This post was authored by Tyler Doan, Esq.

Cook Communities (Cook) bought roughly 32.6 acres of land in Hall County to build approximately 200 attached townhomes. At the time of purchase, the land was zoned agricultural residential. Cook sought to have the zoning map changed and the property rezoned as planned residential development. Cook argued that a denial of its request would be “an unconstitutional restriction on the use of the property” and “abolish or damage [its] property rights” without fair and just compensation in violation of both state and federal constitutions. In January of 2022 the local planning commission voted to rezone the property with several conditions. The Hall County Board of Commissioners approved the rezoning with, as Cook stated “several new and amended conditions that constituted exactions requiring [Cook] to donate land for improvements off the property or not directly addressing traffic issues caused by the proposed redevelopment of the property such as installing turn lanes and imposing a unit per acre density far less than surrounding developments.” Cook filed a lawsuit in the superior court against the County and its Commissioners in their individual capacity seeking declaratory, injunctive, and mandamus relief and requested the zoning ordinance, as applied to Cook, declared Void and the property free of zoning restrictions. The County answered and moved to dismiss Cook’s complaint, arguing that the rezoning decision was judicial or quasi-judicial in nature and that Cook was therefore required to file an application for writ of certiorari rather than a direct action in superior court to challenge the decision. The superior court found that the zoning authority’s decision on rezoning the property was legislative and denied the County’s motion to dismiss. The County appealed to the current case.

In affirming the superior court, the Court of Appeals states that there are two types of Supreme Court of Georgia cases that control. One type is a case that involves “a constitutional attack against a zoning ordinance” in which the zoning authority acts in a legislative capacity when it amends an ordinance. The second type involves a situation where “a special permit is sought under terms set out in the ordinance” thus creating a quasi-judicial capacity to determine facts and apply the law. 

To determine that the County acted in a legislative the Court of Appeals states that the present case involves a constitutional attack against the challenged conditions that the County attached to the approval of the application to rezone. The Court further explained two cases previously determined in the Court of Appeals that provide examples of the two types of challenges to zoning authorities decisions as well as distinguishing a recent Supreme Court of Georgia case that could provide a counterargument to their decision. The Court reasoned in their distinguishment and denial to follow the Supreme Court that the decision did not explicitly overrule the existing precedent that a constitutional challenge to a zoning authority was a legislative act. Thus, “that this case is also controlled by existing precedent, and that under well-established law, the trial court did not err by denying the County’s motion to dismiss [Cook’s] complaint … since [Cook] was not limited to review of the zoning authority’s decision by writ of certiorari.”

Hall County v Cook Communities, 2023 WL 424612 (GA App. 6/29/2023)

This post was authored by Sebastian Perez, JD

The question before the Court of Appeals of Georgia (the “Court”) was at what point a landowner had vested rights in real property where Plaintiff purchased the subject property (the “Property”) to develop 9,000 square foot lots when the county’s zoning code (the “Code”) allowed for such density at the time but was later amended to require larger sizes. After the county, where the Property was located, passed, and extended a moratorium on processing land disturbance permits, the Plaintiff’s application to develop the Property was returned due to the moratorium. Plaintiff sought an administrative determination by the county’s planning department (the “Department”), appealed to the zoning board of appeals (the “ZBA”), and then petitioned the Superior Court of Forsyth County (the “Superior Court”) that affirmed the ZBA’s ruling against Petitioner. The Court granted Plaintiff’s application for discretionary appellate review. 

On appeal, Plaintiff claimed the Superior Court erred in affirming the ZBA’s administrative decision that he had no vested right to develop his property under the zoning code that permitted his desired density. Plaintiff argued his rights were vested because (1) the purchase of the Property was made in reliance of assurances from the county that the Code permitted 9,000 square foot lots; (2) initiated a process to obtain sever easements under the original code; and (3) the county’s administrative procedure for determining vested rights lacked ascertainable standards or objective criteria for making that determination. Meanwhile, Carson also commenced a petition for mandamus against the county planning director and a technician in their department (the “Individual Defendants”) in their individual and official capacities where he sought an order declaring the moratorium void and directing the Individual Defendants to process his permit application. After a partial ruling in favor of the Individual Defendants, Carson amended his complaint to add claims for declaratory and injunctive relief and the trial court rejected the Individual Defendant’s argument for failure to exhaust administrative remedies; declared the moratorium valid and enforceable; required the Individual Defendants to accept the permit application for processing; and permitted the Individual Defendants to consider the moratorium when processing the application. 

