This post was authored by Amy Lavine, Esq.

A Massachusetts case decided in August considered the Town of Nantucket’s zoning definitions for “hot tub/spa” and “swimming pool.” Specifically, the zoning code defined a “hot tub/spa” as a structure with less than 150 square feet of surface area and more than two feet of depth, while a “swimming pool” was defined as a structure either with more than 150 square feet of surface area or containing more than 1,000 gallons of water. The definitions created a dilemma because a structure “could at the same time have less than 150 square feet of surface area and contain more than 1,000 gallons of water, thus being at the same time a spa and a pool.”

The court determined that the 1,000 gallon threshold in the “swimming pool” definition should be read into the definition for a “hot tub/spa.” As the court explained: “Restricting what constitutes a “Hot Tub/Spa” by interpreting the statute’s independent clauses in the definition of a “Swimming Pool” does not make the statutory definition of a “Hot Tub/Spa” entirely meaningless or dubious…. The practical effect of interpreting the definition this way would allow for both definitions to continue to exist without the court having to substitute its judgment for that of the town.”

The court also observed that its interpretation was consistent with the context of the zoning code as a whole, since the prohibition of pools in the historic disrict suggested that the town’s intent was to “prevent pools in the [historic] district because of their size—either due to large surface area or large volume.” Finally, the court dismissed the argument that it should follow the town’s previousdetermination that applied the “hot tub/spa” definition to another property, since the property owners in this case were not challenging that previous determination and rather sought a decision as to how the code should be interpreted as applied to their property. The previous determination, the court explained, “provides insight into the view of the town generally but does not address the specific question regarding how these definitions apply to the potential future use of their properties.”

Bartlett v. Town of Nantucket, 2022 WL 3335657 (Mass. LCR 8/12/22).

This post was authored by Amy Lavine, Esq.

The petitioner had requested variances from several different zoning requirements, including the regulations for lot area, lot frontage, front yard setbacks, rear yard setbacks, and minimum and total side yard setbacks, which it needed so that it could build a single faming home. The board of zoning appeals (BZA) denied its request for area variances, however, and the Second Department affirmed the BZA’s denial on appeal. As the court explained, there was sufficient evidence to support the BZA’s determination that there would be an undesirable impact on the character of the neighborhood if it granted the variances, since it would be inconsistent with the pattern of development on nearby properties with respect to lot area and frontage. The court also distinguished the petitioner’s property from certain other nearby parcels that were similar in size because those lots had been “created out of necessity due to environmental constraints not present on the petitioner’s property.” Additionally, the court found that the requested variances were substantial, since the petitioner needed a total of six variances for its development proposal and because the lot area and lot frontage variances amounted to 80% and 54% deviations, respectively. Finally, the court noted that feasible alternatives to the variances were available, mentioning specifically that the petitioner could avoid the need for variances by acquiring adjacent undeveloped property.

Matter of White Birch Circle Realty Corp. v DeChance, 2023 NY Slip Op 00216 (NY App Div 2d Dept 1/18/2023)

This post was authored by Amy Lavine, Esq.

A New York appellate court held in December that the Oneida County Industrial Development Agency (IDA) had no authority to condemn property for a hospital parking lot.The court explained in a rather cursory opinion that under the IDA’s enabling legislation, its “statutory purposes”—and thus its use of eminent domain—were restricted to the development of “commercial facilities.” The court noted that “healthcare-related facilities” weren’t included in any of the IDA’s statutory purposes and then concluded that the proposed condemnation would not be for a “commercial purpose” because the property wasn’t being condemned solely for a surface parking lot but rather “because it was a necessary component of a larger hospital and healthcare facility project.”

Judge Curran disagreed with the majority’s decision and offered a persuasive dissent. As he argued, the court failed to give any deference to the IDA’s determination that its use of eminent domain was for a lawful purpose within the bounds of its statutory authority, nor did the court make any finding that the IDA’s determination was arbitrary, irrational, or that it lacked any reasonable basis. In Judge Curran’s opinion, the result was a de novo ruling that “entirely supplanted” the IDA’s exercise of its administrative authority.

