Petitioner was the owner and developer of a proposed mixed-use development in the Village of Pittsford (Village). After conducting a SEQRA environmental review, the Board of Trustees (“Board”) declared that the project would not have a significant environmental impact and issued the requisite permits to the Petitioner. However, after the Board later approved a preliminary site plan, it determined that “substantive changes” had arisen creating a “potential significant adverse impact” on the environment. Petitioner commenced an Article 78 proceeding to reinstate the negative declaration. It argued that several members of the Board were biased against of project and should have been recused from the meetings and decision-making process.

The Appellate Court noted that two of the Board members had expressed opposition to the project before and after they were elected to the Board. However, the court held that their personal opinions were not a basis for finding a conflict of interest and thus they were allowed to participate in the deliberations and vote on the resolutions. In fact, the court suggested that public officials should be encouraged to voice their opinions in matters of public concern.

Pittsford Canalside Properties, LLC v. Vill. of Pittsford, 137 A.D.3d 1566, 1566 (N.Y. 4th Dept. 2016).

In 2014, Spinnaker Residential, LLC petitioned New Haven’s Zoning Commission, the Board of Alders, to amend the New Haven Zoning Ordinance Map to rezone properties and to amend the New Haven Zoning Ordinance. The legislation committee of the Board of Alders granted both requests. 78 Olive St. Partners, LLC appealed the Board’s decision because its property abutted Spinnaker’s properties and was therefore affected by the amendments.

As one of its arguments, 78 Olive St. argued that there was evidence of bias during the public hearing before the legislation committee when three members of the Board of Alders testified and/or wrote letters expressing their support for Spinnaker’s petitions. Specifically, 78 Olive St. stated that “[t]he participation of the Alders as advocates for the applicant in the process for Amendments on which they will vote as the Zoning Commission is unseemly at least.” However, the court rejected this argument and held that the members were not biased, as none of the members were actually part of the specific legislation committee that heard the petitions. Regardless, the court stated that the Board members had an “obligation to represent and advance position which they conclude will be in the best interests of their constituents,” which allowed them to express their support for the petitions. Therefore, the court held that members’ testimony and/or letters expressing support did not affect the petitions in a prohibited way.

78 Olive St. Partners, LLC v. City of New Haven Bd. of Alders, 2016 WL 3179433 (Conn. Super. 5/12/2016).


In 2014, St. Francis Home filed an application for a permit to build a single-family dwelling for terminally ill individuals and another application for a permit to construct a curb, sidewalk, and driveway entrance for this dwelling. Both permits were approved. Plaintiffs, who owned property neighboring the proposed dwelling, appealed the issuance of both permits. The zoning hearing board denied the appeal.

Plaintiffs appealed the board’s decision, alleging, among other things, that the Township Solicitor acting as an advocate for both the Township and St. Francis Home created an appearance of bias and/or impropriety, and that the zoning hearing board’s refusal to admit evidence regarding traffic congestion and decreased property values amounted to bias. The court held that because Plaintiffs did not object to the Solicitor’s statements regarding his own experiences at the hearing, they waived their argument regarding the Solicitor’s role. Additionally, the court held that the zoning board’s refusal to admit evidence regarding traffic and property values did not constitute bias and/or impropriety because such evidence was irrelevant to a case about the issuance of building and construction permits. Thus, the board’s decision to not admit this evidence was not improper.

Hartman v. Zoning Hearing Bd. of Cumru Twp., 133 A.3d 806, 807–08 (Pa. Commw. Ct.), appeal denied, 141 A.3d 483 (Pa. 2016).

Petitioners applied for a coastal development permit to authorize the demolition and replacement of a small home with a much larger home. The City of Morro Bay conducted an investigation and heard testimony regarding the proposed project and ultimately denied the application when it determined that the project would result in a home that was inconsistent with land use policies and ordinances. Petitioners argued that the mayor, who participated in the hearings, was biased against the project and thus made the hearings unfair. The court held that the mayor’s arguments did not constitute bias because the mayor legitimately questioned whether the permit would exacerbate already-existing issues, rendering the project incompatible with the rest of the neighborhood. The court reasoned that such concerns did not “constitute the sort of personal, political, or pecuniary bias that would undermine the integrity of the proceeding.”

