Oakwood Property Management, LLC (“Oakwood”) operates a landscaping business in the Town of Brunswick. In 2002, Oakwood began to expand its business after it obtained site plan approval by purchasing three neighboring parcels of land zoned for industrial, agricultural, and school and cemetery uses respectively. However, as the business spread, neighbors began to complain of the noise and in 2007 the Town’s Code Enforcement Officer sent a letter to Oakwood expressing concern that its business had expanded beyond the scope of the original site plan. After receiving no response, the officer informed Oakwood that it was in violation of the approved site plan and that it needed to submit an amended application. After the matter was adjourned by the Planning Board, the Code Enforcement Officer issued Oakwood a notice of violation stating that it was operating on the agricultural and school zoned parcels without the appropriate approvals, and that its initial operations on the industrial parcel exceeded the bounds of the 2002 site plan approval.

While Oakwood’s appeal was before the Zoning Board of Appeals (“ZBA”) it was issued a second notice alleging various violations of the Town’s zoning ordinance. Oakwood appealed this order as well, but in the end the ZBA sustained the notices of violation and dismissed the appeals. Consequently, Oakwood sought declaratory judgment seeking, inter alia, “to annul the ZBA’s determination and a declaration that the ‘Schools and Cemeteries’ designation as depicted on the Town’s zoning map was unconstitutionally vague.” The court granted the Town’s motion for summary judgment and this appeal ensued.

Oakwood’s first argument was that the municipality was estopped from prohibiting it from conducting its grinding and mulching business on the parcels at issue because the Town was aware of and even encouraged such expansion. The Appellate Division, Third Department disagreed, however, noting that “estoppel cannot be invoked against a municipality to either (1) prevent it from discharging its statutory duties, (2) ratify administrative errors, or (3) preclude it from enforcing its zoning laws.” It could have been invoked had the Town engaged in conduct that was fraudulent or deceitful to which Oakwood reasonably relied on, but the court found no evidence of such conduct and therefore affirmed the lower court’s decision to reject the estoppel claim.

Next, Oakwood argued that the Town’s interpretation of the “Schools and Cemeteries” designation was irrational or unconstitutionally vague because the zoning ordinance did not define what that designation meant. The court responding held that a statute is not vague just because it is not defined; “rather, a statute [or ordinance] will pass constitutional muster so long as it provides persons of ordinary intellect reasonable notice of the proscribed conduct.” The court ruled that a reasonable person would interpret this zoning designation to encompass, self-evidently, schools and cemeteries, and that this simple and obvious understanding would not lead to arbitrary enforcement.

Additionally, the court concluded that Oakwood’s expansion of the business onto the agriculture-zoned parcel was not permitted. Under the Town’s regulations, permitted uses within an agricultural district include “[f]arms” and “[f]orestry and [n]ursery operations.” The court determined that Oakwood’s mulching operation was not encompassed by those terms and therefore it was not a permitted use. Thus, the BA’s determination was rational and was upheld.

Oakwood Property Management, LLC v. Town of Brunswick, 103 A.D.3d 1067, 2013 WL 708806 (N.Y.A.D. 3 Dept. 2/28/2013)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2013/514922.pdf

Norfolk 102, LLC and Norfolk 302, LLC operate Bar Norfolk and Have a Nice Day Café, respectively, in Norfolk, Virginia. In 2009, the City Council of Norfolk revoked a blanket special exception allowing the Bar and Café to operate as “Entertainment Establishments” and serve alcohol, and also denied their applications for special exceptions to continue serving alcohol. Both brought action against Norfolk alleging that the city impaired their vested rights. The Supreme Court of Virginia, however, affirmed the lower court’s grant of an injunction in favor of the city because the Bar and Café could not claim vested rights under the statute because the land use was impermissible under the zoning ordinance when they opened for business. Additionally, no city official authorized the use of the premises in a manner not otherwise permitted under the zoning ordinance. Therefore, the previous judgment was affirmed.

When the Bar and Café opened for business, they were located in a business park called Waterside. Waterside was situated in the Special Public Interest District (SPI-1), which permitted food services and alcohol sales as long as the establishment obtained a “use permit.” Ordinance 32,160 (1983 Ordinance) granted Waterside’s developer such use permit. In addition to this blanket use permit, the ordinance also allowed for the issuance of sub-use permits, requiring a leasing tenant in Waterside, licensed by the Alcoholic Beverage Control [ABC] Commission, to apply to the City zoning administrator to obtain a sub-use permit to operate its business.

In 1992 the City rezoned it territory, and Waterside was placed in a new D-1 Downtown Waterfront District. Uses here including Eating and Drinking Establishments and Entertainment Establishments required to approval of the City Council. Another ordinance was enacted in 1997 which also created the permitted use, not requiring a special exception, of an “Eating Establishment;” under this definition alcoholic beverages were prohibited from being served. Then in 1998 and 1999 the Bar and Café moved into space in Waterside, describing each operation as an “Eating Place,” a characterization that did not exist under the definitions section of the 1992 ordinance. Both businesses opened in 1999 as “Entertainment Establishments” and served alcohol after obtaining ABC licenses.

