The Applicant applied for a zoning permit to alter the exterior of his house by raising the roofline to match a previously installed roofline, changing the roof and replacing the windows, but the City’s Department of Planning and Zoning denied his application because the building was listed on the Vermont State Register of Historic Places. The City planner however directed the applicant to the Design Advisory Board (DAB) where it was suggested that he redesigned the roofline, but the revised drawings remained unsatisfactory to the DAB. Applicant then appealed to the Development Review Board where the Board upheld the DAB’s decision. The Applicant then met the City twice to attempt to resolve the design issue, but eventually appealed to the environmental division after appealing the City’s denial to the development Review Board. The Environmental division in return denied the applicant’s motion for summary judgment, finding that the application failed to comply with historic preservation standards of the City’s zoning ordinance.

In reply to the City’s summary judgment motion for timely notice, the supreme court of Vermont found that the Environmental Division properly awarded summary judgment to the City because the City planner notified the applicant within five days of receiving his application that the permit could not be issued. Applicant’s claim that the City’s zoning ordinance should not have been admitted to the Environmental Division due to missing documents was also denied by the Court as it found that the Environmental Division did not err by reopening the evidence for a limited purpose of introducing a complete copy of the zoning ordinance. The Court concluded by finding that the Environmental Division’s decision to prevent the changes to the historic building was reasonable, as the focus on the exterior alterations outweighed the concerns of the interior use unless the change in structure changes the intensity of the interior, and the applicant’s concerns for the height issues within the bathroom did not meet this burden.

In re Bjerke Zoning Permit Denial, 93 A. 3d 82 (VT 1/24/2014)

The opinion can be accessed at:

The Bowens (Plaintiffs) designed an accessory building with the help of U.S. Architects. They were issued a building permit and a certificate of occupancy. The Barnettes (Defendants), neighbors, complained to the Carmel Department of Community Services (DCS) about the height of the building. The DCS then notified and advised the Plaintiffs that their building was not in compliance with the Carmel Zoning Ordinance, and advised them to apply for a variance with the Carmel Board of Zoning Appeals (BZA). Plaintiffs then followed instructions and applied for a variance but the request for variance was denied by the BZA. The Plaintiffs continued to operate in their building without appealing either determinations made by the DCS or BZA (The City), and ultimately decided o file a complaint for declaratory relief against the City.

The City and the Defendant in return filed a motion for judgment on the pleadings based on the Plaintiff’s failure to exhaust their administrative remedies, but the trial court found that the City violated the Plaintiffs’ due process rights by revoking their license without giving them the opportunity to be heard, and ordered the City to reissue the certificate of occupancy or provide compensation to the Plaintiffs. The trial court further concluded that U.S. Architects lacked standing to bring an action against the defendants because it had not suffered a denial in the property interest or incur an actual injury.

Defendants in return appealed while The City decided not to file a notice of appeal and Plaintiffs in return claimed that the appeal was moot because the Defendants could not enforce an ordinance on the City’s behalf. The Court however concluded that the appeal was not moot because a party that appeared previously on the record in a lower court proceeding also has the right to appear in appellate proceedings. The court went on to find that the Plaintiffs did in fact fail to exhaust their administrative remedies, and that The City therefore did not violate the Plaintiffs’ due process rights. In Regards to the U.S. Architects contention that the trial court erred in determining that it could not bring a declaratory action judgment, the court found that the trial court’s decision should be affirmed because an injury suffered to U.S Architects would be derivative of that suffered by the Plaintiffs, and because U.S. Architects did not receive advisory opinions or guidance that would effect their designing of future buildings.

Barnette v US Architects, LLP, 2014 WL 3695257 (IN App. Ct. 7/25/2014)

The opinion can be accessed at:

The Moody County Board of Adjustment granted a conditional use permit to allow a concentrated animal feeding operation in Moody County. Shawn Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson petitioned the circuit court for a writ of certiorari challenging the board of adjustment’s decision to grant the conditional use permit. Petitioners argued that the statutory scheme governing appeals to circuit courts from county-level decisions on conditional use permits violated their equal protection rights. The circuit court denied the writ and this appeal ensued.

