Editor’s note: This summary is reposted from the RLUIPA Defense blog with permission, see: https://www.rluipa-defense.com/2016/09/rluipa-case-of-the-year-minnesota-municipality-uses-rluipas-safe-harbor-provision-to-avoid-liability

In an important decision for municipalities across the country, a federal court in Minnesota has recently ruled that actions taken under RLUIPA’s “safe harbor” provision absolved a local government of possible RLUIPA violations.  This is especially noteworthy because few courts have considered the safe harbor provision.  According to the court, the City of St. Michael’s amendments to its zoning regulations to allow religious uses as conditional uses in the business zone (where they were previously prohibited), coupled with the granting of a conditional use permit, meant the City had to prevail.  The safe harbor provision provides:

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

Here is the background.  Riverside Church held services in Big Lake, Minnesota, but needed to find a second location to accommodate its growth.  From 2004 to 2014, the Church’s attendance at Sunday worship services increased from 665 to nearly 1,500 people.  The Church identified property in the City of St. Michael’s business zone, about 12 miles south of Big Lake, that was formerly used as a 15-screen movie theater, and sought to purchase the property so that it could hold worship services there (“Theater Property”).  The Theater Property was for sale at just under $3 million, but the City’s zoning code, at the time prohibited religious uses from the subject business zone.

In July 2014, the Church submitted an application to amend the text of the zoning regulations to allow religious uses in the business zone.  Around the same time, the Church entered into a purchase and sale agreement for the Theater Property contingent on obtaining zoning approval to allow religious use of the property.  As the text amendment application was pending, the City Council imposed an across-the-board moratorium that barred “the use of any land for new or expanded assembly, theater, or church, purposes during the period of the moratorium.”  The purpose of the moratorium was to give the City time to study the impacts of these types of assembly uses in business zones.  The same day the moratorium was imposed, the City amended the zoning regulations by removing “theaters” (which had been allowed as-of-right) and replacing that use with “multi-plex theater” as a conditional use.

The Church and the City attempted to negotiate a compromise that would allow the Church to use the Theater Property, but negotiations fell apart and the City then denied the text amendment application.  In denying the application, the City issued its “Findings of Fact and Decision” in which it found that religious uses would have an adverse impact on other uses in the business zone and would cause parking, traffic, and infrastructure concerns.  The purchase and sale agreement for the Theater Property terminated.

In March, 2015, the Church entered into another purchase and sale agreement for the Theater Property for about $3.5 million, plus the cost of repairs and improvements to the property.  Three days later, the Church sued the City under RLUIPA, the U.S. Constitution, and Minnesota law.  While litigation was pending, the City utilized RLUIPA’s safe harbor provision to amend its zoning code.  The zoning code amendment removed “multi-plex theater” and added “assembly, religious institution, house of worship” as conditional uses.  In April, 2015, the City issued the Church a conditional use permit to use the Theater Property.  However, the Church was unable to purchase the Theater Property because the total cost, with the repairs and improvements, would be more than $5 million.

In considering the City’s motion for summary judgment, the District Court for the District of Minnesota ruled that the City’s use of the safe harbor provision relieved the City from liability under RLUIPA.  Specifically, the City’s amendment to the zoning code to allow religious uses in the business zone as conditional uses and its granting the Church a conditional use permit to use the Theater Property “eliminated any alleged substantial burden and any alleged discriminatory treatment” imposed by the former zoning code and denial of the Church’s text amendment application.

The Court also ruled that the substantial burden and equal terms claims failed regardless of the safe harbor provision.  Neither the former zoning code nor the denial of the Church’s text amendment application constituted a substantial burden, because: (a) they merely inconvenienced the Church, since the Church could have established a site in any of the remaining zones where religious uses were permitted, and (b) the City’s Findings of Fact and Decision shows that its actions were well-reasoned and not arbitrary and capricious.  The Court’s decision is noteworthy for its review of other circuits’ interpretations and applications of the substantial burden provision, as the Eighth Circuit had yet to define what is meant by “substantial burden.”