Trouble ensued for the Bar and Café when a task force cited the businesses a total of four times for violating their ABC licenses. Because of these instances, the City Council sought to revoke the blanket exception granted in the 1999 Ordinance and require each business in Waterside to seek an individualized exception to operate as an “Entertainment Establishment” or an “Eating and Drinking Establishment.” Bar Norfolk and the Café then each submitted an application for an “Adult Use Special Exception” to operate an “Entertainment Establishment with alcoholic beverages.” While the city planning commission approved the applications, the City manager, after learning of each establishment’s violations, recommended that they be denied. When the City Council voted, it denied the two applications. Refusing to accept the disposition, Bar Norfolk and the Café opened for business the next day, prompting the City to seek an injunction “permanently enjoined from selling or serving alcohol or providing entertainment” in their businesses located in Waterside.

Norfolk 102 and 302 countered by arguing that “because they opened their establishments before the enactment of the 1999 Ordinance, they had vested rights under [the Virginia Zoning laws] that were unaffected by the City Council’s revocation of the special exception contained in the 1999 Ordinance.” When landowners acquire a vested right in the use of their property, such right cannot be prohibited or restricted by subsequent zoning legislation. A landowner’s rights are deemed vested when: “the landowner (i) obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project, (ii) relies in good faith on the significant affirmative governmental act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.” The lower court sided with the City and denied any requested relief by the plaintiffs. The court found that once the 1997 Ordinance was passed, a business seeking to operate as an “Entertainment Establishment” was required to seek a special exception. Because rights only vest in permitted land uses, and since Bar Norfolk nor the Café  were never granted such exception, their use of their premises were impermissible and therefore the vested rights statute did not apply. Additionally, the court also found that no City official ever made a “specific pronouncement” that would be sufficient to entitle the businesses to operate as “Entertainment Establishments” able to serve alcohol. Concededly, city officials acquiesced to the businesses operating as “Entertainment Establishments” and providing alcoholic beverages for on-premises consumption, but this acquiescence did not rise to the requisite level of a specific pronouncement.

The Supreme Court of Virginia affirmed the lower court’s interpretation disallowing any rights to vest due to an impermissible use of the property. When Bar Norfolk and the Café opened their respective businesses, the 1997 Ordinance required a special exception to operate as either an “Eating and Drinking Establishment” or an “Entertainment Establishment” in the D–1 District. Waterside had been granted a blanket special exception, and this in turn applied to the Bar and Café as well. The right to serve alcohol never vested because serving alcohol was never a permissible use of their properties under the 1983 Ordinance.

Plaintiffs alternatively argued that the “Eating Place” designation on their business certificates by the zoning administrator permitted them to operate their businesses as Entertainment Establishments. The court rejected this argument, stating that this designation still did not allow each business to operate in a manner that it illegal under the zoning laws at that time. In other words, the certification documents did not constitute a determination that the plaintiffs could operate as “Entertainment Establishments” and provide alcoholic beverages for on-premises consumption contrary to the terms of either the 1983 or the 1997 Ordinances. For these reasons, Bar Norfolk and the Café did not acquire any vested rights to continue operating their businesses in the same manner as before the revocation of the blanket exception. Therefore the judgment of the lower court was affirmed.

Norfolk 102, LLC v. City of Norfolk, 2013 WL 749401 (2/28/2013)

The opinion can be accessed at: http://www.courts.state.va.us/opinions/opnscvwp/1120634.pdf

In 2006, the Town of Mount Pleasant (“the Town”) rezoned property on Whipple Road adjacent to the Candlewood residential subdivision from an R-1 residential zone to an Economic Development zone.  The property was owned by South Carolina Electric and Gas, and leased to SCANA Communications, which hoped to build a telecommunications tower there.  In an Economic Development district, telecommunications towers like the one at issue in this case are allowed as a conditional use, subject to certain conditions which must be met to the satisfaction of staff in the Town Zoning Administrator’s office, and do not require public notification.

In January 2009, SCANA entered into discussions with the Town about installing a telecom tower at the Whipple Road property, and subsequently applied for a conditional use permit to do so.  The Town Zoning Administrator approved the permit by letter, dated in May 2009, with one condition—the company had to submit a fall zone plan, prepared by a licensed professional engineer and approved by the Town, before it could obtain a building permit for the tower.  The May 2009 letter also stated that SCANA had satisfied all other requirements to build a telecom tower, including the necessary evaluations of health, safety, and aesthetics, as well as proof that it had considered co-location with other towers or location of the tower on a building as possible alternatives.  SCANA did give some public notice of the project by printing an item in a local paper, in order to comply with historic preservation laws, but no comments were received, and all relevant agencies signed off on construction of the tower.

While he was not required to do so, the Town Zoning Administrator contacted nearby property owners in June 2009 to advise them that a permit had been issued for the tower.  In the letter, the Zoning Administrator informed abutting property owners that they had a right to contest the permit issuance by appealing to the Board of Zoning Appeals (BZA).  No one responded to the June 2009 letter.