In the first case on appeal, the Court began their analysis by acknowledging that there were four different scenarios where a landowner could acquire a vested right to initiate a specific use of a property right despite a change in zoning laws which included when the landowner relied upon (1) issued building and other permits, (2) the law in existence at the time a landowner properly applied for a permit, (3) formally and informally approval of development plans, or (4) official assurances that a building permit would probably issue. The Court noted that the fourth scenario was not applicable because of the lower court’s finding that no official assurances were made and affirmed that ruling. Carson then argued that the second scenario applied because of the steps taken towards obtaining a preliminary approval for sewer easements as a form of reliance upon the law in existence at the time the permit application was filed but the Court found no support for such claim in the record and determined he had not obtained vested rights in that manner. The Court then addressed Carson’s third argument and how the case law cited did not support a finding of vested rights due to procedural deficiencies in the zoning code because the ZBA had not exercised discretion in its decision and instead used its inherent power to interpret the Code. In the second case on appeal, the Court concluded that the action was not barred by Carson’s alleged failure to exhaust administrative remedies, that the lower court properly found a valid moratorium existed when the permit application was filed, that the moratorium barred the county from accepting the permit application, and held Carson was not entitled to either a mandamus or injunctive relief. 

Therefore, the Court affirmed the lower court’s ruling that denied Carson’s claim for mandamus that required the Individual Defendants to process the permit application without consideration of the moratorium; but reversed the ruling which granted Carson’s claim for mandamus that required the Individual Defendants to accept the application for processing, and also reversed the ruling that granted Carson’s request for an injunction that prohibited the Individual Defendants from refusing to process the application.         

Carson v Brown, 883 SE2d 908 (GA App. 2/7/2023)  

Petitioners brought an Article 78 proceeding to annul the determination of the Erie Canal Harbor Development Corporation issuing a negative declaration pursuant to SEQRA with respect to a construction project and to annual the determination of the City of Buffalo that the project was consistent with the City’s Local Waterfront Revitalization Program and the City’s zoning ordinance.  However, the petitioner did not move for preliminary injunctive relief to enjoin the construction from continuing pending the litigation.  As a result, the appellate court dismissed the matter as moot since the construction had progressed to a point that is was now substantially complete.

In the Matter of League of Women Voters of Buffalo/Niagara, Inc. v Erie Canal Harbour Development Corporation, 2023 WL 4283549 (NYAD 4 Dept. 6/30/2023)

This post was authored by Tyler Doan, Esq.

Petitioner owns real property on a short dead end roadway in the City of Ithaca abutting Summit Avenue. An adjacent property, that Summit Ave is on, has been owned by various entities during the relevant period. In 2017, after the then owner of the subject property blocked a portion of Summit Ave on the property in preparation for constructing an apartment complex there, Petitioner commenced an action contending, among other things, that it had a right of unobstructed access to Summit Ave because the roadway was either a public street or subject to a right-of-way in its favor. In March of 2018 the Supreme Court determined that petitioner did not have an easement running over the southern portion of Summit Ave, which is the portion of the property that had been blocked. In December of 2019, Supreme Court granted a summary judgment dismissing the remaining causes of action and determining that Summit Ave was a private roadway and not a public street. In December of 2019, Petitioner appealed and the Third Department Appellate Division affirmed in May of 2021.