As for the equal terms claim, the Court utilized both the Third Circuit’s “regulatory purpose” and Seventh Circuit’s “accepted zoning criteria” tests.  According to the Court, the regulatory purpose for the business zone is to provide land for business and retail uses to strengthen the City’s economy.  Similarly, zoning criteria for the subject business district is to generate taxable revenue and shopping opportunities.  This led the Court to conclude:

With respect to these purposes and zoning criteria, a church is not similarly situated to a movie theater. A church is not in the business of selling items to the public and, as a non-profit entity, does not generate taxable revenue. A movie theater, in contrast, typically focuses on selling tickets and food to moviegoers and is a for-profit entity that generates taxable revenue.

Accordingly, the City’s pre-amendment prohibition of religious uses in the business zone did not violate the equal terms provision.

The Court also rejected the Church’s Free Exercise claim.  First, the zoning code’s ban on religious uses did not substantially burden the Church’s religious exercise.  Second, the moratorium, which prevented the Church from finding a new site anywhere in the City for a year, was neutral and generally applicable.

The Court declined entering summary judgment in favor of the City as to the Church’s Free Speech claim, because there remained a genuine issue of material fact with respect to whether the zoning ordinance’s ban on religious uses was “narrowly tailored” to advance the City’s government interests (strengthening the City’s economic base and providing employment opportunities).  Notably, however, the Court concluded that the subject ordinance was content-neutral under the Supreme Court’s decision in Reed v. Town of Gilbert, because the focus of the ordinance was on genuine public health, safety, and general welfare issues.

Riverside Church v. City of St. Michael,  0:15-cv-01575-DWF-JSM  (D. Minn. 8/31/2016) is available here.

The Sisters/Servants of the Holy Ghost and Mary Immaculate began negotiations to convey a subject property to Ridgemont Investment Group, LLC and Intervenor Crosspoint, Inc. Crosspoint operated correctional and rehabilitative facilities, and intended to use the subject property as short-term housing for parolees as they transition from prison to release. To facilitate the planned conveyance, the Sisters filed an application and request for rezoning of the Property, seeking both a C-3 zoning designation and a Specific Use Authorization. Once the transitional home began operating, property values in the surrounding neighborhood decreased between 25% and 35%. Affected homeowners formed Plaintiff Unincorporated Non-Profit Association of Concerned Eastside Citizens and Property Owners, and sued the City in district court, challenging the 2009 Ordinance. In 2011, the City passed a new ordinance relaxing citywide zoning requirements for halfway houses. The district court held that the change mooted the plaintiff’s claim.

The 2009 Ordinance consisted of two components: it rezoned the Property from MF-33 to C-3; and it granted the requisite Specific Use Authorization. The district court held the two components were severable. Accordingly, even if the district court were to void the rezoning portion of the 2009 Ordinance, the Property would revert to a zoning designation of MF-33 but keep the Specific Use Authorization to operate a transitional home.”

On appeal, the court found the two portions were severable according to Section 1-17 of the San Antonio Code, as well Chapter 35 of the San Antonio City Code, which contained the 2009 Ordinance. Chapter 35 included its own severability provision that was also applicable to the 2009 Ordinance. Even assuming the 2009 Ordinance’s rezoning portion needed to be stricken, the subject property would still hold the requisite Specific Use Authorization. Thus, with the 2011 Ordinance, Crosspoint would still be able to operate its transitional home even if the Property reverted back to an MF-33 base zoning designation. The court therefore found the Citizens Association’s spot-zoning claim was moot.