A building permit issued in October 2009, once SCANA submitted its completed fall zone report and certificate.  Construction of the tower commenced and was completed later that month.  In November 2009, nearby property owners filed an appeal of the permit to the BZA, alleging that the tower was a safety hazard and harmed the aesthetics and character of the neighborhood.  An evidentiary hearing was held by the BZA, at which time additional appellants in this case appeared and voiced their opposition to the tower, but the BZA voted to affirm issuance of the permit for SCANA’s already-constructed tower.  Orders reflecting their affirmation were filed in January 2010.  In February 2010, appellants filed for judicial review.  The Charleston County Court of Common Pleas held a hearing in September 2010, and affirmed the BZA decision in October 2010, finding that appellants had failed to submit evidence that the BZA had made an error of law regarding safety or aesthetics, that appellants were precluded from bringing challenges related to co-location of the tower, that there was evidence on the record supporting the BZA’s permit decision, that at least two of the appellants had standing to bring the claim, that the other appellants’ claims were barred by the doctrine of law of the case, and that those appellants could not maintain the action under the public importance exception to the standing rule.  The appellants appealed again.

 

On appeal, the court was asked to address two major issues: (1) whether the appellants had standing, or whether they could circumvent standing requirements via the public importance exception to standing and (2) whether the BZA erred procedurally or substantively in allowing construction of the telecom tower.

In its standing analysis, the court found that only two of the appellants—those who appealed the permit issuance to the BZA—had standing  to bring the case, while the others had failed to bring a BZA appeal and were thus barred by the doctrine of the law of the case.  The court passed on the question of whether the other appellants would have had standing under the public importance exception, because these appellants had failed to exhaust their remedies during the administrative process.

To the remaining appellants’ challenge that the BZA had erred procedurally and substantively in allowing construction of the tower, the court affirmed findings from the court below, affirming that the BZA had acted on competent evidence that the tower would not pose a threat to health or safety of nearby residents, and  that the tower was located in “an area encompassing diverse property uses” including other overhead utility equipment, making the appellants’ aesthetic claims about the tower’s harm to their property values at least mere speculation, if not totally unfounded.  SCANA had provided sufficient evidence to prove all of the necessary conditions required by local zoning, and the BZA had acted on a sufficiently well-developed record in affirming issuance of the permit.

Finally, SCANA raised a third issue on appeal regarding whether the Town’s notice provisions–which stated that public notice was not required for construction of telecom towers in Economic Development zones–was void as against public policy, because they created “unclear and ambiguous result[s]” which prevented “orderly economic development.”  Principally, SCANA’s complaint was based on the fact that appellants were able to challenge construction of the tower after it had already been built.  The appellants had claimed they should be entitled to challenge the tower permit because they had not received “actual notice” of the Town’s decision to approve the tower, and thus had not been afforded an opportunity to be heard.  SCANA claimed the Town’s notice provisions should be invalidated as against public policy because they created too much uncertainty for developers in these situations.  The court passed on this issue, finding that its dismissal of appellants’ other claims (and its holding that many appellants lacked standing entirely) had essentially mooted the argument.

Bevivino v. Town of Mount Pleasant Board of Zoning Appeals, 2013 WL 441537 (S.C. Ct. of Appls 2/6/13)

The opinion can be accessed at: http://www.judicial.state.sc.us/opinions/HTMLFiles/COA/5080.pdf

In 2005, C.B.L. Realty Trust applied to the Fall River, Mass. Zoning Board of Appeals for a variance to demolish Global Glass structures on its property and subdivide the parcel into 20 residential lots for use as single family homes.  On issuing the variance, the board also gave permission to CBL to demolish the Global Glass structures and stipulated that any rights created by the decision had to be exercised within one year of variance approval.  Before one year had elapsed, the Fall River Planning Board signed off on an “approval not required” plan submitted by CBL showing its proposed subdivision, selling 16 of the lots to E&J Properties, LLC, and retaining four lots for CBL.  CBL subsequently began demolition of Global Glass and E&J Properties began construction on some of the lots.

In January 2009 the Fall River Building Inspector ordered CBL to cease and desist its work, claiming it was proceeding in a manner which did not comply with the variance.  In his notice of violation, the building inspector indicated his understanding of the variance was that the entire Global Glass building would be demolished within the time period set by the variance.  CBL appealed the notice, claiming that the variance’s express terms did not include a deadline for complete demolition of Global Glass.  The Board of Zoning Appeals found for CBL, holding that the transfer of 16 lots to E&J, partial demolition of Global Glass, and commencement of residential construction was enough to constitute “substantial use of rights” created by the variance.  E&J appealed that holding in Mass. Land Court, which upheld the Board’s decision.  On appeal, the Mass. Appeals Court reversed the Board’s decision, and CBL here appeals.

The Mass. Supreme Court held that while the Board had relied upon CBL’s representation that it would demolish the entire Global Glass structure, the variance did not include express terms setting a time limit for the demolition, and CBL was merely required to comply with the Board’s variance within a reasonable but unspecified time period.  Therefore, the Court held that the Board’s decision to overturn the notice of violation was reasonable and that the Land Court’s affirmation of the Board’s ruling in favor of CBL should be upheld.

E&J Properties, LLC v. Medas, 464 Mass. 1018 (Mass. Sup. Ct. 3/19/13)

The opinion can be accessed at: http://masscases.com/cases/sjc/464/464mass1018.html

In 2002, the Parish of Jefferson, Louisiana, passed a parking ordinance which required businesses in the Commercial Parkway Overlay Zone using curbside parking in front of their locations to sign a lease to pay the Parish for use of its parking right-of-way.  From 2002 to 2008, the Parish attempted to get Pauline Books, a small not-for profit religious bookstore, to sign a lease for the Parish-owned parking areas used by the bookstore in the CPO Zone, but Pauline Books refused to sign and to pay the Parish for use of the right-of-way for parking.