While the lawsuit was ongoing, an entity acting on behalf of Respondent, the then-owner of the subject property, sought an area variance allowing construction of structures on the subject property that deviated from the lot coverage and setback requirements of the City of Ithaca Zoning Ordinance. Respondent City of Ithaca ZBA granted the requested variance in October of 2019, prompting Petitioner to commence a CPLR article 78 proceeding against the ZBA and the then-owner of the subject property. The ZBA granted a second area variance in February 2020 that accounted for changes made to the project design to ensure that the City of Ithaca Fire Department could access the subject property. Petitioner then commenced a second article 78 proceeding challenging that determination. The then-owner and the ZBA separately moved, in lieu of serving answers, to dismiss the petitions. In October of 2020, the Supreme Court granted those motions. The ZBA granted a third area variance in April 2021 that also addressed lot coverage and setback requirements and was needed for a requested subdivision of the subject property and the issuance of a building permit. Petitioner commenced another article 78 proceeding to challenge that determination. Respondents and the ZBA separately moved to dismiss the petition in lieu of serving an answer. In August 2021 the Supreme Court granted those motions. Petitioner appeals both the October 2020 and the August 2021 judgments.

In determining the controversies were moot, the Appellate Division reasoned that since Petitioner made minimal efforts to maintain the status quo, including failing to secure its continued use of Summit Ave or stop construction, to the point that construction had been completed for some time and “much of it has been leased out and is occupied”, that the construction on the property cannot be undone without causing undue hardship to all involved, that there was no bad faith in the building of the apartment complex, and that a prior determination was made that Summit Ave was not a public street and that Petitioner does not have a right-of-way over the portion at issue, the controversies are moot and dismissed.

EPG Associates, LP v City of Ithaca Board of Zoning Appeals, 2023 WL 4239290 (NYAD 3 Dept. 6/29/2023)

This post was authored by Tyler Doan, Esq.

Petitioner owns property on one side of a road. Respondent owns roughly 6.8 acres across the road from Petitioner that contains a two-story 97 room hotel. Both properties are located within a Highway Commercial zoning district which exists “to encourage a full range of commercial activity along major highways.” The two properties are surrounded by other commercial properties.

In 2015 Respondent applied to the ZBA for an area variance to construct two new hotels on its property. In a determination dated January 28, 2016, the ZBA granted the variances. In a CPLR article 78 proceeding, the Supreme Court annulled the ZBA’s determination and remitted the matter to the ZBA for review pursuant to the State Environmental Quality Review Act. Respondent thereafter completed the environmental impact statement and the SEQURA process, ultimately obtaining a statement of findings from the Town Planning board in October of 2019 approving the proposed project. Respondent then reapplied to the ZBA for area variances for the two hotels. Hotel A is a five story 102 room hotel located 250 feet from the Petitioner’s property line, Respondent sought an area variance for its maximum building height. Hotel B is a four story 88 room hotel located approximately 1050 feet from Petitioner’s property line; Respondent sought three variances for Hotel B: a variance for maximum building height, for minimum side-yard setback, and for minimum total side-yard setback requirements. On November 25, 2019, the ZBA held a public hearing on the application during which Petitioner spoke in opposition. After the hearing in a determination dated December 9, 2019, the ZBA granted Respondent’s application for the area variances. Petitioner commenced the article 78 proceeding to review the ZBA’s determination. The Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed.

In affirming the Supreme Court’s decision, the Appellate Division reasoned petitioner lacked standing to contest the variances for Hotel B due to its location approximately 1050 feet from Petitioner’s property line, thus being too far to allow a presumption of an injury-in-fact. Further, the Court reasoned that the ZBA’s determination regarding the Hotel A variance was not arbitrary and capricious due to the ZBA engaging in the required balancing test and considering relevant statutory factors in granting the Hotel A variance. Additionally, the Court reasoned that the evidence before the ZBA supported its conclusion that the variance would not produce an undesirable change in the character of the neighborhood due to its location in a highly commercial zoning district, as well as the ZBA considering at least three alternatives and determining the proposed project minimized community and commercial effects with the fewest variance possible.

Nunnally v Zoning Board of Appeals of the Town of Windsor, 2023 WL 4219046 (NYAD 2 Dept. 6/28/2023)

This post was authored by Amy Lavine, Esq.

