The UNC School of Law’s Center for Civil Rights released a county planning boards study that found that board member selection processes and powers and duties vary, and the gender, ethnic and racial representation of the boards often don’t reflect the demographics of the county.
There are 100 counties in North Carolina, and 92 of those counties have planning boards staff from 85 of the 92 counties were interviewed for the study. The report focuses on the powers and duties, member selection procedures, and racial ethnic and gender representations among these planning boards.

The report also contains recommendations for how elected governing bodies can improve their procedures for selecting planning board members and produce more demographically balanced, representative planning boards, including the amendment of enabling ordinances to make race, ethnicity and gender a formal consideration. The report was limited to county planning boards and planning boards merged between the county and the largest municipality.

 

The report can be accessed here: https://law.unc.edu/wp-content/uploads/2020/01/Planning-Boards-Inclusion-Report-2020-final.pdf

This post was authored by Amy Lavine, Esq. 

In Matter of Save Monroe Ave., Inc. v Town of Brighton, the New York Appellate Division, Fourth Department affirmed the town board’s authorization of certain zoning deviations pursuant to its incentive zoning law. These zoning deviations didn’t amount to de facto amendments to the zoning law made without prior referral to the planning board, the court held, since the incentive zoning regulations were already part of the town’s zoning laws and had been properly adopted after the required planning board review.

Matter of Save Monroe Ave., Inc. v Town of Brighton, 2020 NY Slip Op 00752 (N.Y. App. Div. 4th Dept. January 31, 2020)

 

In a related case, Matter of Brighton Grassroots, LLC v Town of Brighton, the court also dismissed several claims challenging the validity of the town’s incentive zoning law. The court found that the law complied with the town’s zoning enabling legislation and specifically rejected the petitioner’s contention that the town was required to “adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law.”

The court additionally found no violations of the Open Meetings Law. The petitioner’s claim that the town board engaged in secret meetings was rejected because its allegations were merely speculative and conclusory. There was also no merit to the petitioner’s argument that the town violated the Open Meetings Law by posting too much information on its website several days before one of the public meetings concerning the project.

However, the court did agree with the petitioner on its public trust claim because there were unresolved factual issues related to the project’s potential impacts on a recreational, trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail.” The court also found that the petitioner’s cause of action regarding a permissive referendum was improperly dismissed as unripe.

Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 NY Slip Op 00754 (N.Y. App. Div. 4th Dept. January 31, 2020)

This post was authored by Matthew Loeser, Esq.

LB Moab Land Company LLC, a real estate development firm, planned to build a large mixed-use development project known as Lionsback Resort on land located just east of Moab, Utah and owned by the Utah School and Institutional Trust Lands Administration (“SITLA”). Developer proposed certain modifications to the project’s site plan, but those modifications were publicly opposed by a group of local citizens. Aware of both the opposition, and that Developer had threatened litigation if the newly-modified Project was not approved, the City of Moab entered into a contract with SITLA and Developer, pursuant to which the City agreed to classify the proposed modifications “minor” rather than “major.” Under the applicable municipal ordinances, this change in classification would allow the proposed modifications to be approved without a public hearing. The Moab City Council adopted a resolution, without holding a public hearing, authorizing the City’s mayor to execute the contract. The opposing citizens sued the City, and sought an order enjoining the project from proceeding until a public hearing was held on the proposed modifications. The district court dismissed citizens’ lawsuit on summary judgment, and the citizens appealed.

Here, since the City already determined, by its own internal review, that Developer’s proposed modifications were major changes under the Moab Municipal Code, the court held those modifications could not be approved without a public hearing. Then, rather than formally reversing its decision, the City agreed to deem the changes “minor” as part of the ZSA, and included that provision in a larger, wider-ranging agreement that invoked broader questions of municipal policy. The court found that by passing the resolution without a public hearing, and adopting a contract that altered the public hearing requirements set forth in city ordinances, the City violated not only LUDMA but also its own municipal code. While the City’s power to contract was broad, the court held that this power did not extend that far. Accordingly, the court reversed the district court’s entry of summary judgment, and remanded the case.