Judge Curran also emphasized that administrative deference was required under the court’s precedents with respect to “an agency’s interpretation of a broad ambiguous statutory term,” and a decision issued by the court in 2017 was particularly on point, as the court in that case had deferred to another IDA’s determination that granting tax subsidies to a resort and casino was for a lawful “commercial” purpose as authorized under another provision in the IDA enabling act. Matter of Nearpass v Seneca County Indus. Dev. Agency, 152 AD3d 1192 (NY App Div 4th Dept 2017). As Judge Curran explained: “Here, the majority fails to address Nearpass and ignores its obvious application to the resolution of this appeal. Although this case and Nearpass arise out of slightly different contexts—i.e., interpreting different provisions of the General Municipal Law—they both ultimately involve the same question of statutory interpretation in the context of administrative decision-making. As noted, they also both involve the same broad and ambiguous statutory term—i.e., the word ‘commercial.’ It would be one thing if the majority acknowledged Nearpass and explained why, despite that case’s central holding, OCIDA’s determination that the project here was ‘commercial’—i.e., its interpretation of General Municipal Law § 858—was irrational or unreasonable.”

Judge Curran also disagreed with the majority’s reliance on the absence of any specificreference to healthcare facilities in the IDA’s enabling legislation as a basis for its decision, since the IDA’s statutory grant of eminent domain was broad and whether or not a particular type of land use was expressly listed was irrelevant to determining whether or not any particular use of eminent domain would be for “commercial” purposes. Judge Curran also noted that “as OCIDA correctly contends, the [medical office building] that would be serviced by the subject property for the development of a surface parking lot is neither a ‘hospital’ nor a ‘health-related facility’ as those terms are generally understood…. It appears that, in its essence, the majority’s conclusion stands for the proposition that, if a proposed parking lot is part of a hospital’s or heathcare-related facility’s campus, however tangentially, an industrial development agency may not utilize its eminent domain power to acquire property for that purpose because a ‘hospital’ or ‘health-related facility’ is either not among the broadly defined purposes in section 858 or is somehow excluded from them. I know of no principle of statutory construction, or any precedent, that supports such a conclusion and I respectfully decline to follow it.”

Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 2022 NY Slip Op 07327 (NY App Div 4th Dept 12/23/22)

This post originally appeared in Municipal Minute by Julie Tappendorf, Esq. of Ancel Glink and is reposted with permission.

We have written a number of posts on Municipal Minute discussing the U.S. Supreme Court’s rulings in cases challenging municipal sign codes under the First Amendment. In 2015, we reported on the Court’s decision in Reed v. Gilbert that struck down the Town of Gilbert, Arizona’s temporary sign regulations. The Reed case had subsequently been applied by a number of courts across the country in challenges to municipal sign regulations where sign companies and others made an argument that the challenged regulations treated signs differently based on content, even where a regulation appeared to target sign location (i.e., on-premises versus off-premises signage) rather than the content of the sign itself. 

In April of 2022, we reported on the U.S. Supreme Court’s ruling in National Advertising of Austin v. Austin where the Court upheld a City of Austin, Texas ordinance that distinguished between on-premises and off-premises signs, finding that the locational regulation was more in the nature of a time, place, and manner restriction rather than a restriction on the content or message of the sign. The Court rejected the argument that if an official had to read the sign to determine whether it was on-premise or off-premise (i.e., a “need to read” regulation), then it was a content-based regulation, holding that this interpretation of Reed was too extreme. 

Just last week, the Seventh Circuit Court of Appeals (the federal appeals court covering Illinois and nearby states), issued a ruling in a billboard challenge consistent with the Austin case, upholding a Madison, Wisconsin ordinance that that prohibited digital billboard signs. In Adams Outdoor Advertising LP v. City of Madison, Wisconsin, the Seventh Circuit rejected the billboard company’s argument that Reed should control the outcome of the case. Instead, the Seventh Circuit relied on the more recent ruling in the Austin case to uphold Madison’s ban on digital off-premises signs as a content-neutral “time, place, or manner” regulation, finding that the regulation targeted the location of the sign, and not the content or message. The Seventh Circuit also noted that Madison’s stated government interests in promoting traffic safety and preserving visual aesthetics were significant government interests to support Madison’s digital sign ban. In sum, the Seventh Circuit rejected the billboard company’s challenge to Madison’s digital off-premises sign ban.

