This post was authored by Matthew Loeser, Esq.

Petitioner submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the Town of Riverhead. The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending the Town Board adopted the Comprehensive Plan on November 3, 2003, which eliminated certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner commenced a hybrid proceeding challenging the Town Board’s adoption of Local Law No. 12, which amended the Town’s zoning code to implement the transfer of development rights component of the Comprehensive Plan (“TDR”). The TDR law designated the property subject to the petitioner’s site plan application as a sending district, meaning that it was an area of land from which development rights were to be transferred to receiving districts. The Supreme Court of New York held that the zoning resolutions at issue were legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The court further held that there were triable issues of fact with respect to the applicability of special facts.

Here, the Town Board adopted a resolution on January 19, 2005, in which it directed the Town Clerk to publish a copy of the final draft of the TDR law and notice of a hearing to be held ten days later regarding the proposal. Around that time, the Town Board attempted to refer the proposed TDR law to the Suffolk County Planning Commission in accordance with General Municipal Law § 239–m. The Planning Commission, responded by letter dated February 9, 2005, in which it explained that the proposed TDR law would “not be reviewed until the following information is submitted through the offices of the municipal referring agency. Complete revised text of proposed TDR amendment.” As there was no evidence in the record contradicting the Planning Commission’s statement that it never received the text of the proposed TDR law, the court found the Town Board failed to refer a “full statement” of its proposed TDR law in accordance with General Municipal Law § 239–m.

Next, while the respondents argued that the referral of prior drafts of the TDR law obviated the need for a new referral under General Municipal Law § 239–m, the TDR law as enacted contained substantial modifications that warranted a new referral. Moreover, the Town Board itself declared in the January 19, 2005, resolution that the draft contained “significant modifications to the proposed local law.” The court therefore found the Town Board’s failure to comply with the referral requirements constituted a “jurisdictional defect.” Accordingly, the Town Board’s adoption of the resolution enacting the TDR law was found to be void and unenforceable.

Calverton v Town of Riverhead, 2018 WL 1833202 (NYAD 2 Dept. 4/18/18)

 

Posted by: Patricia Salkin | April 21, 2018

NY Appellate Court Upholds Adoption of Town’s Comprehensive Plan

This post was authored by Matthew Loeser. Esq.

Petitioner submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the Town of Riverhead. The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending the Town Board adopted the Comprehensive Plan on November 3, 2003, which eliminated certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner commenced a hybrid proceeding challenging the Town Board’s adoption the Comprehensive Plan, which affected part of the property subject to the petitioner’s site plan application. The Supreme Court of New York held that the Comprehensive Plan was a legal, constitutional, and valid exercise of the police and zoning powers of the Town Board.

The record reflected that following the Town Board’s referral to the Planning Commission, the Planning Commission processed the referral, held a hearing, voted, and reported its recommendations to the Town Board. There was no evidence in the record that the Planning Commission determined the Town Board’s referral was deficient in any respect. Therefore, the court found the Town Board made a “full statement” of its proposed Comprehensive Plan in accordance with General Municipal Law § 239–m. Moreover, the revisions made to the Comprehensive Plan after referral were “ ‘embraced within the original referral’ ” Thus, contrary to the petitioner’s contention, the court found the Town Board made a proper referral of the Comprehensive Plan to the Suffolk County Planning Commission.

The court analyzed whether the Town Board complied with the procedural and substantive requirements of SEQRA in adopting the Comprehensive Plan. Here, the Town Board did not improperly segment environmental review by adopting the Comprehensive Plan separately from the zoning amendments implementing it. The draft and final generic environmental impact statements (hereinafter the draft and final GEISs) explicitly analyzed the expected cumulative impacts of the Town Board enacting zoning amendments consistent with the proposals in the Comprehensive Plan. Furthermore, the draft and final GEISs discussed mitigation measures, reasonable alternatives to the proposed action, and specific conditions under which future actions will be undertaken or approved in the appropriate level of detail. As such, the court determined that the Town Board complied with the substantive requirements of SEQRA.