Unincorporated Non-Profit Association of Concerned Eastside Citizens and Property Owners v. City of San Antonio, 2016 WL 4254379 (5th Cir CA, unrep. 8/11/2016)

Mark Zweber owned a large parcel of undeveloped land in Credit River Township, located in Scott County. Zweber contacted County officials in April 2003 to develop a plan for the development of the parcel, which he named Liberty Creek. Among other things, Zweber and the County discussed where to locate roads within the subdivision and how to stem the flow of traffic into adjoining neighborhoods. The discussions resulted in the submission of Zweber’s 2006 preliminary plat application, which proposed to divide the parcel into 39 lots and 1 outlot. Despite the County Board’s approval of the final plat, Zweber did not proceed with the Liberty Creek development, and, in 2008, Zweber instead submitted to the County an application for a proposed re-subdivision of the parcel, then referred to as the Estates of Liberty Creek. However, based on the recommendation of the Planning Commission, the County Board denied the application.

Zweber brought a § 1983 civil rights action against County and Township, alleging that they had deprived him of his property without just compensation and had violated his equal protection rights. The District Court denied the summary judgment motion filed by County and Township, determining that it had subject matter jurisdiction over constitutional claims. The County and Township appealed, and the Court of Appeals reversed, finding Zweber was granted his petition for review. The Court concluded that it had exclusive jurisdiction over both of Zweber’s constitutional claims because the county’s decisions on the plat and re-subdivision applications were quasi-judicial and the constitutional claims were not “separate and distinct” from them. On appeal, the court noted that legislative decisions can be reviewed by filing a summons and complaint in district court; however, even if the decisions of the County were quasi-judicial, it was still possible that the district court would have jurisdiction to adjudicate the derivative constitutional claims pleaded in Zweber’s amended complaint.

The court further noted that while there was some overlap in the facts underlying Zweber’s constitutional claims and the County’s decisions on Zweber’s plat and re-subdivision applications, the presence of overlap was not enough; the claims themselves did not need to be completely separate and distinct for the district court to have jurisdiction over them. Here, the takings claim did not require an examination into the validity of the county’s decisions because it presupposed that the conditions placed on his plat application were valid. Similarly, Zweber’s equal-protection claim did not depend upon the validity of the County’s quasi-judicial decision. Here, Zweber was not seeking reversal or modification of the County’s quasi-judicial decisions, as the complaint stated that development of the parcel was no longer feasible and sought only money damages for the wrongs allegedly committed by the County.

Lastly, the court found that each of Zweber’s constitutional claims could be adjudicated without inquiring into the validity of the County’s decisions, since Zweber did not request injunctive relief seeking to “undo” the County’s decisions. Thus, the district court had jurisdiction to adjudicate Zweber’s constitutional claims. Accordingly, the court reversed the decision of the court of appeals.

Zweber v. Credit River Township, 882 NW2d 605 (MN 7/27/2016)

Posted by: Patricia Salkin | September 22, 2016

Fed. Dist. Court in NY Finds Village Sign Law Unconstitutional

Plaintiff, a resident of the defendant Village of Perry, placed six signs along her property at 76 North Main Street protesting the construction of a parking lot for the Village’s library, one of which read: “LIBRARY PARKING LOT = QUARTER MILLION DOLLARS + SQUANDERED.” As a result, plaintiff was issued a Notice of Apparent Violation on February 24, 2015 from defendant Donald Roberts, the Village’s Zoning Enforcement Officer, which order the signage to be removed to avoid further legal action. Although plaintiff covered the signs with opaque bags and moved them away from the property line, she received a Notice of Violation. Plaintiff commenced an action alleging that the Village’s Sign Law, discriminated on the basis of sign content and granted enforcement of the law to the unfettered discretion of authorities, and was therefore facially unconstitutional. She also alleged that the Village’s selective enforcement of its Sign Law violated her freedom of speech and equal protection rights.