Posted by: Patricia Salkin | January 22, 2023

IL Appellate Court Holds City Immune From Tort Liability in Zoning Case

This post was originally published in Municipal Minute by Julie Tappendorf, Esq. of Ancel Glink and is reposted with permission

In Xochi, LLC v. City of Galena, the Illinois Appellate Court found the City immune from liability under the Tort Immunity Act for claims relating to a zoning approval relating to a cannabis dispensary and upheld the dismissal of the case against the City.

Xochi owned a building in the City of Galena which it agreed to lease to Veriflife, who intended to operate a cannabis dispensary. Verilife asked the City to complete a zoning form to certify that local zoning would allow a cannabis dispensary at the location, as required by the State of Illinois as part of Verilife’s state licensing application. Prior to Verilife’s request of the City relating to the zoning form, the City had granted zonign relief for a competitor dispensary operator (Fotis), to operate a cannabis dispensary at a location less than 1500 feet from the Xochi building. The City stated that it did not sign the zoning form for the Verilife’s facility because its facility would be within 1500 feet of the Fotis facility, which was prohibited by state and local laws. After the City refused to complete the form, Verilife terminated the lease. Xochi then filed suit against the City, claiming the City was negligent in not completing the form, thus depriving Xochi of the financial benefits of the lease with Verilife. The City filed a motion to dismiss, arguing that it was immune from liability under the Tort Immunity Act. The trial court ruled in the City’s favor and Xochi appealed.

The Appellate Court did not get into the merits of Xochi’s claims against the City, instead agreeing with the circuit court that Section 2-104 of the Tort Immunity Act precluded the City from liability. That Section provides as follows:

A local public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.

The Court found that the plain reading of this Section of the Tort Immunity Act applied because the City’s refusal to sign the zoning form for Verilife was a public entity’s “failure or refusal” to provide its “approval…or similar authorization.” As a result, the City was immune from Xochi’s tort claims and the case was properly dismissed.

Posted by: Patricia Salkin | January 21, 2023

UCLA Extension’s Annual Land Use Conference This Week

UCLA Extension’s annual Land Use Law and Planning Conference is the leading networking event and source of information on California land use legislation, case law, and the emerging issues that frame land use and development practices in the nation’s most populous state.

The program’s unique cross-disciplinary approach explores the full range of perspectives drawn from land use planning, legal, development, and environmental communities, and demonstrates how these factors influence the day-to-day work of planners, developers, environmental regulators, and attorneys.

Now in its 37th year, the UCLA Extension conference offers a big-picture view of land use law and planning practice, with knowledgeable speakers providing succinct and provocative updates on core state and federal case law and legislation, as well as practice pointers on basic land use law and planning issues for practitioners and scholars. 

Who should attend?

All individuals involved in land use and environmental issues in California, including:

  • Public officials & planners
  • Attorneys & consultants
  • Developers & real estate professionals
  • Students interested in planning and public policy

Join Us!

three people in business attire

Date & Time
Friday, January 27, 2023
8:30am–4:30pm PT

Omni Los Angeles Hotel at California Plaza
251 South Olive Street
Los Angeles, CA. 90012

Registration Fee

For more information and to register visit this link:

This post was originally published on the RLUIPA Defense blog by Evan Seeman, Esq. and Madeleine Laffitte, Esq. of Robinson Cole and is reposted with permission.

On December 30, 2022, a district court dismissed a Catholic high school’s RLUIPA challenge, granting summary judgment on all claims in favor of the City of Madison, Wisconsin and various other city officials (the City). As ruled by the court, the City did not discriminate against Edgewood High School of the Sacred Heart, Inc. on the basis of religion when it denied Edgewood’s latest conditional use permit application for outdoor lighting at the school’s athletic fields. Edgewood’s attempt to install outdoor lighting in order to use its own fields at night, instead of using a field located a 15-minute drive east of its campus, proved unfruitful.