Wallingford v Moab City and Moab City Council, 2020 UT App 12 (UT App. 1/24/2020)

This post was authored by Matthew Loeser, Esq.

In 2016, Central UTA of Monsey (“CUTA”), which operated a private religious school for the education of Hasidic Jewish children, purchased property in the Village and District of Airmont. After CUTA purchased the property, it began to prepare an application to amend the property’s site plan to allow for the construction of two new schools: one for boys and one for girls. The Village of Airmont’s planning and zoning clerk advised CUTA that, in order for its CDRC application to proceed, CUTA would have to obtain an operating permit from defendant Building Inspector Louis Zummo. CUTA applied to the building department clerk for one on March 9, 2017; however, the building department clerk resigned and CUTA’s application was never processed. On February 8, 2017, the Board of Trustees passed an interim land use development moratorium, which expired on or about September 4, 2018. On August 5, 2017, defendant Code Enforcer Marino Fontana issued a Notice of Violation (“NOV”) to CUTA for operating a school for 200 to 300 students without a Certificate of Occupancy. The ZBA upheld the NOV, and CUTA appealed.

The court first found that plaintiffs had sufficiently alleged defendant Code Enforcer Fontana’s issuance of the NOV, and the Village Defendants’ enforcement of the NOV, substantially burdened their religious exercise. Specifically, plaintiffs alleged that as a result of the NOV, CUTA faced a substantial monetary penalty, reduced the number of students whom it could enroll and charge tuition, lost its construction loan, was unable to acquire clear title on its property, and was consequently defaulting on its mortgage. Plaintiffs further claimed the NOV led to the District’s decision to stop providing CUTA transportation and special needs services and caused CUTA to temporarily lose their tax exemption. Additionally, plaintiffs alleged that the Village enforced the 167-student maximum in the certificate of occupancy only after CUTA acquired the property to build a large Hasidic school.  Conversely, plaintiffs claimed that Ateres, the non-Hasidic school that operated on CUTA’s property for several years before CUTA acquired the property, enrolled over 400 students annually, and the Village never issued or enforced an NOV against Ateres. Moreover, plaintiffs alleged that Camp Regesh hosted approximately 600 students on the property before the 2001 site plan was approved, and the building inspector at that time did not require Camp Regesh to amend its site plan. Accordingly, the court held that plaintiffs plausibly stated an RLUIPA substantial burden claim and a Section 1983 free exercise claim against the Village Defendants and District based on the NOV.

The court also found that plaintiffs plausibly stated RLUIPA nondiscrimination and equal terms claims against the Village Defendants and Section 1983 equal protection claims against both the Village Defendants and the District. In support of their claim, plaintiffs alleged that a member of the ZBA specifically mentioned houses of worship as a reason the Village should impose a moratorium, and the only houses of worship in contemplation of construction or renovation in the Village were Hasidic Jewish synagogues. Moreover, the Village extended its moratorium three times, even though there was no good cause for these extensions. Finally, the record indicated that plaintiffs allege Mayor Gigante and other members of the Board of Trustees were members of Preserve Airmont, a political party intent on limiting the growth of the Hasidic community, and campaigned on anti-Hasidic platforms. Accordingly, the court held plaintiffs plausibly state RLUIPA nondiscrimination and equal terms claims and Section 1983 equal protection claims against the Village Defendants and District based on both the NOV and the moratorium. For the same reasons, plaintiffs were found to have plausibly alleged an RLUIPA exclusions and limits claim based on the NOV, and sufficient facts suggesting the agreement between the Village Defendants and the District was motivated by discriminatory animus.