In September 2008, the Parish sued Pauline Books to recover $18,816 in lease payments that should have been made to the Parish pursuant to a lease the bookstore was obligated by ordinance to sign between 2003 and 2008.  Pauline Books denied the Parish was entitled to charge the bookstore for its parking use and claimed the CPOZ ordinance was an impermissible land-use regulation imposing a substantial burden on the bookstore’s exercise of religion in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  In September 2009, the Parish sought a judgment declaring that Pauline Books should be ordered to sign a parking lease and Pauline Books moved for summary judgment on the RLUIPA claim.  The Trial Court found that RLUIPA did not apply to the CPOZ ordinance and granted summary judgment in favor of the Parish, holding that Pauline Books would be required to pay future parking lease costs starting in 2008, and barring the Parish’s claim of back-payments for 2002 through 2008.

Pauline Books appealed on the RLUIPA issue claiming the CPOZ ordinance imposed a substantial burden on its religious exercise because it would make use of the commercial space impractical and expensive, and would force the bookstore to either raise its prices or sell less religious goods.  The Parish argued the parking ordinance was facially neutral and did not have any bearing on Pauline Books’ religious exercise, nor did it violate its religious beliefs–the ordinance simply required that the bookstore, along with all other businesses in the zone, pay for Parish-owned parking services it was using.  Additionally, the Parish pointed out that it was prohibited by the Louisiana Constitution from permitting a business to use public property free of charge.

The court held that RLUIPA requires a “substantial burden” be more than a mere inconvenience, but rather something that has an oppressive effect on the practice of religion, or one that amounts to significant coercion of religious adherents to conform to local regulations.  Here, Pauline Books failed to demonstrate a substantial burden on its exercise of religion, but rather simply an inconvenience likely experienced by all other businesses in the area.  Without a substantial burden, the court held that RLUIPA did not apply, and affirmed the lower court’s summary judgment in favor of the Parish.

Parish of Jefferson v. Daughters of St. Paul, Inc., 2013 WL 1287347 (La. Ct. of Appls., 5th Cir., 3/27/13)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=6872913638908856023&hl=en&as_sdt=2&as_vis=1&oi=scholarr

 

Several residents, including named plaintiff Catherine Lakey, owned property abutting a parcel owned by Puget Sound Energy, Inc. (PSE) in the City of Kirkland, Washington. PSE had operated an electrical substation there for over 50 years, and constructed a new substation on the parcel in 2008, with additional transformers to provide redundancy. In order to build the new substation, PSE had obtained a variance from the City because the new substation’s redundancy features made it larger than permitted in the City’s zoning code. The City held a hearing on the variance, taking comments from neighbors before approving the variance. The residents never appealed the City’s decision to affirm the variance. Instead, they filed suit challenging the City’s decision to grant a variance allowing the substation there amounted to an inverse condemnation of their property and sued PSE claiming that electromagnetic fields (EMFs) emanating from the substation constituted a trespass onto their property, and a public and private nuisance, arguing that they reasonably feared injury to their health and interference with the use and enjoyment of their property caused by the EMFs. PSE moved to dismiss, asserting that EMFs have no harmful health effects.

At trial, the court required that the residents submit scientific evidence to support their argument that EMFs were harmful to their health and interfered with their property rights. The residents attempted to use sworn expert statements and scientific studies, evidence which PSE demanded be vetted through a Frye hearing. After applying the standards laid out in Frye v. United States, 293 F. 1013 (1923), the court concluded that the residents’ proposed evidence of the harmful effects of EMF exposure was inadmissible under Frye, as well as under Evidentiary Rule 702. Without any scientific evidence that EMFs are harmful, the court held that the residents could not sustain their trespass or nuisance claims. Further, the court held that the residents’ claim against the City had to be dismissed because the residents had failed to comply with the Washington Land Use Petition Act (LUPA), which required that they submit a timely LUPA petition challenging the City’s variance decision before bringing their inverse condemnation claim. Summary judgment was granted to PSE and the City on their respective issues, and the residents here appeal.

On appeal, the residents challenged both the lower court’s decision to exclude their scientific evidence under Frye, as well as the court’s ultimate decision to grant summary judgment to PSE on the nuisance claims. They further challenged the court’s interpretation of LUPA as barring their inverse condemnation claim, and the trial court’s decision to grant summary judgment to the City on the inverse condemnation claim.

The Washington Supreme Court held that the trial court had improperly excluded the residents’ scientific evidence under Frye, but had properly excluded it under Evidence Rule 702. The two standards are slightly different– Frye applies to novel scientific methodology and requires that the party attempting to admit the testimony prove that “the underlying scientific theory and the techniques, experiments or studies utilizing that theory are generally accepted in the relevant scientific community and capable of producing reliable results,” while the evidentiary rules apply to whether the testimony is based on reliable methodology and requires that the party submitting expert testimony prove that “the witness qualifies as an expert and the testimony will assist the trier of fact”– in other words, that it is not unreliable. Here, the court held that Frye did not apply because the residents’ expert was not proffering a novel methodology, but rather a novel conclusion based on what the lower court had deemed to be an unreliable methodology, implicating Evidentiary Rule 702. Thus, while the court reversed the lower court’s ruling based on Frye, it ultimately upheld exclusion of the evidence under Rule 702.