After finding that the Moody County Board of Adjustment had both appellate and original jurisdiction, the court applied the traditional two-part test for claims that a statute violates equal protection: (1) does the statute create an arbitrary classification among citizens, and (2) “if the classification does not involve a fundamental right or suspect group,” is there a rational relationship “between a legitimate legislative purpose and the classification created”? On the first prong, the court concluded that, “[w]hen applied, the statute [SDCL 11–2–17.3] gives every county in South Dakota the same opportunity to choose which entity they would like to place the conditional use authority in.” Thus, the court found that the Legislature did not create a classification. The court determined that a legitimate legislative purpose existed in the allowance of flexibility to each county on zoning issues and that differing standards of review are rationally related to that purpose. It concluded that the petitioners failed to meet their burden that there is no rational relationship between the legitimate legislative purpose and the classification created and denied their petition for a writ of certiorari.

Tibbs v Moody County Board of Commissioners, 2014 WL 3368044 (SD 7/9/2014)

The opinion can be accessed at:

In March of 2000, Sherman applied to the Planning Board for subdivision approval so that he could use and develop MareBrook. The proposed project would include 385 units of housing as well as “an equestrian facility, baseball field, tennis courts, clubhouse, on-site restaurant and a golf course that wove through the property.” When Sherman completed his purchase of the property in 2001, it was already zoned for residential use. In October 2003, the Planning Board “deemed complete” Sherman’s Draft Environmental Impact Statement (“DEIS”). In 2003, the Town Board approved the first in a series of changes to its zoning regulations. When Sherman learned of the new requirements early the next year, he was assured by the Town Planner that he could meet all its requirements with only “a modest amount of additional work” and that he would soon obtain preliminary approval. Sherman finished revising his plan, but the Town had again amended its zoning regulations. It took him approximately eleven months to once again revise his application, but one month later the Town amended its zoning law for a third time without informing Sherman in advance. Sherman revised his application again, and in February 2006, the Town for the fourth time changed its zoning law without warning Sherman. Sherman responded by submitting yet another revised plan, this one in March 2007. That same month, the Town changed its zoning for the fifth time, and it once again did not let Sherman know these changes were coming. Sherman then filed suit in federal court. The District Court concluded that Sherman had failed to show that seeking a final decision from the Town would be futile, and Sherman timely appealed.

As to the ripeness issue, Sherman conceded that the Town has not reached an official final decision, but argued that he did not need to meet this requirement because seeking a final decision would be futile. The court reasoned that requiring Sherman to persist with this protracted application process to meet the final decision requirement would implicate concerns about disjointed, repetitive, and unfair procedures.

In regards to the takings claim, the court weighed the three Penn Central factors to determine whether the interference with property rises to the level of a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. The first prong was satisfied because the Town’s actions effectively prevented Sherman from making any economic use of his property. The second was also found to be satisfied since when Sherman bought MareBrook, it was already zoned for residential use, and his expectation was that he would begin recouping that investment after a reasonable time to get the Town’s approval on at least some form of development. The final prong was satisfied because the Town’s alleged conduct was unfair, unreasonable, and in bad faith. Thus the court held that Sherman stated a non-categorical takings claim and remanded it to be heard on the merits in District Court.

Sherman v Town of Chester, 752 F3d 554 (2nd Cir. 5/16/2014)

The opinion can be accessed at:

The Teton County Board of County Commissioners and Teton County Planning Director (“Teton County” or “County” or “Planning Director”), issued a Notice to Abate to Roger Seherr–Thoss (“RST”). The County found that RST’s gravel business violated the County’s Land and Development Regulations (“LDRs”) because the business had expanded in volume and footprint since the LDRs were adopted in 1978. Following RST’s appeal to the Teton County Board of County Commissioners (“Board”), a contested case hearing was held and the Board adopted the hearing officer’s Recommended Findings of Fact, Conclusions of Law, and Order with minimal amendments. The Order recognized that RST’s historical gravel crushing and extraction operations were grandfathered under Wyo. Stat. Ann. § 18–5–207. However, the Order attempted to reduce RST’s operation to its 1978 extent. It required RST to reduce his operation’s footprint to three acres, to submit a reclamation plan to the County within sixty days, to post a surety bond consistent with the LDRs within sixty days, to reduce his volume of extracted gravel to 15,000 cubic yards or 17,000 tons per year, and to limit his operating hours to Monday through Friday from 7:00 a.m. to 5:00 p.m. RST appealed the Board’s Order to the Teton County District Court, which affirmed the Board’s decision.