Plaintiff argued that under the Village’s Sign Law “certain commercial signs, such as those advertising property for lease, for rent, or for sale, signs denoting that an architect, engineer, or contractor is working on the premises, all are exempt from the permit requirement yet signs which protest the policies of the government are subject to the permit requirement,” thus the law discriminated based on content. Due to the distinction that the Village’s Sign Law drew between signs containing certain commercial speech, which did not require a permit, and signs containing noncommercial speech, which required a permit, and there being no attempt by defendants to explain why that distinction was not content-based, the court concluded that the Sign Law was content-based. Since the Village offered no justification as to how its content-based restriction was narrowly tailored to serve a compelling state interest, the court granted the plaintiff’s motion for summary judgment on this claim.

Plaintiff also argued that she “was the object of discriminatory enforcement of the sign law”, and that “her speech was chilled as a result.” Because the undisputed evidence of this case established that the signs posted by plaintiff critical of Village officials were subject to a permitting requirement that was not applied to other protest signs, and the selective enforcement of the Sign Law resulted in plaintiff covering her signs, the court found her speech had in fact been chilled. Accordingly, the court also granted plaintiff’s motion for summary judgment as to this claim.

Grieve v. Village of Perry, 2016 WL 4491713 (WDNY 8/3/2016)

Plaintiff, the Inclusive Communities Project, Inc. (“ICP”), brought an action against defendants Texas Department of Housing and Community Affairs and its Executive Director and board members in their official capacities (collectively, “TDHCA”). Plaintiffs challenged TDHCA’s allocation of Low Income Housing Tax Credits (“LIHTC”) in the Dallas metropolitan area. ICP was a non-profit organization that sought racial and socioeconomic integration in the Dallas metropolitan area, by assisting low-income, predominantly African-American families who were eligible for the Dallas Housing Authority’s Section 8 Housing Choice Voucher program  in finding affordable housing in predominately Caucasian, suburban neighborhoods. Following the entry of partial summary judgment in ICP’s favor, the trial court found in favor of ICP on its FHA-based disparate impact claim and against ICP on all other claims. On appeal, the Fifth Circuit reversed and remanded.

On remand, ICP argued that the briefing should commence at step two of the three-part burden-shifting approach: that TDHCA should be required to address the justification element, followed by ICP’s addressing the less discriminatory alternative element. The court concluded “that the interests of justice and fundamental fairness required that the court first consider on the current trial record whether ICP had established a prima facie case.” The gravamen of ICP’s complaint is the allocation of 9% tax credits for low-income housing developments. Specifically, ICP alleged that the policy or practice of permitting the TDHCA to use its discretion in allocating 9% tax credits perpetuates racial segregation, in violation of the FHA. TDHCA responded that ICP had not identified a specific, facially-neutral policy that caused a racially disparate impact sufficient to establish a prima facie case under the FHA. TDHCA further argued that discretion itself is not a policy, and ICP had not accounted for the actions, policies, or preferences of third parties: such as Congress, the Texas Legislature, developers, and local communities that could impact the location of LIHTC units.

The court found that ICP failed to point to a specific, facially neutral policy that purportedly caused a racially disparate impact. By relying only on TDHC’s exercise of discretion in awarding tax credits, ICP had not isolated or identified the specific practice that caused the disparity in the location of low-income housing. Moreover, ICP’s disparate impact claim was also dismissed because regardless of the label ICP places on its claim, it was actually complaining about disparate treatment, not disparate impact. Even assuming that TDHCA’s use of discretion was a specific, facially neutral policy, ICP failed to establish that the exercise of that discretion caused the disparity in the location of low-income housing. ICP failed to demonstrate that, had TDHCA not been permitted to exercise any discretion when allocating 9% tax credits, and had those decisions been made strictly by the points system, there would be no, or significantly less, disparity in the location of LIHTC units. Additionally, ICP failed to prove what the distribution of LIHTC units or the percentages of approved 9% applications would have been had TDHCA awarded credits based strictly on points had it exercised no discretion.