Washington nuisance law requires that a plaintiff show that the activities in question “annoy, injure, or endanger [their] comfort, repose, health or safety.” This fear of harm need not be scientifically proven, it must merely be reasonable– thus, even though the residents could not get their scientific evidence admitted, a summary judgment motion requires that the court assume the facts as asserted by the plaintiffs. However, even assuming for summary judgment purposes that the residents’ fear of EMF exposure was reasonable, the court held that there was no evidence PSE had used its property in an unreasonable manner sufficient to qualify as a “nuisance.” Because the utility was using its property in a very reasonable, and publicly useful, manner, and because the property had been used as a substation since the 1950s, the court held that PSE’s use of the property as a substation could not be considered a nuisance. Thus, the lower court’s grant of summary judgment to PSE on the nuisance issue was affirmed.

As to the LUPA claim, the court held that the trial court improperly applied LUPA rather than the law of Phillips v. King County, 136 Wash.2d 946 (1998). The residents contended, and the Washington Supreme Court agreed, that the trial court should not have applied LUPA to this case because LUPA, which governs judicial review of land use decisions, contains an exemption for claims for “monetary damages or compensation” such as an inverse condemnation claim. The residents did not seek review of the City’s variance decision; rather, they sought compensation for a taking they claimed resulted from the variance decision, meaning that LUPA did not apply.

However, summary judgment on the inverse condemnation claim was nevertheless properly granted, because of the inverse condemnation rules laid out in Phillips. Under Phillips, a party claiming inverse condemnation must demonstrate “(1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity which had not instituted formal proceedings.” In Phillips, the Washington Supreme Court declined to find an inverse condemnation resulting from a governmental permit approval, holding instead that inverse condemnation claims could be sustained in Washington where a governmental entity “appropriated the land, restricted its use through regulation, or caused damage by constructing a public project to achieve a public purpose, not for permitting decisions.” For that reason, the court declined to find any liability on the part of the City for an inverse condemnation stemming from its grant of a variance. Thus, while the Washington Supreme Court reversed the lower court’s LUPA analysis, it affirmed the lower court’s grant of summary judgment to the City on the inverse condemnation claim under its own Phillips analysis.

Lakey v. Puget Sound Energy, Inc., 2013 WL 865468 (Wash. Sup. Ct. 3/7/13)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=9776533085876243935&hl=en&as_sdt=2&as_vis=1&oi=scholarr

 

Darren and Marlene Thomas, individuals of African American and Puerto Rican descent, respectively, purchased a Hicksville, NY, home in 2007. The home was set up as a two-family home and had been operated as such since 1922, prior to the Town of Oyster Bay’s enactment of a zoning ordinance designating the neighborhood in which the home was located as a single-family zone. After purchasing the home, the Thomases proceeded to rent out the secondary suite. Soon after, the Town’s Zoning Enforcement Inspector warned them to cease and desist using the home as a two-family residence unlawfully. Mr. Thomas protested that the home was listed as a legal two-family residence on the tax rolls and had been used in that manner by other families for decades.

In January 2009, Mr. Thomas was charged criminally with violating the Town zoning code by operating a two-family home in a single-family zone and by operating a two-family home without a proper certificate of occupancy. He filed a motion to dismiss the criminal action in state court, alleging that the action had been selectively commenced against him because of his race, in violation of the Equal Protection Clause of the Federal and State constitutions. Mr. Thomas alleged that the property had been used as a two-family home by several prior Caucasian owners, none of whom had ever been prosecuted, and that there were multiple homes in the same zone being operated as two-family homes by Caucasian owners, without prosecution for those violations either. The motion to dismiss was denied for lack of proof that the Town had engaged in “conscious, intentional discrimination” and the criminal case was still pending in state court.

Meanwhile, Mr. Thomas filed an Article 78 petition requesting a writ of prohibition barring the Town from pursuing the zoning charges on the grounds that the criminal proceeding was racially-based selective enforcement. He then filed a claim in federal court under 42 U.S.C. 1983 and the New York State Constitution, claiming (1) violations of his right to due process, (2) selective enforcement of zoning laws in violation of state and federal equal protection, (3) a New York common law claim of abuse of process, and (4) a New York common law claim of malicious prosecution. Defendants, the Town of Oyster Bay and several Town Officials named in both their official and individual capacities, filed a Rule 12(b)(6) motion to dismiss for failure to state a claim. Mr. Thomas’ Article 78 and 1983 claims were consolidated, and comprise the current action, which also involves the Town’s motion to dismiss.

The District Court held that the doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971) barred the court from granting the relief requested in Mr. Thomas’ 1983 claims, ultimately stripping the federal court of its subject matter jurisdiction and requiring remand to state court. The Younger abstention doctrine states that a federal court must abstain from deciding an issue when “(1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff adequate opportunity for judicial review of the federal constitutional claims.” Here, the court held that since state criminal proceedings were ongoing, since the State has an important interest in regulating land use and zoning, and since Mr. Thomas could have–and indeed had–raised his constitutional claims in the context of the criminal proceedings, Younger required the federal court to abstain from ruling on the petition.