The court analyzed this claim under the doctrine of diminishing assets which sets forth: 1) the land owner must prove that excavation activities were actively being pursued when the Ordinance became effective; 2) the land owner must prove that the area that he desires to excavate was clearly intended to be excavated, as measured by objective manifestations and not by subjective intent; and, 3) the land owner must prove that the continued operations do not, and/or will not, have a substantially different and adverse impact on the neighborhood. The County did not dispute that RST had proved the first prong—that he was actively conducting a gravel operation at the time the County’s LDRs became effective. As to the second prong, the court disagreed with the Board’s finding that because RST did not “cordon off” additional land on his ranch as designated expansion area, he necessarily did not intend to expand. Because the hearing officer and the Board cited no authority for this conclusion nor did they point to some evidence in the record that this is common practice within the gravel extraction industry. RST offered photos and testimony demonstrating its intent to expand, thus the court found the second prong was satisfied. The third prong was also satisfied since under the Wyoming Environmental Quality Act (“EQA”) an interested person can potentially trigger a contested case hearing by objecting to the proposed expansion. Thus, the EQA provides a mechanism for determining whether an expanded gravel operation will have a substantially different and adverse impact on the neighborhood.

Accordingly the court reversed and remanded the district court, holding that RST may expand his gravel operation on the parcel on which it lies to the extent that it complies with the requirements of the EQA and its accompanying regulations.

Seherr-Thoss v Teton County board of County Commissioners, 2014 WL 2921818 (WY 6/25/2014)

The opinion can be accessed at:

Northeast Land Development, LLC (“Northeast Land”), agreed to purchase a parcel of land in the City of Scranton, Pennsylvania and then submitted a subdivision plan to the City for approval. The Planning Commission endorsed the plan, and a resolution was introduced in the City Council to negotiate a Development Agreement with Northeast Land. Before consideration of the resolution, one of the five members of the Scranton City Council (“Individual Defendants”) met with Northeast Land and told it Council would not vote on the Development Agreement until another developer made progress on an adjacent development. The Council tabled the resolution, which prevented Northeast Land from closing.

Subsequently, Northeast Land commenced a 1983 action against the City and the Individual Defendants for violation of its Fourteenth Amendment substantive and procedural due process rights. Northeast Land alleged that Council tabled its resolution because Northeast Land had not met the “outrageous conditions for approval” that were not required by law The District Court dismissed the Individual Defendants from the case, holding that their legislative immunity as Council members shielded them from the claims. Only the procedural due process claim against the City of Scranton survived.

With respect to the remaining claim, the District Court requested briefing as to whether there was a right to procedural due process for legislative action, and if not, whether Council’s decision to table the resolution was legislative action. The District Court held that tabling the resolution constituted legislative action for which Northeast Land did not have a procedural due process right. Northeast Land appealed.

On appeal, Northeast Land raised two arguments. First, citing a United States Court of Appeals, Third Circuit decision, Carver v. Foerster, 102 F.3d 96 (3d Cir.1996), in which the court held that legislative immunity applies only to individually named defendants, Northeast Land claimed the legislative immunity defense was unavailable to the City. The Court stated, however, that this argument was wrong because the District Court never suggested that the City was entitled to legislative immunity. Rather, the District Court dismissed Northeast Land’s claim against the City because procedural due process did not extend to legislative action. Next, Northeast Land contended the District Court erred by holding that the Individual Defendants were entitled to legislative immunity. Specifically, Northeast Land asserted that Council did not take legislative action for immunity purposes by deciding to table the resolution. The court did not need to reach the merits of this argument because, as the individual Defendants argued, Northeast Land’s procedural due process claim against them failed because there was no right to procedural due process for legislative action. Thus, Northeast Land’s claim turned on whether Council’s act was legislative. The court stated that an act is legislative in nature if it is both substantively and procedurally legislative. Acierno v. Cloutier, 40 F.3d 597, 610 (3d Cir.1994). Here, Northeast Land disputed only whether City Council’s decision to table the resolution was substantive legislative action. Specifically, the Council’s role to review proposed developments once the Planning Commission approved them. The court stated that an act was substantive legislative action if it involves either the enactment or amendment of legislation. The enforcement of already existing laws was not legislative action.