Plaintiffs failed to plausibly to allege the Village or District’s actions interfered in their relationships with their children. Here, nothing in the amended complaint indicated the NOV required plaintiffs to send their children to a school of which they disapproved, or required the children to study in environment contrary to their belief systems. Thus, the NOV left plaintiffs’ relationships with their children completely untouched. Likewise, the District’s certificate of occupancy requirement was found to not interfere with any of plaintiffs’ relationships with their children. As such, plaintiffs’ Section 1983 claim against the District and Village Defendants for violation of their right to intimate association was dismissed. However, plaintiffs plausibly alleged a Section 1983 claim against the Village Defendants and the District for violation of their right to expressive association, as plaintiffs alleged the Village Defendants issued the NOV to limit the number of students that could attend CUTA’s schools and the District refused to provide transportation services to CUTA.

As a final matter, the Village Defendants contended all remaining individual defendants – Mayor Gigante, the four members of the ZBA, Building Inspector Zummo, and Code Enforcer Fontana – were entitled to qualified immunity. The position was rejected as plaintiffs were found to have stated plausible claims for relief, including the violation of their right to equal protection. Furthermore, there remained questions of fact as to whether the ordinance was applied or enforced with a discriminatory intent or purpose. Thus, the remaining individual defendants were not entitled to qualified immunity at this time. The court did, however, dismiss the claims against the Board of Trustees, ZBA, Planning Board, and Building Department, because they were merely administrative arms of the Village rather than not suable entities.

Central UTA of Monsey v Village of Airmont, 2020 WL 377706 (SDNY 1/23/2020)

This post was authored by Matthew Loeser, Esq.

PAJ Ventures, L.P. filed a zoning permit application proposing a “picnic grove” on its property, located in the Rural Agricultural Zone, as a continuation of a prior nonconforming use. The Moore Township Zoning Officer denied Landowner’s application on the grounds that the nonconforming use of the property as a picnic grove had been abandoned and that a picnic grove was not a permitted use in the RA Zone. the Board concluded that Landowner’s prior lawful nonconforming use of its property as a picnic grove had been abandoned, and the Court of Common Pleas of Northampton County affirmed.

On appeal, the Landowner first contended the Township failed to meet its burden of demonstrating abandonment of the nonconforming use on the property. Specifically, Landowner argued that the Timmers, who purchased the property in 1970 and used it as a picnic grove, known as “Timmer’s Grove,” until approximately 2013, were dealing with advanced age and poor health and that Joe Timmer told the Zoning Officer that poor health was his reason for failing to maintain the property. The Board found that this evidence was not supported by testimony of physicians, close friends, or family members and that Mickey Thompson, who testified as to Joe Timmer’s health, did not provide evidence of when Joe Timmer was first afflicted by dementia. Accordingly, the Board claimed that, as the arbiter of credibility, it acted within its discretion in not crediting Landowner’s testimony that the non-use of the Property stemmed from Joe Timmer’s health issues rather than an intent to abandon. Here, the court found that pursuant to section 200-33F of the Zoning Ordinance, the property’s non-use as a picnic grove for more than 12 months gave rise to a rebuttable presumption of an intent to abandon. Since the Township met its burden in demonstrating abandonment, the court affirmed the trial court’s decision on that issue.

Landowner next argued that under section 200-33E of the Zoning Ordinance, a new owner of a property may continue a lawful nonconforming use as long as it reregistered the nonconforming use within 60 days of final settlement. While Landowner conceded that it did not reregister the nonconforming use of the property after it was purchased, Landowner still contended that under Pennsylvania law a zoning hearing board is prohibited from finding abandonment based solely on a purchaser’s failure to reregister a nonconforming use. However, since the Township did not appeal the Board’s decision, the issue regarding Landowner’s compliance with section 200-33E was found to be moot.

PAJ Ventures, LP v. Zoning Hearing Board of Moore Township, 2020 WL 355362 (PA Cmlwth 1/22/2020)

This post was authored by Matthew Loeser, Esq.