As to the Town’s motion to dismiss, the court granted in part and denied in part. The Town claimed Thomas’ equal protection claims should be dismissed because they were barred by collateral estoppel, because they were barred under the Rooker Feldman doctrine, and because Thomas’ had failed to state a claim for which relief could be granted. The court rejected the collateral estoppel argument, and application of the Rooker Feldman doctrine, and noted that it had obtained advice from the Second Circuit directing it to stay the case pending the outcome of the state criminal prosecution. The court did grant the defendants’ motion to dismiss as against several Town Officials in their individual and official capacities, as well as claims against the municipality made under the doctrine of respondent superior. However, the court declined to grant a motion to dismiss Thomas’ state common law claims, as well as his equal protection claims against certain Town Officials. Those claims were stayed, pending the outcome of Thomas’ criminal prosecution.

Thomas v. Venditto, 2013 WL 653962 (E.D.N.Y. 2/21/13)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=10057257963820260947&hl=en&as_sdt=2&as_vis=1&oi=scholarr

 

Hoping to use three separate structures on a 9-acre lot to build and operate a Hyatt-brand hotel, with a restaurant and banquet facility and a wine shop, AVN Holdings, Inc. applied to the Township of Cranbury Board of Adjustment (“the Board”) for preliminary and final site plan approval, with several exceptions, and a use variance to operate a wine shop in a Highway Commercial zone, where such establishments are not listed as permitted uses.  After the Board conditionally approved the application, RIYA Cranbury Hotel filed suit challenging three issues related to the Board’s decision: (1) approval of an architectural “blade” feature that should have been treated as a sign, (2) approval of the banquet facility without a variance, and (3) approval of the wine shop’s use variance, which RIYA felt was arbitrary, capricious, and unreasonable.

At trial, the court affirmed the Board’s finding that the architectural feature—referred to as “the blade”—was not a sign regulated by local signage ordinances, but merely a feature of the structure which did not require a separate permit or approval.  The trial court further held that the proposed banquet facility was a use accessory to the main restaurant use, and rejected RIYA’s claim that it was a use which required a variance, upholding the Board on that issue.  However, the trial court reversed the Board’s decision to issue AVN Holdings a use variance for the proposed wine shop, finding that the applicant had failed to provide sufficient evidence to meet the “enhanced quality of proof” standard required for variances in New Jersey by Medici v. BPR Co., 107 N.J. 1 (1987). Finally, the trial court raised, sua sponte, an issue with the conduct of the Board’s planner, who appeared to act as an advocate for AVN Holdings, Inc., raising questions about the Board’s impartiality in the judge’s view.  Both parties here appeal.

On appeal, RIYA included a new claim challenging the fairness of seven hearings on the AVN Holdings proposal, based on the trial court’s sua sponte language regarding the Board planner’s conduct.  RIYA claimed that the Board’s proceedings had been “tainted by the appearance of impropriety, bias, prejudice, and prejudgment,” and that the Board’s decisions should be set aside on that basis.  However, since RIYA made this claim for the first time on appeal, the New Jersey Superior Court, Appellate Division, held that it was not properly before them, and could not overcome the “great public interest” requirement for allowing new issues to be presented for the first time on appeal.  RIYA was deemed to have abandoned this objection.

On the matter of the banquet facility, the Board had found it to be a permitted use in a Highway Commercial zone, where restaurants are listed as permitted uses.  The court found no reason to overturn as arbitrary or capricious the Board’s interpretation of its own code to allow a banquet facility as a permitted use subsumed under the code’s term “restaurant,” and thus affirmed the Board’s decision to allow the banquet use.

Regarding the “blade” component of the building, the court also deferred to the Board’s interpretation of its own signage codes in deciding that the blade was not a sign, which would have required several variances, but rather an architectural component of the structure, which required no additional approvals on its own.  The purpose of the blade was, among other things, to house mechanical and electrical equipment; to serve as the hotel’s “brand hallmark,” but not its logo; and to provide an interesting feature to the structure, particularly when it was illuminated at night.  The court acknowledged that the Township’s sign ordinance was very broad, so as to draw within its scope just about anything that might draw attention to a building.  For that reason, and because AVN Holdings could not provide any functional purpose for the blade feature, RIYA had argued that the aesthetic feature was a sign which required sign variances.  However, the court held that “common sense should not be abandoned when interpreting a statute,” and concluded that the Board’s decision to interpret the ordinance not to include this type of architectural feature was “eminently reasonable.”  The Board’s decision not to require sign ordinances for the blade feature was upheld.