The Scranton Development Ordinance enumerated eleven conditions that Council can impose on a development agreement. Northeast Land argued that this ordinance cabined Council’s discretion as it had a purely administrative function of passing the resolution and had no power to review the Planning Commission’s decision or to impose conditions.
However, the court stated that this argument was contradicted by the same ordinance, which stated, “The development agreement shall be acceptable in content to the governing body.” Further, one of the eleven enumerated conditions was a broad catch-all, which authorized “any other lawful terms which the governing body may require to carry out the provisions of this chapter.”

Accordingly, the court agreed with the District Court’s observation that “to hold that the Scranton City Council had only a perfunctory role in the approval process, it would be required to construe the Development Ordinance in a manner that ignored its plain text. The Council’s decision to table the development agreement was quintessentially substantive legislative action.”

Northeast Land Dev., LLC v City of Scranton, 561 Fed Appx 135 (3rd Cir. Ct. App. 3/29/2014)

Attorney Shane was admitted to the practice of law in 1959. The Grievance Committee of New York filed a petition alleging that, in 1986, respondent neglected a client matter and, for approximately 25 years deceived the client regarding the status of that matter. Based on the stipulation, in 1986, attorney Shane agreed to represent a client on a contingent fee basis to recover damages from a municipality on the ground that the municipality had enacted certain zoning regulations that reduced the value of a business owned by the client. The Referee found that, in July 1986, respondent falsely informed the client that papers had been served on the municipality. The Referee further found that, from 1986 through 2012, respondent on falsely stated to the client that respondent was prosecuting the matter, and respondent bolstered those misrepresentations with several false documents, including a purported court order and notice of appeal. Various false reasons for the substantial delay in concluding the purported matter were given. In July 2012, respondent informed the client that respondent had never filed suit.

The Appellate Division confirmed the factual findings and concluded that the attorney violated the following former Disciplinary Rules of the Code of Professional Responsibility and the following Rules of Professional Conduct:
DR 1-102 (a) (4) (22 NYCRR 1200.3 [a] [4]) and rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;
DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) and rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engaging in conduct that is prejudicial to the administration of justice; and
DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) and rule 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engaging in conduct that adversely reflects on his fitness as a lawyer.

Further, prior to April 1, 2009, the attorney violated the following former Disciplinary Rules of the Code of Professional Responsibility:
DR 1-102 (a) (3) (22 NYCRR 1200.3 [a] [3])—engaging in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer;
DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3])—neglecting a legal matter entrusted to him; and
DR 7-101 (a) (2) (22 NYCRR 1200.32 [a] [2])—intentionally failing to carry out a contract of employment entered into with a client for professional services.

In determining an appropriate sanction, the court considered the attorney’s otherwise unblemished record after more than 50 years in the practice of law. Additionally, that the attorney did not commit the misconduct for personal gain or profit, and that the attorney self-reported the misconduct to the client and expressed remorse. Further, there were numerous letters of support by individuals attesting to respondent’s good character and standing in the community. Also, there was no proof that the client suffered a financial loss as a result of respondent’s misconduct. It appeared that the attorney was avoiding advising the client that he believed that the proposed claims against the municipality lacked merit. The attorney also fully cooperated with the Grievance Committee’s investigation. After consideration of all of the factors the court concluded that the attorney should be censured.

In re Shane, 117 AD3d 117 (4 Dept 4/11/2014)

Louis Galzerano (“Galzerano”) was the owner of Bucks County Crematories in Pennsylvania. In response to increased demand for cremation services, Galzerano sought to open a new crematory in Tullytown. He entered into a lease agreement for a commercial building located in a Light Industrial (“LI”) District. Under the Tullytown Borough Zoning Ordinance (“Ordinance”), mortuaries and funeral homes were permitted uses in the LI District. Galzerano applied for a use and occupancy certificate for the property, identifying the proposed commercial use as a crematory. The Ordinance, however, did not include a commercial land use category for a crematory. Therefore, the zoning officer denied the application. Galzerano appealed to the Board. Galzerano testified that the proposed crematory would serve customers from Galzerano’s funeral home in Levittown and other area funeral homes. Further, that the crematory would only accept bodies for cremation from a funeral home and would only release the remains to the funeral home of origin. The Board denied the application finding that a crematory was analogous to an incinerator use, which was permitted only in a Solid Waste District. Further, a crematory was only permitted in the LI District as an accessory use to a funeral home or mortuary. The Board also rejected Galzerano’s claim that a crematory was the same use as a mortuary or funeral home.

