not apply when a person who lacks authority makes that decision, and that the issue of whether the planning director had the authority to grant the permit could have been addressed if it was timely appealed. With respect to Brown’s claim that the October 27th reply constituted a new land use decision which restarted the time for appeal, the court ruled that Brown had actual or constructive notice of the land use permit on September 4th, and the October 27th letter was merely a response to Brown’s questions submitted on October 7th, which did not reset the time given for Brown to appeal.

Green v Brown, 2014 WL 2989801 (Utah App. 7/3/2014)

The opinion can be accessed at: http://www.utcourts.gov/opinions/appopin/brown247070314.pdf

Plaintiffs Vito Savino and Savino, Inc., (jointly, “Savino”) alleged violations of their Fourteenth Amendment right to equal protection under the law by defendants the Town of Southeast and its former zoning code enforcement officer, Charles Tessmer. Defendants appealed from an order of the District Court denying their motion for summary judgment and denying Tessmer qualified immunity. Plaintiff asserted that Tessmer and the Town discriminatorily applied the facially neutral zoning laws on the basis of Savino’s Italian national origin, and that defendants selectively enforced the zoning laws against him.

The court discussed that to find whether qualified immunity existed it must decide if the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right, and, if so, was the right at issue clearly established at the time of the defendant’s actions. The District Court found that it is unreasonable to believe that applying or enforcing a law based on someone’s national origin does not violate the Fourteenth Amendment, and no official of reasonable competence would disagree. However, the material issue of fact that remains in dispute—Tessmer’s motivations and whether he actually made the “Guineas” comment—goes both to whether he is entitled to qualified immunity and whether Savino’s equal protection rights were in fact violated. Accordingly this court held that summary judgment was properly denied.

Defendants also asked that the court exercise pendent appellate jurisdiction to review the District Court’s denial of summary judgment as to the Town of Southeast. The Court of Appeals found that the circumstances of this case do not justify choosing to exercise our discretionary appellate jurisdiction over the Town’s appeal. Accordingly, the court affirmed the District Court and remanded the question of qualified immunity to the District Court for further proceedings.

Savino v Town of Southeast, 2014 WL 3036081 (2nd Cir. CA 7/7/2014)

The opinion can be accessed at: https://www.courtlistener.com/ca2/eKgj/savino-v-town-of-southeast

Posted by: Patricia Salkin | July 6, 2014

The Taking Isssue is Still An Issue

In October 2013, with the launch of Touro Law Center’s new Institute on Land Use and Sustainable Development Law, the Touro Law Review held a symposium to commemorate the 40th anniversary of “The Taking Issue: A Study of the Constitutional Limits of Governmental Authority to Regulate the Use of Privately-Owned Land Without Paying Compensation to the Owners” (The Takings Issue), the Council on Environmental Quality’s seminal report by Fred Bosselman, David Callies and John Banta. For this symposium Touro Law Review assembled some of today’s leading luminaries to reflect on how the taking issue has evolved and to assess where we are today. What follows is a link to the Introduction that discusses the “The Taking Issue” and provides a description of the contributions to the symposium. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2459157

Sanrose Reality sought a special permit to covert a previously installed sign to a billboard that advertised its business on property it owned next to route 95 (but not on-site with the business use). The zoning board denied the request, finding that while a sign advertising an on-site business is an accessory use, a billboard advertising off-site business is not listed as a permitted use in any district.

The Massachusetts Land Court upheld the board’s decision finding that billboards were not included in the zoning board’s list of permitted principal uses. The Court further found the argument for the use of a billboard to attract business was without merit because the proposed advertisements would not draw business from the highway to businesses in the district, but instead send people elsewhere to the advertised off-premises businesses. The Court also noted that of the three other signs in the district that had been allowed, two of the billboards were preexisting non-conforming uses, and the third was permitted because it stood on property leased by a sign manufacturer. Therefore, the court held that the zoning board exercised proper discretion in denying the special permit.

Sanrose Realty Associates, LLP v Hutchings, 2014 WL 3016328 (MA Land Court 7/2/2014)

The opinion can be accessed at: http://masscases.com/cases/land/2014/2014-12-474294-JUDGMENT.html

Plaintiffs Richard Zito, Sonny Zito Recycling Inc., and The 1815 LLC (jointly, “Zito”) appeal the judgment of the District Court dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), their claim against the Town of Wawayanda (the “Town”) for violation of the Equal Protection Clause of the Fourteenth Amendment . Zito conducted the business of “recycling and solid waste stockpiling, storage, transportation, transfer and disposal” on property it owned in the Town. The Town initiated proceedings against Zito to abate what it deemed illegal use of the property in a zone that prohibited “Industrial Uses”—a category which includes recycling as carried out on Zito’s property. The Town and Zito settled the dispute by executing an agreement (the “Stipulation”) under which Zito was permitted to continue its “non-conforming use” under significant limitations imposed by the Stipulation. In 2013, Zito submitted a letter to the Town requesting that the Stipulation be rescinded and that Zito be permitted to resume its recycling operations in full. Zito argued, its recycling business should be permitted in full because it was “exactly the same” as Brookfield’s operation and, therefore, a permissible “Industrial Use.” The District Court dismissed this claim on the basis that Zito failed to plausibly allege that his property was sufficiently similarly situated to Brookfield to support a claim for equal protection violations.