Finally, AVN Holdings challenged the trial court’s determination that the Board had acted arbitrarily and capriciously in granting a use variance for the wine shop.  The location in question had previously operated as a restaurant and accessory package liquor store, and had continued operation as a liquor store “without appropriate approvals” after the closure of the restaurant.  AVN Holdings argued that this prior existing nonconforming use entitled it to a variance for a similar wine shop use.  However, the trial court had determined that the mere existence of a nonconforming use at the location did not entitle AVN Holdings to a variance for operation of a different nonconforming use.  In this case, the trial court held and the appellate court affirmed that AVN had failed to meet its burden in proving it was entitled to the variance.  Under the Medici standard, a variance applicant is required to proffer “an enhanced quality of proof” which allows for “clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance,” and that the proof must “reconcile the proposed use with the zoning ordinance’s omission of the use from those permitted in the zoning district.”  The court noted that the Medici standard is a “formidable” but not impossible obstacle for a developer to clear.  Since the Board had failed to discuss the zoning ordinance’s history, the master plan, or the character of the area, such that issuance of a variance could be reconciled with inconsistent local laws, the court held that AVN Holdings had failed to provide the required enhanced quality of proof necessary to obtain the wine shop variance.  Thus, the lower court’s decision to overturn the variance was affirmed.

Riya Cranbury Hotel, LLC v. Zoning Bd. of Adjustment of the Township of Cranbury, 2013 WL 375564 (N.J. Sup. Ct. 2/1/13)

The opinion can be accessed at: http://www.njlawarchive.com/20130201101013470672563/

Stagecoach Trails MHC, LLC (“Stagecoach”) operated a 50-space manufactured home park in Benson, Arizona. In 1998, the City amended its zoning regulations, increasing the size and setback requirements for spaces in a manufactured home park. Although it was not going to be applied retroactively, the City maintained that it would apply the new regulations when individual homes were replaced. Municipal zoning regulations are subject to A.R.S. § 9–462.02(A), which provides that “[n]othing in [such regulations] shall affect existing property or the right to its continued use for the purpose used at the time the … regulation takes effect, nor to any reasonable repairs or alterations in buildings or property used for such existing purpose.” However, the right to continue a nonconforming use does not permit another use inconsistent with zoning regulations.

After one of the spaces in the park became vacant, Stagecoach sought a permit to install another manufactured home there. The permit was denied because the proposed plan would not conform to the new regulations, as required by section 16. Stagecoach appealed to the City’s Board of Adjustment (“BOA”) and argued that the entire park, as a non-conforming use under A.R.S. § 9–462.02(A), was entitled to replace a home without sacrificing its non-conforming status. The BOA rejected this argument and sided with the City, claiming that the particular, vacant space was the non-conforming use, not the park as a whole.

Stagecoach then sought a declaratory judgment with the superior court, asking it to declare section 16 invalid and to direct the zoning administrator to grant the permit. Stagecoach also argued that even if section 16 was valid, the regulation did not apply because the park was a non-conforming use under § 9–462.02(A). While this action was pending, the City repealed section 16 stating that it had not been properly adopted, and considered this situation independent of a section 16 analysis. Even still, the City denied the permit because the new space still would not conform to the setback requirements for the R-3 District. Stagecoach then filed a supplemental special action complaint challenging the denial of the permit on these new grounds and asked to court again to command the zoning administrator to issue the permit. This time the court agreed and ordered the City to issue the permit, characterizing the order as equitable relief in the nature of a mandamus.  Additionally, the court of appeals noted that the BOA had not decided whether the newly vacant space would have been a legal use before the adoption of the amended section 16, and because of this the trial court did not have jurisdiction to adjudicate this issue because this issue had not been administratively exhausted. The appellate court, on appeal, reversed the decision, and Stagecoach appealed to the Supreme Court of Arizona which granted the petition.

The court reiterated the established principle that a party must exhaust all available administrative remedies before appealing to the court. As such, “trial courts generally lack jurisdiction to review challenges to a zoning administrator’s decision that have not been appealed to the board of adjustment.” However, a complainant is not required to exhaust all remedies when the pursuit of administrative remedies is futile. Following this rule, the Supreme Court agreed with the trial court that Stagecoach did not have to appeal to the BOA when the zoning administrator reaffirmed his previous denial of the permit. While Stagecoach and the City differed on many issues, each consistently identified the central issue: whether the park as a whole was the nonconforming use and the vacant space was just a continuation of that nonconformity, or whether each space within the park was a particular nonconforming use.

Stagecoach had not argued that the new home on the vacant space would comply with the R-3 setback requirements, but instead argued that this is irrelevant because the entire park is the nonconforming use and replacing individual homes is a continuation of such nonconforming use and does not alter its nonconforming status. The City, in contrast, argued that the spaces are the nonconforming uses and building a new home there must meet current zoning requirements. However, the City never argued that if the park is in fact the nonconforming use, “replacing an individual home would alter the use and subject the park, and each space, to current zoning regulations.”

The BOA agreed with the City that the individual spaces were the nonconforming uses and therefore each new house had to meet the current zoning regulations. Stagecoach challenged this conclusion in the trial court. Once the City determined that the new amendments to section 16 were invalid, it reaffirmed the denial of a permit on the theory that, because the spaces were the nonconforming uses, the R-3 District requirements such as setbacks apply to the new homes. It would have been futile for Stagecoach to appeal again, because the BOA already rejected its arguments that the vacant space was not subject to these requirements. Therefore, the trial court had jurisdiction over the action because, even though administrative remedies were not fully exhausted, pursuing them would be futile. The case was remanded to the court of appeals to decide whether the entire park or only each space is entitled to nonconforming use status.

Stagecoach Trails MHC, L.L.C. v. City of Benson, 295 P.3d 943, 947 (Ariz. 3/1/2013).