In 2015, a new Comprehensive Zoning Ordinance (“CZO”) became effective and changed the zoning of the plaintiff’s property from MS Medical District to HU-RD2 Historic Urban Two-Family Residential District. In this case, plaintiff claimed that he was not given due process notice of the zoning change, and only became aware of the zoning change when applying for a permit to use the property in a manner consistent with the MS Medical Service District zoning. Plaintiff further alleged that he was entitled to have his property revert to the MS Medical Service District as well as a refund of all taxes, interest, and penalties paid based on the value of the property with MS Medical Service District zoning.

The court first noted that the Fifth Circuit held that the Tax Injunction Act was a broad jurisdictional impediment to federal court interference with the administration of state tax systems. Thus, to the extent plaintiff sought to enjoin, suspend or restrain the assessment, levy or collection of any tax under Louisiana law, the Tax Injunction Act precluded the court from exercising jurisdiction over this matter. Since the court did not have subject matter jurisdiction over plaintiff’s tax claims, the court did not reach the merits on defendant’s contention that plaintiff failed to join a necessary party related to the tax claims.

Defendant next claimed that plaintiff’s §1983 claim was barred because it was filed more than a year after plaintiff became aware of the 2015 CZO change in zoning on the property. The record reflected that the zoning change occurred in 2015 and plaintiff discovered the change in 2017. Despite this, plaintiff failed to file the complaint until May of 2019. Accordingly, the court held that plaintiff’s §1983 claims were barred, and defendant’s motion to dismiss was granted..

Ancira v City of New Orleans, 2020 WL 360510 (ED LA 1/22/2020)

This post was authored by Matthew Loeser, Esq

The Barberville Nature Preserve was an approximately 138–acre parcel of property owned and maintained by the Nature Conservancy as a designated “forever wild” natural resource area located within the Town of Poestenkill, Rensselaer County. In 2015, the Town Board of respondent Town of Poestenkill entered into preliminary negotiations with the Nature Conservancy for the potential ownership of the preserve. The Town Board classified the land acquisition as a type I action pursuant to the State Environmental Quality Review Act, since it involved the acquisition of over 100 contiguous acres of land, and designated itself as lead agency and prepared a full environmental assessment form (“EAF”). At the following Town Board meeting, the Town Board reviewed the completed EAF and issued a negative declaration, concluding that acquisition of the nature preserve would have “no adverse environmental impact.” The petitioners commenced this CPLR article 78 proceeding seeking to rescind the Town Board’s negative declaration for failure to comply with SEQRA. The Supreme Court of New York held that petitioners lacked standing, dismissed the petition, and granted respondents’ counterclaim for a declaratory judgment.

On appeal, petitioners first argued that the Town, in conducting its SEQRA review, failed to consider the impact of increased motor vehicle and pedestrian traffic and/or the environmental effect that a newly proposed parking lot and hiking trail would have on the nature preserve. Assuming, without deciding, that petitioners adequately established their ownership interest in the property directly adjacent to the nature preserve, the court found petitioners’ position as adjacent landowners did not automatically confer standing on them to challenge the Town Board’s negative declaration. Specifically, petitioners failed to allege any unique or distinct injury that they would suffer as a result of the Town’s proposed land acquisition that was not generally applicable to the public at large. Furthermore, the alleged injuries claimed by petitioners did not directly arise from the Town’s potential land acquisition, but instead involved conditions that had preexisted the subject acquisition for decades.

The record reflected that, in conducting its SEQRA review, the Town Board prepared a full EAF indicating that the subject land acquisition presented no zoning changes and no substantial changes in the use of the property. The EAF further established that the relevant environmental concerns were reviewed and considered. Specifically, the only anticipated impact on the land would be the construction of a parking area of less than one acre, creating an additional 6 to 10 parking spaces, which was found to not substantially increase noise or use of the nature preserve nor substantially impact the nature preserve’s ecological system. Additionally, Town Board took comments from concerned citizens, including petitioners, during various Town Board meetings in which the proposed land acquisition was discussed. As such, the court found that the Town complied with its obligations under SEQRA. Accordingly, the court held that the Supreme Court of New York properly granted respondents’ counterclaim declaring its negative declaration to be lawful and proper.