ICP also argued that TDHCA perpetuated racial segregation by using its discretion to approve applications for 4% tax credits in minority areas with undesirable site conditions, and by denying two applications for 4% tax credits for projects in Caucasian areas. However, even assuming that ICP proved that TDHCA had a facially neutral policy or practice in allocating 4% tax credits, the use of discretion in the allocation of 4% tax credits, ICP failed to prove that TDHCA’s exercise of discretion caused a statistically-significant disparity in the location of low-income housing. Accordingly, the court dismissed ICP’s disparate impact claim and entered judgment in favor of defendants.

The Inclusive Communities Project, Inc. v. Texas Dept. of Housing and Community Affairs, 2016 WL 4494322 (ND TX 8/26/2016)

The City of Springfield, Nebraska, filed an action against the City of Papillion, Nebraska, and the County of Sarpy, Nebraska, seeking to enjoin Papillion from annexing land which had been indicated as Springfield’s area of future growth in a map adopted by the County in 1995. In 1994, the Nebraska Legislature passed the County Industrial Sewer Construction Act. Under the procedures outlined in the Act, a 1995 resolution passed by the County identified a parcel of land south of Highway 370 as part of Springfield’s area of future growth and development. However, in July 2015, Papillion enacted ordinances Nos. 1715 and 1716, which annexed a portion of this area. The district court for Sarpy County found that Springfield lacked standing and Springfield appealed.

The sole issue on appeal was whether the Act granted Springfield an interest sufficient to give Springfield standing to challenge Papillion’s allegedly illegal annexation of that land, despite that land being located outside of Springfield’s boundaries and its extraterritorial jurisdiction for purposes of zoning and platting. The court found Springfield had standing for three reasons. First, since Papillion extended its jurisdiction into Springfield’s area of future growth and development, if Papillion had requested a revision to the map rather than proceeding with annexation, Springfield would have been entitled to notice and a public hearing. Here, Papillion’s allegedly invalid annexation deprived Springfield of this process.

Secondly, once the property at issue in this case was identified as Springfield’s area of future growth and development, the county was required to give Springfield notice of any plans for sewerage system development in that property. Lastly, under § 23–3632, Springfield had a right to appoint three of the six members on the urbanizing area planning commission with jurisdiction over the municipalities’ areas of future growth and development. The planning commission had veto power over applications for residential connections to sewerage systems in those areas, including issues of: zoning, adjustment appeals, replatting, building codes, and permitting arising out of an application for connection.

Moreover, the court found the right to exercise these powers was a personal, legal interest of Springfield’s, regardless of whether it was actively exercising these rights at the time Papillion annexed the disputed territory. Accordingly, the court reversed the district court’s holding, and found that the Act granted Springfield standing to challenge Papillion’s annexation.

City of Springfield v. City of Papillion, 294 Neb. 604 (NE 8/26/2016)

Homeowners, Colleen and John Austin, brought an action seeking injunctive and declaratory relief against the town, alleging that a variance that permitted installation of above-ground pool with protective fencing on basis of their son’s disability, but required that pool and fence be removed upon sale of the home or when their disabled son was no longer in residence, violated their rights under Fair Housing Act (FHA) to a reasonable modification. They also alleged that the town retaliated against them for asserting FHA claims. The United States District Court for the Western District of New York granted town’s motion to dismiss, and the homeowners appealed.

The court found a plain reading of the statute revealed that there was no per se rule against land-use regulators including restoration provisions in zoning variances or other land-use accommodations. However, the court noted that a requested accommodation is reasonable where the cost is modest and it does not pose an undue hardship or substantial burden on the rule maker. Thus, the reasonableness issue here could not be determined on the pleadings because there were several relevant factors and balancing them would require a full evidentiary record. Accordingly, the court reversed the dismissal of this claim.