In Extenet Systems, LLC v. Village of Kings Point, the Second Circuit Court of Appeals affirmed the denial of eight residents’ motion to intervene in a lawsuit brought by ExteNet against the village for violations of the Telecommunications Act of 1996.

The court rejected the residents’ claims that intervention was necessary to protect their properties from the alleged aesthetic and economic impacts that would be caused by the installation of wireless cellular equipment on nearby properties. As the court explained, it was reasonable for the district court to conclude that the residents’ interests could be adequately represented by the village because the residents and the village shared “an identity of interests” in the outcome of the litigation. To overcome this identity of interest, the residents would have needed to rebut the presumption of adequate representation, which might be shown by evidence of “collusion, adversity of interest, nonfeasance, or incompetence.” On the record before the court, it found that the district court did not abuse its discretion in finding that the residents had not provided any such evidence to rebut their identity of interest with the village, nor was it error for the district court to determine that granting intervention “would not significantly contribute to the development of the underlying factual issues in the suit or the just adjudication of the relevant legal questions.”

In addition, the court found that the district court reasonably concluded that permitting intervention would prejudice ExteNet by unduly delaying the resolution of its claims, which were to be decided “on an expedited basis” under the Telecommunications Act.

Extenet Sys., LLC v. Vill. of Kings Point, 2023 WL 4044076 (2d Cir 6/16/23).

This post was authored by Amy Lavine, Esq.

In Lepper v. Scordino, the Second Circuit Court of Appeals affirmed the dismissal of selective enforcement and class-of-one equal protection claims involving a treehouse that was built without a permit.

The court first explained that on a selective enforcement claim, a plaintiff must show that “(1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.” Similarly, plaintiffs who allege class-of-one equal protection claims must show that they have “been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”

Under either equal protection test, the court found that summary judgment was properly granted because the property owner, Lepper, failed to identify any similar situated treehouse owners. Specifically, that the village hadn’t received complaints about any other treehouses, and Lepper’s treehouse was also the only treehouse that was built in violation of the applicable setback requirements. “At bottom,” the court concluded, “Lepper’s argument amounts to a claim that the village is unable to enforce its building code against the Leppers because it possibly failed to enforce the code against other treehouse owners. But the Equal Protection Clause does not require villages to enforce their ordinances in every instance in order to retain the ability to enforce them at all.”

Lepper v. Scordino, 2023 WL 4004220 (2d Cir 6/15/23).

Petitioner challenges the determination of the Town of Tonawanda (Town), which authorized the condemnation of property owned by petitioner following a pubic hearing. The property, situated along the Niagara River, includes a coal-fired electric generating station that was decommissioned in 2016 and water intake structures. Petitioner commenced proceeding No. 1 asserting that the Town failed to publish a brief synopsis of its determination and findings within 90 days as required by EDPL 204 (A) and asserting various other grounds for relief. Shortly thereafter the Town published its determination and findings pursuant to EDPL 204 (A)  and petitioner then commenced proceeding No. 2 asserting that the Town’s publication of its determination and findings was untimely under EDPL 204 (A) and otherwise asserting the same grounds for relief.

The appellate court  dismissed proceeding No. 1 finding it moot by the subsequent publication of that information. With respect to the merits in proceeding No. 2,the Court noted that EDPL 204 (A) provides that the condemnor, “within [90] days after the conclusion of the public hearings held pursuant to this article, shall make its determination and findings concerning the proposed public project and shall publish a brief synopsis of such determination and findings in at least two successive issues of an official newspaper if there is one designated in the locality where the project will be situated and in at least two successive issues of a newspaper of general circulation in such locality.” While the Court agreed that the Town’s publication of the synopsis was untimely because it was not made within 90 days following the hearing, the Court agreed with the Town that petitioner was not prejudiced by the delay, and the petitioner did not contend otherwise. Therefore the Court concluded that the error did not require it to reject the determination.