Hohman v. Town of Poestenkill, 2020 WL 20407 (NYAD 3 Dept. 1/2/2020)

This post was authored by Matthew Loeser, Esq.

In 2004, Congregation Rabbinical College of Tartikov, Inc. (“TRC”) purchased approximately 100 acres of land in the Village of Pomona, a small suburban village of about 3,200 people. In 2007, a local group published an article purporting to reveal that TRC’s plan was to build nine large apartment buildings to house 1,000 students and their families, for a capacity of 4,500 people, as well as a school building. In response, the Village board enacted two amendments to its land use laws limiting or outright prohibiting whatever development TRC ultimately might seek to build. TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees, and sought to declare these two amendments unconstitutional. Tartikov also challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying New York State and local laws that otherwise would apply. The Village appealed this decision.

At the outset, the court addressed the matter of standing. First, Tartikov’s equal protection claims under the federal and New York constitutions and its nondiscrimination and equal terms claims under RLUIPA were all based on the alleged invasion of Tartikov’s right to be free from state discrimination or unequal treatment under the law on the basis of religion. The court found “stigmatizing members of a disfavored group as innately inferior and therefore as less worthy participants in the political community” was an actual and concrete injury sufficient to confer standing. Thus, Tartikov had standing to pursue equal protection claims under the Fourteenth Amendment of the federal and New York constitutions as well as nondiscrimination and equal terms claims under RLUIPA. Next, Tartikov’s First Amendment free exercise, free speech, and free association claims under the federal and New York constitutions, RLUIPA substantial burden and exclusion and limits claims, FHA claims, and common law claims related to the Berenson doctrine all arose from the alleged infringement of the free exercise of its religion by regulation of the use of its property. However, because Tartikov never submitted a formal proposal for the building project, applied for a permit, or engaged in any other conduct that would implicate or invoke the operation of the challenged zoning laws, the court lacked jurisdiction over this second group of claims.

While the court agreed with the district court that the timing of the 2001 Law was “in direct response to YSV’s desire to build an Orthodox yeshiva on the Subject Property,” it found the Village’s choice to act in response to YSV’s informal proposal did not speak as to whether that choice was motivated by a positive, negative, or neutral reaction to YSV, its religious character, or its project. Mark Healey, the FPC representative present at the meeting regarding Local Law No. 1 of 2001, stated the Village could craft requirements that “wouldn’t restrict [YSV] from doing what they want to do but … would assure the Village that they’re not going to go down the road and develop a lot more in the future.” The district court premised its animus holding also on the Village’s lack of opposition in 1999 to an assisted-living facility to be built on the “Anna Mann” property; however, the record did not contain any evidence as to the size, resident population, or scope of the proposed facility. As such, there was no basis for comparing the yeshiva proposal with the assisted living facility. The court next found that Local Law No. 5 of 2004, in fact liberalized several features of the then existing zoning law by: allowing dormitories, easing some restrictions related to acreage and road access, and not adding any new restrictions and did nothing to tighten existing restrictions or requirements. Accordingly, the court reversed the finding of discriminatory animus as to these two Local Laws.

Regarding the Local Laws Nos. 1 and 5, passed in 2007, the court first noted that by this time Sanderson rose from deputy mayor to mayor and Louie and Yagel, who had not previously served on the board, became trustees. All three of these individuals ran on a platform opposing the TRC project. Additionally, the 2007 Dormitory Law and the 2007 Wetlands Law differed from the 2004 Law in that both 2007 Laws tightened, rather than loosened, restrictions on building schools in the Village. Viewing the record as a whole, including “the series of events” leading up to the adoption of the 2007 Dormitory Law, the “context in which the decisions” regarding the law were made, and “statements made by the decision making body and community members,” the court declined to find that the district court clearly erred in finding that religious animus was a “significant factor in the position taken by those to whom the decision-makers were knowingly responsive.” Thus, notwithstanding that there was little or no direct evidence of any personal religious bias on the part of the trustees who passed these laws, the court found no clear error in the district court’s findings with respect to the 2007 Dormitory and Wetlands Laws.