The Second Circuit concluded that Zito had not plausibly alleged that “properties sufficiently similar to [it] were treated more favorably” by the Town in issuing its zoning decisions because several important distinctions between Zito and Brookfield provided a “rational basis for the difference in treatment.” They are in different zones, one of which permits all “Industrial Uses,” and one of which permits only “Light Manufacturing Uses”, and Brookfield is not subject to any agreement similar to the Stipulation. Accordingly the court held Zito’s equal protection claim failed and affirmed the District Court.

Zito v Town of Wawayanda, 2014 WL 2959472 (2nd Cir. CA 7/2/2014)

The opinion can be accessed at: https://www.courtlistener.com/ca2/eKah/zito-v-town-of-wawayanda

Claimant, KKS Properties, LLC, was the owner of property in the Town of Bethlehem, Albany County, New York. On May 12, 2006, in conjunction with the construction of an extension of State Route 85, petitioner, the State of New York, appropriated a parcel of claimant’s property, which bifurcated the property from north to south, leaving a 3.736–acre parcel to the east of the bypass and an 18.44–acre parcel to the west. The eastern parcel continued to enjoy access, while access to the western parcel was reduced to a 43–meter conditional right of access, which was encumbered by wetlands, a fire hydrant and road signage. Claimant and petitioner entered into an agreement for payment in the amount of $718,500 for the appropriation.

However, the claimant commenced this proceeding, asserting that the limited access granted to the western parcel of its land had rendered the northernmost 16.04–acres unsuitable for development to its highest and best use, and sought consequential damages of $1,583,000. The Court of Claims concluded that claimant had suffered total damages of $532,000 as a result of the taking. Petitioner then moved pursuant to EDPL 304(H) for an order awarding it judgment against claimant for its overpayment. The court thereafter dismissed the claim and entered judgment in favor of petitioner for $304,679.57, which included petitioner’s overpayment of $186,500, plus statutory interest. Claimant appealed.

The Appellate Division reversed stating that when private property is appropriated for public use, just compensation must be paid, requiring that the owner be placed in the financial position that he or she would have occupied had the property not been taken.
Upon a partial taking of real property, an owner is not only entitled to the value of the land taken but also to consequential damages, which consist of the diminution in value of the owner’s remaining land as a result of the taking or the use of the property taken. Damages must be measured based upon the fair market value of the property as if it were being put to its highest and best use on the date of the appropriation, whether or not the property was being used in such manner at that time.

Here, the eastern portion of the subject property, as it existed prior to the taking, was rezoned from residential to hamlet while the western portion was rezoned to commercial hamlet. The Court of Claims had found that claimant’s property would not have been rezoned absent the bypass extension and concluded that it was not permitted to take into account any enhancement in value attributable to the reason for the appropriation itself, the highest and best use of the land-both before and after the taking-was for residential development. Relying primarily on residential comparable sales as a baseline and finding that claimant had sustained some consequential damages to the western parcel of its property due to limited access, the court determined that claimant suffered total damages of $532,000 as a result of the taking.

The Court of Claims erred in valuing claimant’s property based upon residential development as its highest and best use. While it is well settled that a condemnee may not receive an enhanced value for its property when the enhancement can be exclusively attributed to the reason for the taking itself, the court found that the petitioner failed to demonstrate that “but for” the bypass extension, claimant’s property would not have been rezoned. The record had demonstrated that the change in zoning of the subject property, which occurred prior to the taking, was part of a comprehensive rezoning of the entire Town. The court stated, “The predominant rule in condemnation cases is that in determining an award to an owner of condemned property, the findings must either be within the range of the expert testimony, or be supported by other evidence and adequately explained by the court” Here, because the appraisals of both parties’ experts were flawed, the appellate court was constrained to remit the matter to the Court of Claims for further proceedings to determine the valuation of claimant’s property and the calculation of claimant’s damages based on the property’s highest and best use as hamlet and commercial hamlet lands.