The Court rejected petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose, finding that the Town’s condemnation of the property serves the public uses of, inter alia, revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town.  The Court further rejected the petitioner’s  contention that the condemnation was excessive finding no abuse or improvident exercise of discretion by the Town in determining the scope of the.

As to the petitioner’s contention that the Town failed to comply with the segmentation requirements of the State Environmental Quality Review Act (SEQRA), the Court noted that “the Town determined that acquiring the property would not have any significant adverse environmental impacts and further stated its understanding that any future development or construction at the property would be subject to separate environmental review. There was no improper segmentation inasmuch as the Town ‘was not required to consider the environmental impact of anything beyond the acquisition.’”

Lastly the Court disagreed with petitioner’s contention that the Town’s stated purpose for acquiring the property manifests an intent to engage in constitutionally-prohibited private enterprise because the Town intends to sell the property to a private developer since “ ‘[t]aking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use.’”

Huntley Power v Town of Tonawanda, 2023 WL 3912499 (NYAD 4 Dept.2023)

This post was authored by Sebastian Perez, JD

Green Genie, Inc. (“Plaintiff”) commenced an action against the City of Detroit (the “City”) and various city agencies after the denial of an application to construct a medical marijuana distribution facility that would have been in a drug-free zone. The lower court had granted the City summary judgment and this appeal by Plaintiff followed.

The Court reviewed the lower court’s summary judgment award de novo and reminded that the movant needed to show no genuine issue of any material fact and an entitlement to judgment as a matter of law along with significant probative evidence that showed there was more than some doubt as to material facts which necessitated a trial or otherwise, dismissal would be warranted. Plaintiff asserted two claims on appeal: an alleged violation of its procedural and substantive due process rights and an equal protection claim. For Plaintiff to succeed on their first claim, they needed to show a deprivation of a constitutionally protected right—in this case, a deprivation of property. A legitimate claim of entitlement to the purported property interest, as opposed to an abstract need or desire, was required. What Plaintiff sought was a permit which the Court did not view as a protected entitlement because officials could have granted or denied it in their discretion and therefore decided no protected interest existed. To prevail on its second claim, Plaintiff needed to show that the City intentionally treated them differently from others similarly situated and there was no rational basis for the difference in treatment. The Plaintiff contended that its denied application underwent a different procedure than other dispensaries whose applications were approved to operate in a drug free zone. The Court disagreed and determined the different outcomes were due to idiosyncrasies, such as a tax lot that merged after the fact and an oversight in another application, instead of intentionally different treatment and concluded that Plaintiff had not met its burden.

Therefore, the Court affirmed the judgment of the lower court.

Green Genie, Inc. v City of Detroit, 63 F. 4th 521 (6th Cir. CA 3/21/2023)

This post was authored by Tyler Doan, Esq.

Petitioner appealed a decision of the town ZBA, town board, and related defendants challenging a dismissal by the ZBA of the challenge to the zoning enforcement officer’s determination that a proposed subsurface sewage-disposal system was a permitted nonresidential accessory use that could be located on a split lot (one zoned partly for residential and partly for commercial use). The town board, while the petition was pending, adopted a local law on the subject of subsurface systems on split lots that effectively codified the zoning officer’s determination. The petitioner amended their complaint also seeking to annul the local law claiming it violated the State Environmental Quality Review Act. The Supreme Court denied the amended petition and dismissed the proceeding. Petitioner appealed.

In affirming the dismissal of the of the amended petition, the Court reasoned because “[j]udicial review of a lead agency’s negative declaration is limited to ‘whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination’” and since the Town Board identified relevant areas of environmental concerns, took the requisite hard look at them, and made a reasoned elaboration for the basis of the determination, the negative declaration was not affected by an error or law, or arbitrary or capricious, or an abuse of discretion. Thus the portion of the complaint seeking to annul the local law was properly dismissed.

Further, the Court states that since the local law was codified, and is not annulled, the determination of the ZBA was correct.

Tampone v Town of Red Hook Zoning Board of Appeals, 215 A.D. 3d 866 (2 Dept. 4/14/2023)