The court next analyzed whether the district court clearly erred in holding that the 2007 Dormitory and Wetlands laws had a discriminatory effect on Tartikov. The court found there was sufficient basis in the record to conclude that on-campus housing of the nature Tartikov sought was important to the exercise of Tartikov’s faith as it would allow students to be near their families while maintaining a diligent study schedule. As to the 2007 Wetlands Law, the district court found that its two provisions working in tandem prevented construction of a TRC-like project anywhere in Pomona. Specifically, the 10 net acre minimum lot size for educational institutions ensured that TRC’s lot was the only site in Pomona large enough for the proposed college, and the required 100-foot buffer between constructed features and wetlands guaranteed TRC could not build on the property, since the only suitable location for a driveway fell within 100 feet of wetlands. Accordingly, the court upheld the district court’s holding that the 2007 Dormitory and Wetlands Laws had a discriminatory effect on Tartikov.

As to the remedy imposed by the district court, the injunction required the Village to exempt TRC from any special permit or variance requirements, process its application expeditiously, and perform “segmented review” of the application because “such a review will be more protective of the environment.” The district court also prohibited the Village from enacting laws similar to the four challenged laws and retained jurisdiction over any and all additional remedies sought by Tartikov consistent with the judgment and injunctions. Here, however, the requirement that the agency tasked with reviewing any TRC application engage in segmented review would take away authority that New York delegates to the reviewing agency. Moreover, much of the injunctive relief was purely speculative as TRC had not yet submitted an application for its rabbinical college, and the Village had not taken any action suggesting it would fail to follow the law in processing its application. Accordingly, the court affirmed the enjoinment from enforcing the 2007 Wetlands and Dormitory Laws, but vacated the majority of the additional relief imposed by the district court.

Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 945 F.3d 83 (2nd Cir. CA 2019)

This post was authored by Zoe Ferguson ’20, University of Georgia School of Law

In 2016, the City of Austin adopted a new ordinance amending its regulations on short-term rentals. In one section, the City created new classes of short-term rentals, distinguishing between single-family residences that are “owner-occupied or [are] associated with an owner-occupied principal residential unit” (Type 1) and those that are not (Type 2). Austin, Tex., Code §§ 25-2-788(A), 25-2-789(A). (A third category, Type 3, includes residences that are “part of a multi-family residential use,” id. § 25-2-790(A).) The ordinance ordered an immediate stop to the issuance of Type 2 operating licenses and required all such rentals to be terminated by April 1, 2022.

 

In another section, the ordinance banned broad swaths of assembly on any short-term rental property. This provision prohibited any assembly, indoors or outdoors, after 10 p.m.; any outdoor assembly of more than six adults at any time; and use of the property by more than six unrelated adults or ten related adults at any time.

 

Property-owning Austinites, including named plaintiff Ahmad Zaatari, promptly sued the City, claiming violations of the Texas Constitution. The State of Texas intervened, arguing the ban on Type 2 operating licenses was unconstitutional as an uncompensated taking and a retroactive law. The property owners and State moved for summary judgment, providing evidence for their motions, but the district court denied them, instead granting the City’s no-evidence motion for summary judgment. The State and property owners appealed.

 

The property owners had standing to bring constitutional claims on behalf of their tenants, and the court held in their favor, reversing the grant of summary judgment and remanding to the district court while upholding the rest of the ordinance. In Zaatari v. City of Austin, 2019 WL 6336186, the court held that the ban on Type 2 licenses was unconstitutionally retroactive and the assembly restrictions violated Texans’ right to peaceable assembly.