The court first ruled that Edgewood could not establish a violation of RLUIPA’s equal terms provision.  In the crucial absence of any evidence that the City treated a similarly situated secular school more favorably (i.e., by allowing outdoor lighting for athletic fields), Edgewood could not establish that it was discriminated against on the basis of religion. The court noted the complete dearth of evidence that the City acted with religious animus.  Rather, in upholding the Plan Commission’s denial of Edgewood’s conditional use permit application, the Common Council relied on the neighbors and neighborhood associations’ testimony and sound studies. These studies showed that the proposed addition of lights and sound equipment would greatly increase the noise levels, which were already deemed to be excessive and disturbing. The court agreed that the Common Council’s reference to noise and light disturbances, in addition to the potential detrimental effect on property values and the existing doubts regarding Edgewood’s ability to comply with suggested limits, constituted substantial evidence supporting the Common Council’s ultimate decision on appeal.    

Edgewood’s substantial burden claim fared no better.  The court stated: “Even if the court were to assume that night football (as opposed to a variety of sports conducted in gym classes and at practices) is an important element of Edgewood’s religious exercise, which is certainly not a given, plaintiff offers no evidence that it is substantially burdened by having to play night home games at a different field.” The court also rejected Edgewood’s free speech and free exercise claims.

Beyond the resolution of the RLUIPA issues, the permitting background leading to Edgewood’s filing of the complaint should also serve as a cautionary tale for both religious and secular institutions. When the City of Madison enacted Campus-Institutional Districts in 2013, existing educational institutions were given the choice to adopt a Master Plan or remain subject to their existing zoning district. Edgewood chose to participate and filed its Master Plan in 2014. While the Master Plan identified the existing athletic field use as an “athletic field owned by Edgewood High School [and u]sed for team practices, physical education classes,” it missed the opportunity to expand the description to anticipate greater use of the field. For instance, it could have described the field as a “major event facility” like UW-Madison [a secular school] had done in its own Master Plan for its tennis stadium or considered adding the possibility of the field’s expansion in any proposed developments description in the Master Plan. This unfortunately proved to be a costly error for Edgewood, as evidenced in the court’s decision.    

The decision in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, No. 21-CV-118-WMC, 2022 WL 18024626 (W.D. Wis. Dec. 30, 2022) is available here.

This post was originally published on the RLUIPA Defense blog by Evan Seeman, Esq. of Robinson & Cole, and is reposted with permission.

A district court has ruled that the City of Meriden, Connecticut (the City) discriminated against Omar Islamic Center Inc. following the City’s denial of the Islamic Center’s application to move its mosque to another location. The Islamic Center (the Center) outgrew is prior location – a 1,200 square foot space above a pizza restaurant in a neighboring city – and was unable to accommodate the members of the congregation, the number of students interested in its Quran and Islamic Studies classes, and the requirements that men and women separate for prayer and for ritual washing before prayer. The Center found a new site for its mosque at 999 Research Parkway, in the City’s M4 Planned Industrial District. But its special permit application was denied. On cross motions for summary judgment, the court held that the City’s zoning regulations violated the U.S. Constitution’s Free Exercise and Equal Protection Clauses by treating comparable secular uses better than religious uses.

While the case was pending, the City amended its zoning regulations in an attempt to moot the religious group’s claims. The court sided with the City that the amendment rendered moot the declaratory relief sought by the Islamic Center – a declaration that the zoning regulations were facially discriminatory – because declaratory relief applies only prospectively.  However, the court determined that the regulatory amendment did not render moot the Islamic Center’s claims for damages. The court concluded that the Islamic Center was entitled to damages incurred as a result of the City’s facially-discriminatory regulations. It then held that the City’s zoning regulations were discriminatory because they allowed hotels, motels, convention centers, theaters, different types of shops, stores, and service establishments (bakeries, restaurants, and theatres), as well as institutional, public, and municipal buildings to operate as-of-right in the district, but required a place of worship to obtain a special permit in order to do so.

