This post was authored by Matthew Loeser, Esq.

STC Towers, LLC, planned to build telecommunications towers in Ottawa Township and Napoleon Township. Objections to the project arose in Ottawa Township, and the Board of Trustees sent STC written notice that it had to comply with the township’s zoning code. The Zoning Inspector, Nicholas Rettig, objected to STC’s project, and he issued a stop-work order forbidding further construction in Napoleon township. In this case, STC argued that it was entitled to summary judgment on its claims that the townships had no power to insist that STC build the proposed towers in compliance with the townships’ zoning codes. Specifically, STC claimed the Trustees of both townships did not, as O.R.C. § 519.211(B)(4)(a) required, request that their respective Fiscal Officer send a written notice advising STC that it was subject to the zoning code; and neither Fiscal Officer sent such a notice to STC.

The trustees argued that the aforementioned limits on their power to regulate telecommunications towers applied only if the entity building the tower qualified as a “public utility.” While not claiming that it was a public utility, STC emphasized that it “acts as an agent for New Par (dba Verizon Wireless),” which had been classified as a public utility. The company further contended that the statute did not require STC to show that it was a public utility. The court found the Trustees were required to act in accordance with § 519.211 if the telecommunications tower at issue was proposed to be owned or principally used by a public utility engaged in the provision of telecommunications services. Nevertheless, the court held that the Trustees and not STC were not entitled to summary judgment on the “public utility” issue, as STC failed to provide any evidence that would permit a reasonable fact-finder to conclude that New Par was a “public utility” for purposes of § 519.211.

STC and New Par also moved for summary judgment on their claims under the Telecommunications Act. Since STC and New Par failed to establish that the towers were “proposed to be… for the principal use of a public utility,” the court found that the townships were free to regulate the towers without regard to the other provisions of § 519.211(B). Additionally, STC and New Par failed to cite any evidence in the record that would permit a fact-finder to conclude that the townships’ conduct amounted to an effective prohibition of wireless service. Since the companies’ briefs did not address the merits of their claims in any way, the court had no basis to conclude that there was a significant gap in service coverage or that the manner in which STC and New Par proposed to fill the significant gap in service was the least intrusive on the values that the denial sought to serve.

Ottawa Township Board of Trustees, Plaintiff v. New Par, d/b/a Verizon Wireless, 2019 WL 1923331 (ND Ohio 4/30/2019)

This post was authored by Matthew Loeser, Esq.

Glencliff United Methodist Church (“GUMC”) sought to use a part of its property to construct a project called “The Glencliff Urban Village,” which would consist of 22 “micro-homes” for homeless persons; 19 of the homes would be 200 square feet each and 3 would be 400 square feet. In 2016, the Church’s senior pastor and its head trustee sent a letter to the Metro Zoning Administrator requesting a “reasonable accommodation” pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to use the property in that manner. This accommodation would have relieved the project from complying with the regular requirements for property zoned RS 10.

The Zoning Administrator of the Metropolitan Government of Nashville and Davidson County (“Metro”) granted the Church’s request for an accommodation, pursuant to RLUIPA and the Tennessee Religious Freedom Restoration Act (“TRFRA”). Mike Freeman, a member of the Metropolitan Council, appealed the Planning Administrator’s decision to the Metropolitan Board of Zoning Appeals. A lease between the Church and Open Table Nashville, a nonprofit agency that provided outreach services to the homeless and rented office space from the Church, was entered into the record at that hearing. The Board of Zoning Appeals voted to uphold the Zoning Administrator’s grant of an accommodation to the Church. In 2017, Dayle Ward and fourteen other individuals residing near the Church, whose counsel had participated in that hearing before the Board by expressing their opposition to the grant of the accommodation, filed a Petition for Writ of Certiorari in Davidson County Chancery Court. The Chancellor held the Board did not exceed its jurisdiction and affirmed the decision.

On appeal, Petitioners claimed that, since Open Table was an “interfaith” organization and the record did not show that Open Table exercised religion by providing services to the homeless, the church could not “transfer” its religious exercise to a third-party tenant – such as Open Table. The court found that the lease arrangement between Open Table and GUMC did not negate the protection that TRFRA provided to GUMC. The record reflected that the project was undertaken due to a religiously motivated desire to help the homeless, which was a cause that was recognized by the church as part of its core mission. Accordingly, the court found it was appropriate for GUMC to apply for and receive the accommodation allowed by the statutes.