 

First, the court decided that the ban on Type 2 rentals was unconstitutionally retroactive because it served minimal public interest, if any, and significantly impaired Austinites’ fundamental property rights. The court stated that “nothing in the record” implied the ban would “resolve or prevent” the City’s concerns– in fact, the City had never issued any relevant citations before enacting the ordinance. Nor did the ban did not advance any zoning interests, since short-term rentals are just as residential in nature as owner-occupied homes. The ban would result in a loss of income for property owners who rely on short-term leasing, which even the City admitted is an “established practice” and “historically. . . allowable use.”

 

The City’s restrictions on assembly, without regard for the peacefulness of or purpose for an assembly, also violated Texans’ constitutional rights. Interestingly, the court noted that the restrictions violate both rental owners’ and tenants’ right to assembly, stating Texans have a fundamental right “to physically congregate, in a peaceable manner, for their shared welfare or benefit,” a right that is especially strong on private property.

 

This holding helps fill a gap in Texas jurisprudence about the state constitution’s assembly clause. Examining the text on its own, the court held that Texans have a right to assembly of any kind, political or not, since the plain text creates two distinct rights of assembly and petition. The court also held that the assembly restrictions infringed not only on Austinites’ state-guaranteed right to due course of law, but also on their First Amendment right to assemble on private property.

 

Zaatari v. City of Austin, 2019 WL 6336186 (TX App. 11/27/2019)

This post was authored by Matthew Loeser, Esq.

Appellants Fuller Style Inc. and Steady Floats Inc. filed three land use petitions challenging the City of Seattle’s Department of Construction and Inspections’ (“SDCI”) orders. The SDCI had determined that the replacement of previously existing floating on-water residences (“FOWRs”) constituted substantial development under the Shoreline Management Act of 1971 (“SMA”), chapter 90.58 RCW, and the City’s corresponding Shoreline Management Plan (“SMP”). The SDCI further found that the replacements were not subject to the normal maintenance or repair exemption from shoreline substantial development permit (“SSDP”) requirements. As such, the SDCI required Fuller Style and Steady Floats to obtain SSDPs to replace the existing FOWRs. Fuller Style and Steady Floats consolidated their land use petitions in the Superior Court, which upheld the SDCI’s orders.

 

On appeal, Fuller Style and Steady Floats contended that the SDCI erred in finding that SSDPs were required for each of the FOWR replacements. Specifically, they claimed the replacements did not constitute developments for which SSDPs were required. The court found that the term “Development” meant a use consisting of “the construction or exterior alteration of structures, placing of obstructions; or any project of a permanent or temporary nature that interferes with the normal public use of the surface of the waters.” Here, the undisputed facts reflected that each replacement structure at issue differed substantially from the existing FOWR it would replace: three replacement FOWRs were taller, larger, and shaped differently than the pre-existing FOWR. Thus, the court found that the City’s determination that replacement of the existing FOWRs constitutes construction or exterior alteration was neither an erroneous interpretation of the law nor a clearly erroneous application of the law to the facts. Fuller Style and Steady Floats further argued that even though the replacement FOWRs were developments, they were not developments within the shoreline. The court found that despite there being no physical construction within the Shoreline District, it did not follow that no development would occur within the shoreline.

 

Fuller Style and Steady Floats lastly argued that there was an absolute right to replace, expand, and relocate structures. As the court noted, however, Fuller Style and Steady Floats failed to cite any authority supporting the conclusion that permitting requirements were inconsistent with their rights. Additionally, the City did not contend that every time a FOWR is relocated it will need an SSDP, but instead that if a relocation fell within the definition of development, such as by substantially changing the views or obstructing normal public use where it previously was not obstructed, then a permit would be required. Accordingly, the court affirmed, holding that the City properly required SSDPs for these replacement FOWRs.

 

Fuller Style, Inc. v. City of Seattle, 454 P.3d 883 (2019)

 

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