The City, however, prevailed on the state law Connecticut Religious Freedom Act (CFRA) claim. Because the construction of a house of worship does not constitute religious exercise under the CFRA, the court entered summary judgment in favor of the City. Finally, the court denied summary judgment on all RLUIPA claims as there was a factual dispute as to whether the Islamic Center had a sufficient property interest under the Religious Land Use and Institutionalized Persons Act statute to proceed.

The decision in Omar Islamic Center Inc. v. City of Meriden (D. Conn. 2022) is available here.

Tuesday, February 7 and Wednesday, February 8, 2023
Tuesday, February 14 and Wednesday, February 15, 2023

This Annual Land Use Institute program is designed for attorneys, professional planners, and government officials involved in land use planning, zoning, permitting, property development, conservation and environmental protection, and related litigation. It not only addresses and analyzes the state-of-the-art efforts by government to manage land use and development, but also presents the key issues faced by property owners and developers in obtaining necessary governmental approvals.

This outstanding program features:

• Preeminent faculty of practitioners and academics who provide nationwide perspective without losing sight of state-specific issues.
• Critical review and analysis of the most important new cases; 
• Practice-oriented discussion of basics and “hot” topics;
• Guidance on routine and complex procedural issues; and
• Substantial high-quality and well-researched course materials.

Case Law Update on Planning, Land Use, and Eminent Domain Decisions

  • Federal Laws, Regulations, and Programs Affecting Local Land Use Decision-Making
  • Keynote on “Theft, Extortion, and the Constitution: Land Use Practice Needs an
    Ethical Infusion”
  • Housing Issues: Group Homes, Accessory Dwelling Units (ADUs), and Affordable
    Housing Roadblocks
  • Addressing the Challenges of Climate Change, Wind Energy and Infrastructure Needs
  • Land Use Considerations When Dealing with Marijuana Laws, Drive-throughs, Sidewalk Cafes
    and Food Trucks, and the Use of Eminent Domain for Development and Redevelopment
  • Ethical Considerations for the Land Use Practitioner and Government Lawyer
  • Diversity, Inclusion, and Bias Considerations for Practitioners

Speakers Include:

Frank Schnidman, Land Use Institute Chair, DeLand, FL
Patricia E. Salkin, Land Use Institute Co-Chair; Touro University, New York, NY
Elena B. Langan, Touro Law Center, Central Islip, NY
Michael Berger, Manatt, Phelps & Phillips, LLP, Los Angeles, CA
Paul Boudreaux, Stetson University College of Law, Gulfport, FL
Amy Brigham Boulris, Gunster, Miami, FL
Hon. Peter Buchsbaum, New Jersey Superior Court (ret.), Stockton, NJ
Jennifer Casey, Suffolk County Planning Commission, Huntington Station, NY
Alyse Delle Fave, Rigano LLC., Melville, NY
Erica Edwards-O’Neal, New York Road Runners, New York, NY
Richard Eisenberg, Meyer, Suozzi, English & Klein, P.C., Garden City, NY
Beth Gazes, Taylor, Eldridge & Endres, PC, Smithtown, NY
W. Andrew Gowder, Jr., Austen & Gowder, LL.C., Charleston, SC
Graham C. Grady, Taft Stettinius & Hollister LL.P., Chicago, IL
Gideon Kanner, Loyola Law School, Los Angeles, CA
A. Thomas Levin, Meyer, Suozzi, English & Klein, P.C., Garden City, NY
Michael Lewyn, Land Use Institute Director; Touro Law Center, Central Islip, NY
Daniel R. Mandelker, Washington University School of Law, St. Louis, MO
Dwight Merriam, FAICP, Attorney at Law, Weatogue, CT
Jim Montes, Touro Law Center, Central Islip, NY
Stephen R. Romine, Williams Mullen, Virginia Beach, VA
Deborah Rosenthal, Fitzerald Yap Kreditor, LLP, Irvine, CA
Julie Tappendorf, Ancel Glink, P.C., Chicago, IL
Robert H. Thomas, William & Mary Law School, Williamsburg, VA
Susan Trevarthen, Weiss Serota Helfman Cole+ Bierman, Fort Lauderdale, FL
Michael Allan Wolf, Prof. of Law, University of Florida, Gainesville, FL
Lai Sun Yee, CNA Corporation, Brooklyn, NY
Richard J. Zapolski, Cameron Engineering, New York, NY