Petitioners next contended that no alleged burden in this case had been shown to be “substantial,” in violation of both RLUIPA and TRFRA. Here, petitioners failed to cite any evidence indicating that the project could be constructed at another church-owned site or that there was a least restrictive alternative. Conversely, requiring the project to comply with the RS 10 zoning regulations would delay the project, and thus delay the response to the urgent need for housing for the homeless. Additionally, any required additional improvements would add to the church’s cost. As such, the record supported the determination that requiring this project to comply with the RS 10 zoning regulations would constitute a substantial burden on the church’s exercise of religion under RLUIPA. Accordingly, the court affirmed the judgment of the Chancellor.

Ward v Metropolitan Government of Nashville and Davidson County, 2019 WL 1753053 (TN App. 4/17/2019)

This post was authored by Matthew Loeser, Esq.

In 1999, the Metropolitan Government of Nashville and Davidson County instituted stormwater regulations that created water quality buffers. Precision Homes, Inc. owned three vacant lots on Miami Avenue along the Cumberland River and entirely within the Zone 1 water quality buffer. Zone 1 was a “no disturb zone” in which the vegetation could not be disturbed, removed or replanted unless a buffer restoration plan had been approved by the Metro Department of Water and Sewerage Services. Additionally, construction was not permitted in Zone 1 without a variance. As such, in 2016, Precision submitted a request for a variance from the stormwater regulations to the Stormwater Management Committee (“SWMC”) so that it could build an 800-square-foot one-bedroom house on each lot. The Metropolitan SWMC denied the request for a variance, and the chancery court affirmed the committee’s denial.

In support of its appeal, Precision pointed to two provisions in the SWM regulations applicable to modifications to the buffer area. Pursuant to Section 6.9.3 of the SWM regulations, “when the application of the buffer area would result in the extreme loss of buildable area, modifications to the width of the buffer area may be allowed through the Stormwater Management Committee appeals process.” Here, the court declined to find this section applicable as Precision had not requested a modification “to the width of the buffer area.” Precision next cited section F1.1.2(1) (l)(ii) of the SWM regulations, which provides that, “where possible, an area equal to the encroached area or equivalent stormwater management practices shall be established elsewhere on the lot or parcel in a way to maximize, or provide equivalent, storm water quality enhancement and protection.” The court did not consider this provision applicable to the present case either, as Precision’s variance request did not involve a modification to the water quality buffer area.

The court next analyzed whether the fact that no construction could occur on these lots without a variance constitute exceptional hardship and/or good and sufficient cause. As to the requirement that denial of the variance would result in “exceptional hardship,” FEMA set forth that hardship that would result from failure to grant a requested variance must be “exceptional, unusual, and specific to the property involved”, and not the personal circumstances of the applicant. Moreover, the unusual physical characteristics must be unique to that property and not be shared by adjacent parcels or be typical of other lots in the community, as was the case here. Accordingly, the judgment of the trial court was affirmed, and the matter was remanded with costs of appeal assessed against the appellant, Precision Homes, Inc.

Precision Homes, Inc. v Metropolitan Government of Nashville and Davidson County, 2019 WL 2395946 (TN App. 6/6/2019)

 

Posted by: Patricia Salkin | June 17, 2019

Regulating Pet Cemeteries

A new article focusing on the hot topic of pet cemeteries and land use in New York can be found here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3399231

“Part I of this article discusses the growth of the pet industry in the United
States, including the increasing interest in pet cemeteries. Part II explores
how New York State, home to the oldest pet cemetery in the country,
regulates the business of pet cemeteries and recent changes to the law addressing the burial of human and pet remains together. Part III examines
how local governments can and do regulate the use of pet cemeteries through
local zoning, citing to current provisions in local zoning ordinances. The
article concludes in Part IV with a call for more local governments to consider how to best provide for permanent resting places for pets through local land use regulation.”

This post was authored by Matthew Loeser, Esq.