The court also found that the Supreme Court properly determined that the respondents were entitled to a judgment declaring that the Comprehensive Plan was a constitutional and valid exercise of the Town Board’s police powers. Here, the stated purpose of the Comprehensive Plan’s proposed designation of the undeveloped land as an agricultural protected zone had a rational relationship to numerous legitimate purposes, including, but not limited to, the preservation and promotion of agriculture, the preservation of “agricultural integrity”, and preservation of the Town’s rural aesthetics and character. Accordingly, the petitioner’s contention that the Comprehensive Plan’s goal of promoting agriculture exceeded the Town Board’s zoning powers is meritless

Calverton v Town of Riverhead, 2018 WL 1833207 (NYAD 2 Dept. 4/18/18)

This post was authored by Matthew Loeser, Esq.

Petitioner submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the Town of Riverhead. The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending the Town Board adopted the Comprehensive Plan on November 3, 2003, which eliminated certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner commenced a hybrid proceeding challenging the Town Board’s adoption of zoning amendments implementing the Rural Corridor (“RLC”) component of the Comprehensive Plan, which affected part of the property subject to the petitioner’s site plan application. The Supreme Court of New York held that the zoning resolutions at issue were legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The court further held that there were triable issues of fact with respect to the applicability of special facts.

The record reflected that following the Town Board’s referral to the Planning Commission, the Planning Commission processed the referral, held a hearing, voted, and reported its recommendations to the Town Board. There was no evidence in the record that the Planning Commission determined the Town Board’s referral was deficient in any respect. Therefore, the court found the Town Board made a “full statement” of its proposed RLC law in accordance with General Municipal Law § 239–m. Moreover, the revisions made to the RLC law after referral were “ ‘embraced within the original referral’ ” Thus, contrary to the petitioner’s contention, the court found the Town Board made a proper referral of the RLC law to the Suffolk County Planning Commission.

The court analyzed whether the Town Board complied with the procedural and substantive requirements of SEQRA in adopting the RLC law. Here, the Town Board accepted a draft and a final generic EIS in connection with the Comprehensive Plan. The RLC law faithfully implemented the agricultural components of the Comprehensive Plan and thereby satisfied the conditions and thresholds for future actions set forth in the draft and final generic EISs. The Town Board’s reliance on the generic EISs prepared in connection with the Comprehensive Plan therefore satisfied the procedural and substantive requirements of SEQRA.

The court also found that the Supreme Court properly determined that the respondents were entitled to a judgment declaring that the RLC law was a constitutional and valid exercise of the Town Board’s police powers. Here, the stated purpose of the RLC law was “to allow a very limited range of roadside shops and services that are compatible with the agricultural and rural setting along major arterial roads. Thus, contrary to the petitioner’s arguments, the RLC law’s designation of property along New York State Route 25 a few miles west of Riverhead as a rural corridor zone had a rational relationship to its stated objective.

Lastly, the court noted that while the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. Here, there was evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules. Conversely, there was evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, which would have indicated that the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith. As such, the court held that the triable issues of fact existed as to the applicability of special facts.

Calverton v Town of Riverhead, 2018 WL 1833202 (NYAD 2 Dept. 4/18/18)

Posted by: Patricia Salkin | April 19, 2018

MS Supreme Court Finds Evidence of Illegal Spot Zoning

This post was authored by Matthew Loeser, Esq.

The City of Ridgeland adopted an amendment to the zoning ordinance, which created as a permitted use a Large Master Planned Commercial Development (“LMPCD”). LMPCD allowed uses previously prohibited in C–2 districts, including the potential location of a Costco Wholesale. Appellants, residents of the City who lived in nearby neighborhoods, appealed the City’s decision, arguing that the amendments constituted illegal rezoning and/or spot zoning. the circuit court affirmed the zoning amendments. Because the applicant’s site plan needed to be approved by the City before any land may be defined as a LMPCD, the trial court found that no rezoning had occurred.