Posted by: Patricia Salkin | December 5, 2022

NY Appellate Court Upholds Damages for Partial Takings

This post was authored by Ashlee Vega- Slattery, Touro University Jacob D. Fuchsberg Law Center

The question in 20 Rewe Street, LTD v State of New York is whether a landowner was adequately compensated by the State for the partial taking of their Brooklyn property. The property, located in a manufacturing/industrial zone and totaling 39,900 square feet, was primarily unimproved; it consisted only of a concrete wall and chain-link fence, and was used for storage and parking. In January of 2012, the New York State Department of Transportation seized 27,041 square feet of the northern side of the property, leaving 12,859 square feet to the landowner. The landowner subsequently filed a claim seeking damages as just compensation for the partial taking.

The landowner and the State each hired an appraisal firm, and each firm reached a different value, using distinct methods of approach to the valuation. The Court of Claims believed that the State’s appraiser’s approach to valuation was more persuasive than that of the landowner’s appraiser. The court also rejected the time, zoning, and size adjustments made by the claimant’s appraiser, as they were not supported by the evidence. The claimant’s challenges to the State’s comparable sale properties were not particularly compelling to the court either. The court entered judgment for damages in the amount of $3,310,500.00; the award was based on the pre-taking value of the property, $4,389,000.00, along with an upward modification to account for a mistake in the appraiser’s access adjustment. The landowner appealed to the Appellate Division.

The Takings Clause of the Fifth Amendment provides that “private property shall not be taken for public use, without just compensation.” With respect to a partial taking, damages are measured by the difference between the value of the whole prior to the taking and the value of the remainder after the taking. Damages may be direct, indirect, or consequential. The Appellate Division, quoting Lerner Pavlick Realty v. State of New York (an earlier case it decided, in which it held that an award to a landowner who sued for consequential damages resulting from a fee taking and temporary easement to construct a highway was adequate, but subject to an offset for any enhancement), maintained that consequential damages are, “measured by the difference between the before and after values, less the value of the land and improvements appropriated.” An award must also be within the range of expert testimony or supported by other evidence and explained by the court. The appellate court further noted that a trial court’s explanation of an award that is supported by the evidence is “entitled to deference and will not be disturbed on appeal.”

The Appellate Division contends that the determination of the Court of Claims to side with the State’s appraiser was both supported by the record and adequately explained. Moreover, they noted that assessing the aptness of comparable sales is within the Court of Claims’ own discretion, and the sales selected were similar enough to serve as a guide to the market value of the property. The State’s appraiser’s explanation of the basis for his selection of comparable properties and relevant adjustments made to their valuation was adequate and credible. In addition, the rejection by the Court of Claims of certain adjustments made by the claimant’s appraiser was supported by the evidence. As such, the Appellate Division believes the court properly accepted the pre-taking value of the property proffered by the State’s appraiser, with an upward adjustment that was adequately explained.

Although the landowner asserted that the Court of Claims based its determination of the amount of consequential damages to the remainder property on a finding as to its highest and best use, it actually applied a percentage reduction to the value of the remainder parcel per square foot of floor area ratio, utilizing the higher 20% figure proffered by the State as an admission against the State’s interest. The landowner did not challenge the percentage diminution method applied by the court, and because the landowner proffered a lower diminution figure, it fell short of meeting its burden of establishing an entitlement to higher severance damages. Accordingly, the Appellate Division found that the determination of the Court of Claims to award $3,310,500 as just compensation for the taking was proper and not to be disturbed.

20 Rewe Street, LTD v State of New York, 2022 WL 4230493 (NYAD 2 Dept. 9/14/2022)

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