The Burlington Town Center Project was a large real estate project that proposed to redevelop the downtown district of the City of Burlington. Appellant Jeffrey Severson cast the only vote against the project, and the City granted zoning approval. While several residents of the City appealed the City’s approval to the Environmental Division of the Superior Court, they settled the appeal with the project’s developer. Severson emailed the Board’s chair and asserted that the meeting had violated the Open Meeting Law because it had occurred behind locked doors. When the Board determined that no Open Meeting Law violation had occurred, Severson filed suit against the Board and the City, seeking declaratory and injunctive relief. The trial court granted the City and the Board’s motion to dismiss, and held that Severson did not allege an injury that was actionable under the Open Meeting Law.

The court found that although it determined that Severson, as a member of the public body that could qualify as “any person aggrieved” entitled to seek enforcement of the Open Meeting Law in the wake of the public body’s refusal to recognize and correct the alleged violation, the trial court did not err when it granted the Board and the City’s motion to dismiss Severson’s suit seeking declaratory and injunctive relief. Here, Severson’s complaint failed to allege injuries that were sufficient to confer standing under the Open Meeting Law because his allegations were of speculative injuries arising from the potential exclusion of unknown members of the public. Furthermore, Severson did not provide any evidence that a member of the public was actually deprived access to the meeting, or was deterred from attending the meeting. Accordingly, the trial court’s determination that Severson lacked standing under the Open Meeting Law was affirmed.

Severson v. City of Burlington, 2019 WL 2399640 (VT 6/7/2019)

This post was authored by Matthew Loeser, Esq.

In 2016, Baltimore City enacted legislation known as “Transform Baltimore,” which was its first comprehensive rezoning plan since 1971. Appellant, Joan Floyd, challenged the legislation under the Open Meetings Act, alleging that the Baltimore City Council and the Land Use and Transportation Committee, had violated the Act with respect to several meetings conducted near the time of the bill’s passage. The Circuit Court for Baltimore City, found no actionable violations of the Act and entered judgment in favor of the appellees.

On appeal, Floyd alleged that she needed the testimony of Committee members Mr. Young and Mr. Reisinger because Ms. Kunst, a staff member, was not competent to testify on matters relating to the Act. In response, the City argued that the court correctly quashed the subpoenas based on the doctrine of legislative privilege, which protected Mr. Young and Mr. Reisinger from having to testify about actions taken in the scope of legitimate legislative activity. The City further claimed that Maryland law did not recognize an Open Meetings Act exception to legislative privilege. The court found that questions specifically related to compliance with the Act would not be protected by legislative privilege and appellant was able to pursue these questions with Ms. Kunst. The court noted, however, that even if a tension between the doctrine of legislative privilege and the requirements of the Act existed, a judicial carve-out of an exception to the application of that doctrine in such cases would be inappropriate.

With regard to the Committee’s meeting of October 20, 2016, appellant argued that the Act was violated because the minutes “failed to reflect all but one of the votes taken at the meeting.” Floyd contended that although the Committee considered “hundreds of amendments” and “took over forty roll call votes and three voice votes” at that meeting, the official minutes reflected only one vote. The City described the votes referred to by appellant as “straw votes” used by the Committee to organize its final report on Bill 12-0152 to the Council. The court found the minutes of the meeting reflected the Committee’s action on that bill. As such, the circuit court’s holding that the minutes at issue met the statutory requirements was upheld.

Lastly, Floyd argued that the Council’s “luncheon meeting” on October 24, 2016 violated both the notice and minutes requirements of the Act. Here, the record reflected that the purported notice did not comply with the requirements of the Act, and it was undisputed that no minutes were kept or posted for the luncheon meeting at issue. Appellant, who did not attend the luncheon, failed to provide any evidence that Bill 12-0152 was discussed. Moreover, Ms. Kunst testified that she was at the October 24 luncheon and that “there was not any discussion of Transform Baltimore.”  Accordingly, the court held that the violations related to the luncheon did not rise to the level of a willful violation that would permit voiding the legislation.

Floyd v. Baltimore City Council, 2019 WL 2353541 (MD Spec. App. 6/4/2019)

This post was authored by Matthew Loeser, Esq.