In re Acquisition of Real Prop. by State, 2014 WL 2972068 (NY 7/3/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/517533.pdf

Petitioners owned and operated the Greentree Country Club in New Rochelle, New York (“Greentree”), a beach club with clubhouse facilities overlooking the Long Island Sound. The petitioners added two walls to each of two partly-enclosed outdoor porches on the second floor of the clubhouse to create secure storage and office space. The City of New Rochelle issued the petitioners a violation for not obtaining a building permit. The petitioners then applied for a building permit. The application was denied. The Deputy Building Official found that the enclosure of the porches was not a “renovation” within the scope of the Code of the City of New Rochelle § 331–45(D), which allowed membership clubs to renovate their premises as of right. Petitioners then applied to the Zoning Board for a use variance. The Zoning Board denied the application, and the petitioners commenced an article 78 proceeding to review the denial and direct the Building Official to legalize the enclosed porches.

The court began by noting that “In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion” Section § 331–45(D) of the Code allows beach clubs to “remain or be renovated at their present location” subject to various specifications and restrictions relating to, inter alia, maximum size and coverage of structures on the lot, allowable noise and sound levels, and the number of cabanas or lockers. Here, testimony established that the enclosure of the porches did not extend the “footprint” of the clubhouse or increase Greentree’s capacity to add to their membership. The testimony also established that the enclosures were made within the existing footprint of the two porches. Further, the proposed renovation did not result in detriment to neighboring properties. The appellate court concluded that the trial court properly granted the petition, annulled the Zoning Board’s determination, and ordered the issuance of the permit.

Greentree Country Club, Inc. v City of New Rochelle, 2014 WL 2958423 (NYAD 2 Dept. 7/2/2014)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2014/2014_04931.htm

Plaintiffs are five companies and three individuals who own property in the Swan Beach Subdivision in Currituck County. They filed a complaint against the County of Currituck, the Currituck Board of Commissioners, and the commissioners themselves in their official capacities. They alleged that they have common law vested rights to develop commercial uses on their property, and raised claims of laches, “easement rights” to commercially develop their property, state constitutional violations, and violations of federal equal protection and due process under 42 U.S.C. § 1983. Plaintiffs appeal from the district court’s order dismissing their complaint for declaratory judgment regarding vested rights they claimed to develop their property commercially, for violations of constitutional rights under 42 U.S.C. § 1983, and for violation of Article V, Section 2 of the North Carolina Constitution.

The Court of Appeals found that where the interpretation of the ordinance is not at issue, the ordinance prohibits the property owner’s intended use, and the property owner is claiming a common law vested right to such a nonconforming use, the only claim is a constitutional one. In such a case, plaintiffs are not required to first exhaust the procedures before the board of adjustment. Here, plaintiffs specifically alleged that the meaning of the UDO was not in dispute and that their desired use was not allowed under the ordinance and the court therefore concluded that plaintiffs were not required to exhaust administrative remedies before the Currituck County Board of Adjustment in order to bring the present civil action. Accordingly this court found that the trial court erred in dismissing plaintiffs’ vested rights claim under Rule 12(b)(1) for failure to exhaust administrative remedies.

The Court of Appeals also found that the plaintiffs’ § 1983 claims may not be dismissed for failure to exhaust administrative remedies. While claims for violation of procedural due process may be subject to exhaustion requirements, substantive constitutional claims are not. Since plaintiffs’ claims were founded on substantive due process and equal protection, they were not required to exhaust any administrative process to bring these claims. Thus the court held that the trial court erred in dismissing plaintiffs’ claims under 42 U.S.C. § 1983 because the claims were not barred by sovereign immunity or failure to exhaust administrative remedies.

Swan Beach Corolla, LLC v County of Currituck, 2013 WL 2937073 (NC App. 7/1/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/nc-court-of-appeals/1671718.html

In one of the most anxiously awaited New York land use decisions in recent memory, the state’s highest court held today that local governments have the power to regulate hydrofracking under their authority to enact zoning ordinances. Both the towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their jurisdictions. The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the details, procedures or operations of the oil and gas industry, not matters normally associated with land use regulation.

The Court of Appeals in Dryden and Middlefield rested its decision on both the Municipal Home Rule Law (MHRL) and the Town Law. The MHRL contains a seldom-cited provision granting authority to local governments, including towns, cities, and villages, to protect and enhance their physical and visual environments. The Town Law is New York’s version of the Standard Zoning Enabling Act, which was the model for most state statutes that delegate zoning authority to local governments. The court pointed to the breadth of municipal zoning powers to provide for the development of a balanced, cohesive community and to the notion that the regulation of land use through the adoption of zoning is one of the core powers of local governments.

The cases, Nos. 130 and 131, are available on the Court of Appeals website, under today’s date. http://www.nycourts.gov/ctapps/Decisions/2014/Jun14/Jun14.htm

Thanks to Professor John Nolon at the Land Use Law Center at Pace Law School for this quick and timely summary.

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