On appeal, the Appellants claimed the City’s decision to amend the zoning ordinance materially altered the uses previously allowed in C–2 districts, and could therefore only be valid upon a showing of substantial change in neighborhood character. The City argued that the amendments were purely textual, and that the addition of a Costco with a service station and drive-through restaurants did not effectively rezone the proposed area. The court found that without the amendments, no opportunity existed to submit a site plan for the additional uses the Costco development required; following the amendments, however, the Mayor and Board of Aldermen had complete authority over whether or not to allow any or all of those sites to become LMPCDs. since the proposed site was in close proximity to residential neighborhoods, allowing the site effectively to be rezoned to a C–3 district was in direct conflict with the goal of zoning regulations listed in Section 17–1–9 – to lessen street congestion and prevent overcrowding of land. Moreover, almost immediately after adopting a new comprehensive zoning ordinance and map in 2014, the City sought to change the zoning of the proposed Costco site to allow numerous prohibited uses. because those additional uses effectively transformed the proposed Costco site from a C–2 district to a C–3 district, the court found that the City illegally rezoned the property at issue.

The Appellants next contended that the zoning amendments constituted spot-zoning. Here, the proposed amendments were created and were focused solely on Costco and its activities. City officials worked closely together with Costco representatives to shape the ordinance to fit Costco’s needs. Furthermore, only after Costco choose the site at issue did the City attempt to rezone the proposed location and add C–3 uses into a C–2 zone. Since, the City engaged in illegal spot-zoning by singling out a parcel of land for special and privileged treatment, the court found that the zoning amendments are arbitrary, capricious, and unsupported by substantial evidence.

The City last argued that the Appellants lacked standing to challenge the amendment, and failed to prove that any of the additional convenience uses were inconvenient to them personally in a way not common to the public generally. Here, the Appellants were property owners in the City of Ridgeland, whose properties are located near the proposed Costco site. The Appellants argued that the Costco development would adversely impact them as well as other Ridgeland residents since the Costco development was not a minor variance and would greatly increase traffic, as well as change the aesthetics of the area. Accordingly, the court held that the Appellants had standing to appeal the zoning amendments. As such, the court reversed the decision of the circuit court and entered judgment for the Appellants.

Beard v City of Ridgeland, 2018 WL869589 (MS 4/19/2018)

This post was authored by Matthew Loeser, Esq.

Petitioner submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the Town of Riverhead. The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending the Town Board adopted a Comprehensive Plan on November 3, 2003, which eliminated certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner commenced a hybrid proceeding challenging the Town Board’s adoption of zoning amendments implementing the Agricultural Protection Zone component of the Comprehensive Plan, which affected part of the property subject to the petitioner’s site plan application. The Supreme Court of New York held that the zoning resolutions at issue were legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The court further held that there were triable issues of fact with respect to the applicability of special facts.

The record reflected that following the Town Board’s referral to the Planning Commission, the Planning Commission processed the referral, held a hearing, voted, and reported its recommendations to the Town Board. There was no evidence in the record that the Planning Commission determined the Town Board’s referral was deficient in any respect. Therefore, the court found the Town Board made a “full statement” of its proposed APZ law in accordance with General Municipal Law § 239–m. Moreover, the revisions made to the APZ law after referral were “ ‘embraced within the original referral’ ” Thus, contrary to the petitioner’s contention, the court found the Town Board made a proper referral of the APZ law to the Suffolk County Planning Commission.

The court analyzed whether the Town Board complied with the procedural and substantive requirements of SEQRA in adopting the APZ law. Here, the Town Board accepted a draft and a final generic EIS in connection with the Comprehensive Plan. The APZ law faithfully implemented the agricultural components of the Comprehensive Plan and thereby satisfied the conditions and thresholds for future actions set forth in the draft and final generic EISs. The Town Board’s reliance on the generic EISs prepared in connection with the Comprehensive Plan therefore satisfied the procedural and substantive requirements of SEQRA.

Lastly, the court noted that while the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. Here, there was evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules. Conversely, there was evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, which would have indicated that the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith. As such, the court held that the triable issues of fact existed as to the applicability of special facts.

Calverton v Town of Riverhead, 2018 WL 1833206 (NYAD 2 Dept. 4/18/18)

This post was authored by Amy Lavine, Esq.

The Supreme Court of Iowa held in March that a mobile home park did not exceed its legal nonconforming use, nor was it necessary to enjoin the continued use of the mobile home park for the safety of life of property. The mobile home park retained essentially the same character that it had when it was established, the court concluded, and it was not impermissibly expanded merely because some of the mobile homes had been improved with porches and patios. And with respect to the city’s determination that the mobile home park constituted a safety hazard, the court found that the city’s evidence was generalized in nature and failed to establish that any safety problems on the actual property at issue. City of Des Moines v Ogden, 2018 WL 1357471 (IA 3/16/2018).