Next, appellants argued that the lack of a proffered justification for the Restoration Provisions, and the existence elsewhere in the Town of lots smaller than appellants’ property without a prohibition on accessory structures, was sufficient to allege a prima facie case of retaliation. Here, however, the Restoration Provisions on their face simply restored the requirements applicable to all such properties in the area once the needs of appellants’ disabled child were not an issue. The court found that the Town’s purposes were reflected in the documents accompanying appellants’ own motion for summary judgment: Town-wide differences in the applicability of various land-use regulations to various developments and lots preexisted appellants’ request for a variance, and the Auburn Meadows regulations applied to appellants’ neighbors as well as to them. Accordingly, the court affirmed the dismissal of appellants’ retaliation claim.

Austin v. Town of Farmington, 826 F.3d 622 (2d Cir. CA 6/21/2016)

Mary Bourassa appealed the Environmental Division’s affirmance of a zoning permit application by her neighbors, Philip and Barbara Wagner and Christopher Guay, who sought to construct a single family residence and detached garage on two merged lots of a six-lot subdivision in Grand Isle, Vermont. The Wagners owned lots 3 and 4 of the subdivision, while Bourassa owned and resided at lot 2 of the subdivision. The Wagners sought to sell their lots to Mr. Guay with the intention of adjusting lot lines, merging lots 3 and 4 into a single lot, and building a single-family residence and detached garage on that combined lot. Bourassa opposed the development on the ground that the proposed house would not be constructed within the “tree line” on the property, as required by the subdivision plat plan.

Bourassa’s first, and central, argument is that the Environmental Division’s interpretation of the phrase “within the tree line” was “clearly erroneous.” Bourassa argued that because the phrase is inherently ambiguous, it must be construed against the drafter and proffering party, Mr. Wagner, such that Bourassa’s interpretation of the “tree line” as referring to a line drawn along the trunks of mature trees closest to the road must control. The court first noted that Bourassa’s assertion that permit conditions should be interpreted under the same principles as private contracts had no basis in law. Here, the evidence indicated that the plat plan containing the condition was submitted by Mr. Wagner, and the condition was not required by Grand Isle zoning or subdivision regulations and was unchanged in the Planning Commission’s deliberation. Here, the court determined that ample evidence existed to support the Environmental Division’s conclusion that the phrase “within the tree line” and the scalloped line on the 1995 Plat Plan were intended to reflect the line between the open meadow area and the forested area, rather than the current location of the trunks of mature trees. Accordingly, the court found that Mr. Wagner’s evidence of intent was relevant and admissible, and the Environmental Division properly relied upon it.

Bourassa’s second argument was that the Environmental Division could not rely on Mr. Wagner’s testimony as to the meaning of the phrase “the tree line” because such testimony should be barred by equitable estoppel. She claimed that “the homeowners testified unanimously that they were expressly led to believe that the ‘tree line’ consisted of the tree trunks” and that, in reliance on his words and actions, these homeowners purchased lots within the development. She further contended that although Mr. Wagner “never contradicted this testimony,” the court never made any findings or addressed the issue. However, the court found that the argument was not considered by the Environmental Division because it was not properly raised; therefore, it was not preserved for appeal, and Bourassa was not entitled to reversal on this ground.

Next, Bourassa argued that the Environmental Division erred in dismissing three of her initial questions, which were relevant to the issue of whether applicants’ permit application was inconsistent with the covenants and restrictions in the deeds for lots 2, 5, and 6. However, because the court ruled on the ground that the questions raised issues regarding private property rights, these questions were outside the scope of the Environmental Division’s jurisdiction. Lastly, Bourassa argued that that the language required the town to declare that violation of a deed covenant was also a violation of the zoning bylaw. The court noted, however, that nowhere in the specific restrictions of the bylaws supported this interpretation. Accordingly, the court affirmed the decision of the Environmental Division to dismiss these claims based on the deed covenants.