The trial court denied the appeal, holding that the proposed crematory did not fall under the commonly accepted definition of a “funeral home,” because its primary purpose would be to perform cremation services for funeral homes. Galzerano then appealed to the Commonwealth Court arguing that the Board erred in denying his application because, under the Ordinance, a crematory was a permitted use. Further, because the Ordinance did not even mention crematories, the Board should have construed the Ordinance in his favor.

The court stated that “A zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference” because, “as the entity charged with administering a zoning ordinance, it possesses knowledge and expertise in interpreting that ordinance.” City of Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1143 (Pa.Cmwlth.2006). The fact that the Ordinance did not provide a definition of “funeral home” did not itself render the Ordinance ambiguous. The Court reasoned that under a commonly accepted definition, a “funeral home” is “an establishment with facilities for the preparation of the dead for burial or cremation, for the viewing of the body, and for funerals.” Applying the definition the court agreed with the trial court that the proposed stand-alone crematory was not a funeral home. Moreover, funeral homes are facilities that provide professional services directly to the families and loved ones of the deceased, and the crematory would not be open to the public. When asked specifically whether a family or loved one could secure the services of the proposed crematory directly, Galzerano testified that they could not. Instead, he said they would have to go through a funeral home, his or other funeral homes to which his proposed crematory would provide services. Therefore, the court found no error by the Board or the trial court in differentiating between a funeral home, which provides professional services to the public on one hand, and a stand-alone crematory that provides cremation services to funeral homes on the other.

Galzerano v Zoning Hearing Bd. of Tullytown Borough, 92 A3d 891 (PA Commwlth 5/30/2014)

The opinion can be accessed at:

A NY Appellate Court reversed the trial court and upheld the revocation, by the Board of Standards and Appeals of the City of New York, of previously granted permits in connection with the renovation of property in Brooklyn. The Court noted that its review is limited to whether the Board’s determination was illegal, arbitrary or an abuse of discretion. Here, the Court noted that the Board properly concluded that the permit was erroneously issued since it required approval of the City Landmark Preservation Commission pursuant to the City Administrative Code and such approval had not been given. Further, the Court noted that the Board found that the construction documents did not comply with the City Zoning Resolution. Therefore, the Board’s revocation was not illegal, not arbitrary and capricious, and not an abuse of discretion, and it had a rational basis. The Court found that the trial court had improperly substituted its own judgment for that of the Board.

Yoran-Wastin v City of New York, 2014 WL 1613126 (NYAD 2 Dept. 4/23/2014).

The Archdiocese of Philadelphia (Archdiocese) filed for a zoning permit with the Philadelphia Department of Licenses and Inspections to allow them to convert an elementary school into 63-unit one-bedroom apartments for low-income senior citizens. The Department denied the request finding that the permit was not in compliance with the Philadelphia Zoning Code, and the Archdiocese appealed to the City of Philadelphia Zoning Board of Adjustment. During the hearing the Archdiocese established that the project would constitute an adaptable reuse of a neighborhood anchor that would have gone vacant. There was one objector to the granting of the permit (Appellee), who claimed that the Archdiocese had not shown hardship unique to the school building, as required for the grant of the variance, but the ZBA decided to grant the permit and concluded that the Archdiocese had established the “overwhelming support” of the surrounding community for the housing project, and also found that the concerns for parking, traffic, trash, and aesthetics would not adversely impact the health, safety and welfare of the surrounding community, as the proposed use would be less burdensome on the community than the previous use as a school. The Objector appealed the ZBA’s decision to the court of common pleas which affirmed the decision, but the Commonwealth Court reversed, finding that the ZBA “improperly found that a unique hardship existed,” and its grant of the variances was not based on substantial evidence.

The Supreme Court of Pennsylvania said that that an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose, and that the Commonwealth Court erred by relying on an improper standard for unnecessary hardship and by substituting its judgment for that of the ZBA, thereby applying an incorrect standard of review. Furthermore, the court found that the Commonwealth Court’s articulation of a functionally obsolete standard for unnecessary hardship was unsupported even under its own cited precedent, and that the ZBA’s decision on every issue raised was within the bounds of reason and therefore represented a sound exercise of discretion.

Marshall v City of Philadelphia, 2014 WL 3579694 (PA 7/21/2014)

The opinion can be accessed at:

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