Ogden operated a nonconforming mobile home park in Des Moines. The property had been used as a tourist camp starting in 1941 and then transitioned from that use to become a mobile home park sometime between 1947 and 1955. Under the zoning ordinances in effect at the time, a portion of the property was located in a residential district, which did not permit mobile home uses, and to resolve this noncompliance the owner at the time applied for and was granted a certificate of use in 1955 that permitted the mobile home park to continue as a nonconforming use. Aerial photographs of the property were taken in 1963 and were also submitted into evidence to establish the extent of the pre-existing use; they showed 39 concrete pads with mobile homes, some of which had attached structures, while more recent photographs documented a more congested space with many more attachments and additions, such as porches, decks, and patios.

Aside from a violation of the prior owner in 2003, who had attempted to expand an adjacent auto dealership onto the property, the mobile home park received no zoning violations until 2014, when a zoning administrator informed Ogden that the property had numerous zoning defects. The alleged violations were determined under the zoning as it had existed in 1955 and they included violations relating to the requirements for setbacks, lot area, driveways, walkways, and additions, among other things. Based on these purported zoning problems, the city filed a petition in equity seeking an injunction ordering Ogden to cease use of the property as a mobile home park.

The district court agreed with the city and found that discontinuance of the mobile home park was necessary “for the safety of life or property.” Relying heavily on the photographic evidence, the district court concluded that “Now much of the open space visible in the 1963 photos is filled with the detritus of life: vehicles, outdoor recreational equipment, garbage pins, makeshift gardens, fencing, and crudely constructed additions to the mobile homes.” The district court also found insufficient evidence of fire prevention equipment and noted that the property had become so  “congested and cluttered” as to impede the ability of first responders to adequately respond to emergency situations. Alternatively, the district court also concluded that the use of the property had “intensified beyond acceptable limitations” and thus it had lost its status as a legal nonconforming use. Ogden appealed, and a divided court of appeals affirmed.

On appeal to the Iowa Supreme Court, the court first held that the evidence was insufficient to show that discontinuance of the mobile home park was necessary for the safety of life or property. “Remarkably,” the court noted, “the record is largely bereft of evidence demonstrating the existence of a significant safety issue.” Indeed, although the fire marshall had testified about the fire hazards created by mobile homes, his testimony was only general in nature and he acknowledged that Ogden’s property had never actually been cited for any fire code violations, nor had the fire department even inspected the individual mobile homes on the property. The court also emphasized that Ogden had no zoning violations prior to 2014, yet the city  didn’t even attempt to use other less severe enforcement mechanisms before seeking an injunction to shut down the mobile home park down entirely.

With respect to the nonconforming use issue, the court explained that it employed a burden-shifting analysis:

First, the zoning entity has the burden of proving the existence of a current zoning violation. If the zoning entity meets its burden, the burden shifts to the property owner “to establish the lawful and continued existence of the use” by a preponderance of the evidence. The burden then shifts back to the zoning entity to establish “a violation of the ordinance by exceeding the established nonconforming use” if the property owner establishes a lawful preexisting use.

Applying this test to the mobile home park, the court first had to determine whether the property use had changed so substantially as to have lost its status as a legal nonconforming use. This was an issue of first impression for the court, as it had not previously considered whether the addition of structures or the expansion of homes within a mobile home park amounts to an illegal expansion. The court’s determination depended primarily on whether the city could meet its burden in proving that the zoning violations exceeded the nonconformity established as of 1955, when the certificate of occupancy was granted. The city and the lower courts found evidence that the nonconforming use had been extended based on the fact that use of the mobile home park had intensified relative to the numbers and location of structures attached to the mobile homes, such as porches and patios. But the Iowa Supreme Court did not agree with this analysis, noting that “intensification of a nonconforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used.” As the court pointed out, the city failed to present any evidence demonstrating that the zoning violations had been expanded such that they were “substantially or entirely different from the original use,” and the city acknowledged that mobile home park as a whole had not changed in size or form, as the number and location of mobile homes essentially the same as in the photographs of the property from 1963. Moreover, the court found that additions to structures within the mobile home park had not substantially changed the nature and character of the property’s use as a mobile home park; “Rather, this steady increase in the additions to the mobile home structures and other objects found on the property represents a marginal change… that the law affords to property owners in their nonconforming use.”