In re Wagner & Guay Permit, 2016 WL 4582242 (VT 9/2/2016)

This case arose from a discretionary appeal application by the City of Dunwoody from a judgment of the DeKalb County Superior Court, which reversed the decision of the City of Dunwoody Zoning Board of Appeals.  The decision pertained to a dispute regarding whether the proposed use of property controlled by Discovery Practice Management, Inc., d/b/a Center For Discovery and DV Dunwoody, fit within the existing zoning classification of the district where the property is located. The ZBA determined that the City’s earlier classification of Discovery’s proposed use of the property as a family personal care home was erroneous. The Superior Court reversed the ZBA’s determination, and thereby reinstated the classification. On appeal from the Superior Court order, the City argued that the Superior Court erred by: denying its motion to dismiss a renewed petition for certiorari Discovery had filed pursuant to OCGA §§ 5–4–3 and 9–2–61 (a); and reversing the ZBA’s decision.

Discovery filed its first petition for writ of certiorari in the Superior Court within the 30–day limitation period of OCGA § 5–4–6 (a). Pursuant to OCGA § 5–4–6 (b), the petition and writ were required to be personally served upon the ZBA, as respondent-in-certiorari. The parties did not dispute that service of the petition and writ were perfected on the City; however, the City disputed service on the ZBA, and Discovery voluntarily dismissed the action. At the time of dismissal, no judicial determination had been entered on the petition. Soon thereafter, Discovery re-filed the petition for writ of certiorari, citing OCGA §§ 5–4–32 and 9–2–61 (a). The City filed a motion to dismiss the re-filed petition on the basis that it was void ab initio because the original petition and writ were never properly served on ZBA pursuant to OCGA § 5–4–6 (b) before the action was dismissed and, therefore, the dismissed action was void and not subject to renewal under OCGA § 9–2–61 (a). The court determined that although the requisite personal service pursuant to OCGA § 5–4–6 was not perfected upon the ZBA, the lack of personal service as to ZBA did not render the petition void and, thus, a bar to renewal as it could be renewed pursuant to OCGA § 9–2–61.

The court next addressed the City’s argument for reversing the ZBA’s decision by ruling that neighbors were not entitled to notice of the city planner’s classification decision. However, the ordinance explicitly provided that use of property as a family personal care home was permitted as of right in the residential zoning district where the property was located. Furthermore, it was undisputed that the plain language of the ordinance did not require that neighboring property owners be given notice of a city official’s decision that a homeowner’s stated proposed use for his/her property was permitted under the existing zoning classification as a matter of right. Accordingly, the court held that the ZBA erroneously construed the ordinance despite its plain language.

City of Dunwoody v. Discovery Practice Management, Inc., 2016 WL 3865868 (GA App. 7/14/2016)

Editor’s Note: This summary is reposted from Bond Case Briefs here: http://bondcasebriefs.com/2016/08/09/cases/jai-sai-ram-llc-v-planningzoning-bd-of-borough-of-south-toms-river/

Convenience store chain applied for a use variance to construct a combined convenience store and gas station on a piece of property located partially in a highway development zone and partly in a residential zone.

Borough planning/zoning board approved the application. Gas station operator filed an action in lieu of prerogative writs challenging board’s decision. The Superior Court affirmed. Operator appealed. While appeal was pending, the borough amended its zoning ordinance to benefit of chain.

The Superior Court, Appellate Division, held that time of application rule does not apply when the municipality amends the ordinance to specifically permit the use which is the subject of the application.

Time of application rule, providing that development regulations which are in effect on the date of submission of an application for development shall govern review of that application and any decision made regarding such, does not apply when, after a use variance application is filed, seeking relief under existing zoning ordinance, the municipality amends the ordinance to specifically permit the use which is the subject of the application, and the developer is entitled to the benefit of the ordinance as amended.

Where there is a pending appeal challenging the grant of a use variance, the appeal becomes moot by virtue of an amendment to zoning ordinance specifically permitting the use which is the subject of the development application, because the applicant could proceed with the project without the variance.

Jai Sai Ram, LLC v. Planning/Zoning Bd. of Borough of South Toms River, 2016 WL 4005449 (NJ App. 7/27/2016)

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