Pierson Construction was awarded a contract by the Pennsylvania Turnpike Commission to widen and improve part of the Pennsylvania Turnpike. Pierson Materials, an affiliated entity of Pierson Construction, leased the Rockhill Quarry in East Rockhill Township. When Pierson informed the Township of its plans to lease the quarry for the Turnpike Project and its specific plans to produce asphalt, numerous local residents attended a meeting of the Township Board of Supervisors and expressed opposition to the proposed increase in quarrying operations. After a bench trial, the court enjoined the Township from interfering with operation of the quarry under the Declaratory Judgment Act, finding that exclusive jurisdiction to regulate quarry operations with resided the Department of Environmental Protection (“DEP”). This case involved the counterclaims of Pierson and Hanson Aggregates Pennsylvania, LLC (“Hanson”), which owned the property that contained the Rockhill Quarry.

Hanson and Pierson first claimed that the Township’s efforts to regulate the quarry and asphalt plant violated Hanson and Pierson’s Fourteenth Amendment substantive due process rights. The court declined to find that the Township officials’ actions were unrelated legitimate government goal, as responding to citizen concerns about maintaining current land use in the face of proposed changes fell well within the realm of legitimate government goals. Even if it was found that Township officials violated state law, the court found this claim would fall far short of conduct that shocks the conscience. Additionally, the counterclaim failed to demonstrate that the Township believed it was totally without power to take steps to limit an increase in operations or restrict installation of an asphalt plant, and further failed to show that the Township took such action for personal gain, out of bias, or with other corrupt motives. Accordingly, the substantive due process claim was dismissed for failure to state a claim.

Pierson next alleged that Township officials Volovnik, Nyman, Nietupski, and Morano tortiously interfered with its contractual relations. While Defendants contended that Pierson failed to show they acted without privilege or justification, Pierson claimed that the Township officials’ actions were nonetheless improper and not privileged since the officials were aware that their authority was preempted. Despite this, the court found no evidence that Volovnik, Nyman, Nietupski, or Morano believed the Township to be entirely without power to address the concerns of residents. Due to the fact that the quarry had been dormant for approximately 30 years, and that the character of the surrounding area had changed, the court held that it was proper for Township officials to “explore the limits of their regulatory authority”. The court further determined that the Township officials here had a strong interest in advocating for the community’s well-being and giving voice to local residents’ views on land use policy. Thus, absent clear allegations that the officials knew their decisions were totally without any colorable legal foundation, or that they acted with corrupt motives, the court found that their efforts to regulate the reactivation of the quarry were privileged and justified.

East Rockhill Township v. Richard E. Pierson Materials Corp., 2019 WL 2357589 (ED PA 6/4/2019)

This post was authored by Matthew Loeser, Esq.

Landowner Siya Real Estate LLC owned property located in a medium high density residential district and traditional neighborhood development overlay (“TNDO”) district, which was primarily residential. Siva filed an application for a special exception, which sought to convert the first floor of the property to a retail grocery store and deli. The proposed hours of operation were Monday through Friday from 7:00 a.m. to 8:00 p.m. and Saturday and Sunday from 8:00 a.m. to 8:00 p.m. Approximately 100-150 customers per day would be expected at the Subject Premises. The Board found that Siva met most of the applicable requirements for a special exception except for one – the “total impact provision” found in Subsection (a)(3) of Section 1314.02.C.4 of the Zoning Ordinance – and denied the application on that basis. Siva appealed to the trial court, which affirmed.

On appeal, Siva contended that Subsection (a)(3) set forth a nonspecific, subjective standard. Siva further argued that the phrase “impact upon the neighborhood” was not a defined standard and that it involved the evaluation of many characteristics incapable of objective measurement. The court found that the “total impact upon the neighborhood” was not a defined standard and could involve the evaluation of many characteristics that were not specifically enumerated. Additionally, the language of the subsection implied that the Board was to use its discretion to “weigh and evaluate the total impact on a subjective basis” in conjunction with other requirements. The court also noted that objectors bore the evidence presentation duty on general detrimental effects, and the ordinance could not shift this duty.

Lastly, the court found objectors’ remaining testimony was speculative and did not constitute competent evidence that would be sufficient to carry objectors’ heavy burden. Accordingly, the court reversed the trial court’s order affirming the Board’s decision, and remanded the matter to the trial court to remand to the Board with instructions to grant Siva’s application for a special exception, subject to the Board imposing conditions.