Accordingly, the court concluded that the city failed to prove that the nature or character of the mobile home park was so substantially changed or intensified as to warrant the discontinuation of its legal nonconforming use as a mobile home park. The decision of the court of appeals was reversed.

City of Des Moines v Ogden, 2018 WL 1357471 (IA 3/16/2018).

 

This post was authored by Matthew Loeser, Esq.

Petitioner Andrew Bovee owned property in the Town of Hadley adjacent to property owned by his parents. Bovee regularly processed, stored and sold firewood on his property, and applied for site plan development approval to conduct additional business activities there. The Planning Board approved the application upon the understanding that Bovee would store 7 to 10 cords of firewood on the property. Following enforcement proceedings commenced due to the excessive amount and disruptive location of firewood on Bovee’s property, Bovee and his parents separately applied for site plan approval pursuant to the Site Plan Review Law. The Planning Board conditionally approved these applications. Bovee and his parents separately commenced the present combined proceedings and declaratory judgment actions challenging the conditional approvals and to seeking a judgment annulling them on the basis that the Planning Board lacked the authority to issue them. The lower court granted the petitions and annulled the challenged determinations, and the respondents appealed.
At the outset, the court noted that there was no statutory directive that a municipality employ both zoning and site plan review as mechanisms of land-use control. While the Town of Hadley did not have a “zoning ordinance,” its Town Board adopted the Site Plan Review Law, a “local law” that authorized the Planning Board “to review and approve, approve with modifications or disapprove site plans”. This Site Plan Review Law set forth the details required on a site plan review application, the goals of the Town comprehensive plan, and specified the factors that the Planning Board should consider in reviewing a site plan application. Thus, the Site Plan Review Law was found valid, and the Planning Board therefore had authority to determine the site plan review applications at issue.
The Supreme Court, in light of its erroneous conclusion that the Site Plan Review Law was invalid, did not reach the challenges of Bovee and his parents to the conditional approvals themselves. Here, the record reflected that the Planning Board imposed a number of conditions in approving the applications, including requirements that fencing be installed, limitations on firewood storage and restrictions on where and when firewood could be processed and sold by Bovee. The court found that these conditions, which were directly responsive to the complaints of neighbors regarding Bovee’s business operations, were not arbitrary or capricious. Accordingly, the decision of the Supreme Court of New York was reversed.
Bovee v Town of Hadley Planning Board, 201 WL 1629509 9 (NYAD 3 Dept. 4/15/2018)

This post was authored by Matthew Loeser, Esq. 

 

JSS Properties owned real property located in Johnstown, Ohio. Wendi Zigo, the Liberty Township Zoning Inspector, received a complaint from a neighboring landowner concerning multiple junk vehicles stored on the property, and discovered thirteen vehicles stored outside of the buildings on the property. Zigo cited JSS Properties for violating three sections of the Liberty Township Zoning Resolution. JSS Properties through its primary member, John Sadinsky, filed an appeal to the Board. Prior to the hearing, JSS Properties remedied two of the alleged violations. Nevertheless, the Board found Mr. Sadinsky was required to apply for a conditional use permit to continue the type of business he is operating and must remove the cars or cover them per the resolution. The trial court reversed, finding there was no evidence in the record to establish JSS Properties was engaged in commercial activity which involved retail or services offered to the public, in violation of Article 8, Section 807 of the resolution.

 

The record reflected that Sadinsky testified he did not operate JSS Properties as a service garage open to the general public, but serviced his own vehicles as well as vehicles belonging to family members. Sadinsky also indicated all of the vehicles located at the property were roadworthy. There was no evidence to contradict appellant’s contention that the vehicles were all operable. Moreover the BZA’s minutes indicated that the Board’s main concern was that appellant was storing vehicles in the open, not that he was operating a general automobile garage. Here, however, no section of the resolution was cited in conjunction with Section 807 in the notice of violation that prohibited appellant’s storing of operable vehicles in the open, and the court found there was no provision in Section 807 requiring operable vehicles to be enclosed. Accordingly, the court affirmed the trial court’s holding.