The opinion can be accessed at: http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2013/CV-12-0241-PR.pdf

Parvati Corporation owned a hotel in Oak Forest, Illinois. Parvati sought sell the hotel in order to convert it to a retirement home, likely occupied primarily or exclusively by black people. The City refused to permit the sale, so Parvati sued alleging racial discrimination in zoning and that the City’s zoning ordinance was unconstitutionally vague. The district court granted summary judgment in favor of the City on both charges, and the Seventh Circuit affirmed.

The hotel was located in a Manufacturing zoning district where highway-oriented commercial uses were permitted at the time. The hotel qualified for such a use due to its proximity to a major highway. After the hotel failed, Parvati attempted to sell it as a senior living home or equivalent. In 2004 Parvati signed a contract to sell the hotel to a company affiliated with the Bethlehem Missionary Temple Baptist Church of Harvey (“Church”), Illinois. The court stated that there was a high probability that many of the members of this church, who are black, would seek to be residents of this new retirement home. The sale was contingent upon Parvati being granted a zoning change, however, because the retirement home would not qualify as “highway oriented.” When Parvati and the Church’s reverend met with city officials, the City learned then that the retirement home would house primarily black people.

Two weeks after the meeting, the City’s development department asked the City’s zoning commission to recommend to the City Council that the M zoning classification be replaced by two new classifications – M–1 for light industrial uses and M–2 for heavy industrial uses – to which the Council complied. Neither district supported any residential or highway oriented use, leaving the hotel a non-conforming use though its highway oriented use was grandfathered. The reverend requested that an additional amendment be added to the zoning ordinance to permit the hotel to convert to a retirement home, but the Council denied the application.

Parvati persisted, and entered into a sales contract with another company affiliated with the Church. This company applied to the City for a license to convert the hotel into an “extended stay hotel,” a term that encompasses retirement homes. However, this use was forbidden was the new M-1 and M-2 districts, as well as the predecessor M district. The City Administrator rejected the application on this point and also on the grounds that the hotel was currently a non-conforming use and the zoning ordinance forbade replacing one non-conforming use with another. Following this denial, Parvati’s last hope was to obtain a “special use” permit for the sought-after conversion. In 2007, the City amended the zoning amendment divided the original M district by adding “extended stay hotels” as “special permitted uses” in both the M-1 and M-2 districts. Parvati applied for a special use permit now, but again was denied because “the inclusion of ‘extended stay hotels’ in the list of specially permitted uses had been a scrivener’s error.” Following this, Parvati lost the hotel to foreclosure.

In a suit against the City, Parvati claimed that the City discriminated against them in order to prevent the future establishment of a black retirement home. The primary basis for this claim is irregularities in the rezoning of the district the hotel was located in, though no evidence of racially tinged remarks or actions by City officials was presented. The court conceded that there were numerous irregularities in the zoning process relating to the hotel’s conversion. Such irregularities included, “besides the quick retraction of the authorization for special-use permits for extended-stay hotels in M–2 districts, failing to indicate in the original amendment which former M districts were now M–1 and which M–2 (eventually this omission was repaired and the district in which the hotel is located was designated M–2); omitting from the amended ordinance “Appendix A,” which was supposed to list the land uses permitted in M–1 and M–2 districts; and providing 13 days’ notice of the public hearing on the proposed amendment that created the new districts rather than the 15 days that the City’s zoning ordinance required.” Furthermore, the City provided no explanation as to why the amendment was adopted when it was – that is, two weeks after learning of the Church’s intent to convert the hotel.

However, Parvati offered no evidence demonstrating that these irregularities were more numerous or serious than in other zoning proceedings in the City. Apart from the timing and irregularities, no evidence of racial discrimination was provided. The decision to separate light and heavy industrial uses was not unique, and the court provided examples of other cities doing so, and was therefore not an “obvious pretext” argued by Parvati. Also, part of the reason the conversion was blocked was because the M-2 district where the hotel is located has no sidewalks and considerable truck traffic, making the location not a safe and salubrious environment for the elderly. If permanent residents moved in, amenities such as street lights and sidewalks would likely be demanded, and acquiescence to these demands might chase away industrial business due to the likelihood of accidents and lawsuits for nuisances. Parvati also presented no evidence that a similar facility, serving white clientele, has been permitted to operate in close proximity to the highway and industrial businesses. For these reasons Parvati failed to make a prima facie case of racial discrimination.

Parvati’s second claim was for unconstitutional vagueness when, because of the lack of clear designations of appropriate uses in the 2004 amendment, Parvati did not know which kind of district the hotel was in. as it relates to property rights, vagueness in zoning confuses owners on their rights to their property in that they will not know what uses are permitted. However, Parvati did not seek damages for any confusion over property rights, such as damaged born from delay in obtaining a definitive ruling on its hotel situation. Instead, it sought the difference in value of the building as a hotel and retirement home. The court noted that the classification omission was rectified so there was no longer an issue of vagueness, and such determination notwithstanding, Parvati did not show it suffered any harm as a result of any confusion over property rights.

Parvati Corp. v. City of Oak Forest, 709 F.3d 678, 684-85 (7th Cir.3/1/ 2013)

The opinion can be accessed at: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2013/D03-01/C:12-1954:J:Posner:aut:T:fnOp:N:1092099:S:0