Siya Real Estate LLC v. Allentown City Zoning Hearing Board, 2019 WL 2306303 (PA Commwlth 5/31/2019)

This post was authored by Matthew Loeser, Esq.

Petitioners, the City of Rye, Joseph A. Sack, and Richard Mecca, commenced this proceeding pursuant to CPLR article 78 to review a determination of the Westchester County Board of Legislators, which adopted a negative declaration under the State Environmental Quality Review Act (“SEQRA”). The SEQRA determination related to several proposed development projects at Playland Park, an amusement park located in the City of Rye, and owned by the County of Westchester. The Supreme Court denied the petition and dismissed the proceeding, holding that the petitioners lacked standing. The petitioners appealed.

The court found that the trial court properly employed the “balancing of public interests” test enunciated by the Court of Appeals, and determined that the subject development projects were immune from local zoning and land use laws. Specifically, the court determined that the City of Rye did not have standing to maintain this proceeding based on its status as an “involved agency” Additionally, the petitioners failed to demonstrate that the City of Rye had standing based on any demonstrated interest in the potential environmental impacts of the development projects on the City of Rye’s community character. With respect to the individual petitioners, the court agreed with the Supreme Court’s determination that Mecca failed to demonstrate his entitlement to a presumption of standing based on the proximity of his home to the development projects, and that neither Mecca nor Sack demonstrated their entitlement to standing by showing an injury-in-fact that fell within the zone of interests protected by SEQRA.

City of Rye v. Westchester County Board of Legislators, 169 A.D.3d 905 (2019)

 

This post was authored by Matthew Loeser, Esq.

Petitioner Cobleskill Stone Products, Inc. operated a quarry in the Town of Schoharie, which had been in operation since the 1890s. Pursuant to respondent Town of Schoharie’s 1975 zoning ordinance, “commercial excavation or mining” was a permitted use upon receipt of a special permit from the Town. In 2000, while the 1975 ordinance was in effect, petitioner purchased an additional parcel of real property to the south of the areas that it was actively mining. Petitioner then sought to amend its Department of Environmental Conservation (“DEC”) mining permit in January 2005 to include the southern property and other adjacent property that it owned which remained unmined and unpermitted. During the pendency of that application, the Town enacted a new zoning ordinance, Local Law No. 2 of the Town of Schoharie, which, prohibited mining where the southern property was located. Petitioner then commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking a judgment declaring that it had a vested right to quarry as a preexisting nonconforming use under Local Law No. 2 and any subsequently enacted prohibitory zoning amendment.

While an appeal was pending, the Supreme Court adjudged Local Law No. 2 to be null and void for noncompliance with certain procedural requirements of the State Environmental Quality Review Act. As such, the 1975 ordinance was revived. Although petitioner applied for a special permit pursuant to the 1975 ordinance following this, the Town enacted a moratorium on special permits for mining, effective May 2014. In December 2015, the Town enacted Local Law No. 3 of the Town of Schoharie, which again rezoned significant portions of petitioner’s property and prohibited commercial mining and excavation. As the case neared trial, respondents made a motion in limine to exclude from trial any evidence relating to efforts undertaken or expenses incurred by petitioner after the date that the Town adopted Local Law No. 2 in 2005. The Supreme Court  granted respondents’ motion in full, and petitioner appealed.

On appeal, petitioner argued that after the annulment of Local Law No. 2, the 1975 zoning ordinance was restored and it was not until the Town’s 2015 adoption of Local Law No. 3 that petitioner’s use became nonconforming for the purpose of its vested rights claim. The court found since an annulled law can have no lingering effect, petitioner was entitled to have its nonconforming use rights evaluated as of the effective date of the 2015 ordinance, unless that ordinance was also annulled prior to any such determination. The court further noted that establishing a property right based upon a prior nonconforming use was not a question of equity but rather involved a limited inquiry of whether a party indeed used or intended to use its real property for the nonconforming purpose at the time that the subject restrictive zoning ordinance became effective. Accordingly, the court reversed the part of the order that granted respondents’ motion.

Cobleskill Stone Products, Inc. v. Town of Schoharie, 169 A.D.3d 1182 (3 Dept. 2019)

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