 

JSS Properties, II LLC v Liberty Township Board of Zoning Appeals, 2018 WL 1863359 (OH App. 4/13/2018)

 

This post was authored by Amy Lavine, Esq.

A Texas federal district court held in March that a city ordinance banning non-human primates did not violate a property owner’s rights under the Americans with Disabilities Act or the Fair Housing Act Amendments. The property owner claimed that she was entitled to a reasonable accommodation so that she could continue to keep a pet lemur on her property, which she contended was an emotional support animal. The city determined that her requested accommodation was not reasonable, however, and the court agreed, because the lemur presented a threat to public safety. Baughman v. City of Elkhart, 2018 U.S. Dist. LEXIS 50241 (E.D. Tex. 3/27/18)

The ordinance at issue was enacted after the plaintiff’s pet lemur attacked a woman who was shopping in her store, after having bitten several other persons in the past. In response to this incident the city enacted an ordinance that prohibited residents from keeping any “wild or vicious animal,” or any “exotic animal,” which specifically included “any non-human primate,” among other various animals. After the ordinance was enacted, however, the plaintiff sought to request a reasonable accommodation allowing her to keep the lemur, which she claimed was an emotional support animal. The city contended that it provided an opportunity for the plaintiff to present her position, but instead of identifying any specific disability or health issues underlying her need for the accommodation, she merely described additional security measures that she had put into place to prevent the lemur from attacking anyone else. The city denied her request, and this appeal followed.

The city reiterated its position on appeal that the ordinance was a valid exercise of its legislative and police powers and there was no evidence that it had engaged in any discriminatory housing practices in violation of the Fair Housing Act. Even if there were evidence of discrimination, the city argued, the plaintiff had still failed to submit a valid request for a reasonable accommodation, and even if she had, the request would have been properly denied because it was unreasonable based on the lemur’s history of attacks. In response, the plaintiff submitted evidence from a counselor and a physiologist averring that she had a mental health disability. She also claimed that while she had been allowed to present her reasonable accommodation request to the city council, the city had unfairly limited her time, allowed repeated interruptions, and prohibited her from submitting evidence or calling witnesses.

Although the court found that the plaintiff had a protected property interest in her lemur, it dismissed her substantive due process claim because the exotic animal ordinance was rationally related to legitimate public health and safety interests. The court also declined to find any procedural due process violations, because while she had complained about her ability to present evidence at her hearing, the plaintiff did not dispute that she had received notice and an opportunity to be heard. Next, on the issue of equal protection, the court determined that the ordinance was constitutionally sufficient because it applied generally to prohibit all people from keeping exotic animals, without any disparate impacts on particular groups or suspect classes, and there was no allegation that the plaintiff had been singled out and treated worse than other parties who were similarly situated.

The court next addressed the plaintiff’s claim that the city had impermissibly denied her request for a reasonable accommodation and explained that:

“The FHAA requires an accommodation if it is reasonable and necessary to afford an individual with a disability an equal opportunity to use and enjoy housing. The analysis of the reasonableness of the requested accommodation includes weighing the legitimate purposes and effects of the ordinance against the benefits that an accommodation would provide to the disabled individual.”

In this instance, the plaintiff sought an accommodation in the form of an exemption from the exotic animal ordinance so that she could keep her lemur and continue to reside in her home within the city limits. However, the court agreed with the city and determined that the plaintiff failed to show that her requested accommodation was reasonable. As the court noted: “Reasonableness is a highly fact-specific inquiry that requires balancing the Plaintiff’s needs with that of the governmental entity, but Plaintiff did not provide facts that would show that her interest in keeping her lemur outweighs the City’s interest in protecting its citizens.”

The plaintiff also challenged the ordinance under the Americans with Disabilities Act, but the court dismissed this claim as well. In particular, the court noted that:

The ADA is more restrictive than the FHAA, in that qualification for a reasonable accommodation concerning an animal requires an animal that is ‘specially trained to perform tasks directly related to a disability, contrasted with animals that have received only general training, provide only emotional support, or otherwise perform tasks not directly related to a disability.

The court also pointed out that a number of other cases have specifically found monkeys not to be service animals under the ADA because they do not perform day-to-day tasks related to their owners’ disabilities, but rather just provide comfort and companionship. The plaintiff was unable to produce any evidence that her lemur differed from these other monkey companion animals, and without any such evidence that her lemur assisted her in daily tasks related to her disability, she could not succeed on her ADA claim.

Because the plaintiff failed to state any viable claims for relief and there were no genuine issues of material fact, the court concluded that the city was entitled to summary judgment as a matter of law.

Baughman v. City of Elkhart, 2018 U.S. Dist. LEXIS 50241 (E.D. Tex. 3/27/18)

This post was authored by Amy Lavine, Esq.

A California court held in March that restrictions on short-term rentals constitute “developments” requiring prior approval from the Coastal Commission when they result in changes to the intensity of use or access to coastal lands. Applying this holding, the court found that a homeowners association resolution banning short-term rentals was invalid where it affected an extensive area of beach property that had previously been accessible to short-term renters. Greenfield v. Mandalay Shores Community Assn., 21 Cal. App. 5th 896 (3/27/18).

The appellants in this case owned a house in Oxnard Shores and began renting it out as a short-term vacation rental in 2015. The property was zoned single-family-beach and the zoning ordinance did not include any restrictions on short-term rentals, but in 2016, the homeowners association (HOA) passed a resolution that prohibited the rental of single-family dwellings for less than 30 days. The ban impacted a large residential area with more than 1,400 units and imposed steep fines, with first time violations starting at $1,000 and subsequent offenses incurring penalties of up to $5,000.

After the resolution was passed, the HOA received a letter from the Coastal Commission which explained that the short-term rental ban was a “development” under the Coastal Act and therefore required a coastal development permit. The Commission asked for the HOA’s cooperation so that they could “develop suitable regulations before taking action in the future related to short-term rentals in the community.” Despite this determination from the Coastal Commission, the trial court concluded that the short-term rental ban was not a “development” under the Coastal Act and declined to grant a preliminary injunction as requested by the appellants.

The court reversed on appeal and ordered the trial court to issue injunctive relief preventing the HOA from enforcing its short-term rental ban. Preliminarily, the court noted that the Coastal Act conferred standing to bring injunctions on “any person” seeking to restrain a coastal zone violation, and it further provided that a preliminary injunction “shall be issued” upon a prima facie showing of Coastal Act violations. Under this statutory framework, issues that would normally be significant in determining whether to grant an injunction were relevant. Accordingly, injunctive relief was appropriate in this case even though the typical balancing test for preliminary injunctions might not have weighed in their favor. As the court explained, “Because standing is conferred on ‘any person’ . . . it matters not when appellants started renting to short-term tenants or that appellants can be adequately compensated for economic damages if the STR ban is found to be invalid at trial.”

Regarding the merits of the case, the court emphasized that one of the fundamental purposes of the Coastal Act was to maximize public access to the beach, and on that basis it prohibited not just physical barriers to coastal property but also monetary barriers like the HOAs’s short-term rental ban. The type of “development” covered by the Coastal Act was also broadly defined to require coastal permits for any “change in the density or intensity of use of land,” and prior case law indicated the Act should be given “[a]n expansive interpretation” in order to “accomplish its purposes and objectives.” Under this understanding of the Coastal Act, the court found that the short-term rental ban changed the intensity of use and access to single-family homes, as short-term renters could no longer access rentals in Oxnard Shores, and the resolution was therefore a “development” for which a coastal permit was required.

The court also dismissed the HOA’s argument that the resolution was necessary to address problems caused by increased short-term rentals, such as parking, traffic, and noise. “STR bans,” the court explained, “are a matter for the City and Coastal Commission to address. STRs may not be regulated by private actors where it affects the intensity of use or access to single-family residences in a coastal zone.” The court pointed out the city was in the process of considering zoning amendments to regulate short-term rentals in a manner consistent with the local coastal plan and subject to review by the Coastal Commission, and the HOA’s attempt to bypass this process was sufficient grounds for granting injunctive relief.

Greenfield v. Mandalay Shores Community Assn., 21 Cal. App. 5th 896 (3/27/18)

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