Adamson v. City of Morro Bay, 2016 WL 7163985 (Cal.Super.7/22/2016)

William Gallo, who was appointed to serve on both the City of Lighthouse Point Planning and Zoning Board and the Broward County Historic Preservation Board, asked the Attorney General of the State of Florida whether this simultaneous appointment would violate the Florida Constitution’s prohibition against dual office-holding. The Attorney General answered in the affirmative, citing to the relevant section of the Constitution that provided “[n]o person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein.” She determined that because the Planning and Zoning Board had the power to grant variances and decide appeals and the Historic Preservation Board had the power to approve or deny certificates of appropriateness, both Boards were considered “offices” under the Florida Constitution, and Gallo was therefore not allowed to participate in both at the same time. If both Boards had only advisory capacities, then the Boards would have been excepted from the dual office-holding prohibition. However, though both had some advisory roles, the fact that they also had powers implying “a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office” led to the conclusion that the Boards were indeed offices under the dual-office prohibition.

Fla. Att’y Gen. Op. 2016-15 (2016)

The Ohio Attorney General opined that a person may serve simultaneously as 1) director of a regional planning commission and member of a village legislative authority, 2) director of a regional planning commission and member of a board of township trustees, 3) county planner and member of a village legislative authority, and 4) county planner and member of a board of township trustees, so long as no contract exists between the two authorities in which an individual has simultaneous positions. Additionally, for each of the above simultaneous positions, if the individual is a state or local employee who is paid by federal loans or grants in one position, then that individual may only serve simultaneous positions only if she seeks election to the other position in a nonpartisan election.

2016 Ohio Op. Att’y Gen. No. 2016-034 (Oct. 4, 2016)

In response to a hypothetical inquiry to the Attorney General in which a person simultaneously serves as an elected member of a school district board of directors and also as a member of the local city planning commission, the Attorney General opined that the two positions were probably incompatible offices because “a person holding both offices could face inconsistent loyalties to the public in different capacities.” For example, if the individual as a school director makes decisions regarding the use of school district property, that same individual in the role of planning commissioner may be forced to review those very same decisions, leading to “dueling loyalties to the constituents of each office.” However, the Attorney General noted that a court may come to a different conclusion, depending on the facts of an actual case. He also cautioned that an individual who is serving both as a school director and a planning commissioner who “may be required to recuse from deciding a quasi-judicial matter [as the planning commissioner] when the school district is a party.”

Wash. Att’y Gen. Op. 2016 NO. 7 (2016),

Posted by: Patricia Salkin | January 14, 2017

The national Land Use Institute is Back – Feb. 1-2, 2017 in Miami

Thanks to the ABA State and Local Government Law Section, the popular Land Use Institute organized by Frank Schnidman, Esq. is back!  This year Andy Gowder, Esq. and Robert Thomas, Esq. have joined to bring back the program.

The registration link is at the bottom of the agenda.

Wednesday, February 1, 2017

1:00 p.m.    Registration

1:30 p.m.    Welcome – Neisen Kasdin, Managing Partner, Akerman, Miami, FL; Ellen F. Rosenblum, Oregon Attorney General, and Chair, ABA Section of State and Local Government Law, Salem, OR; Mayor Tomas Regalado, City of Miami, FL; Kieran Bowers, President, Swire Properties, Inc., Miami, FL.

Course OverviewMr. Schnidman.

2:00 p.m.    Update on Planning, Land Use, and Eminent Domain DecisionsModerator: Mr. Schnidman; Panel: Dean Salkin; Mss. Agrimonti; Boulris, Kellington, and Rosenthal; Messrs. Gowder and Merriam.

3:45 p.m.     Networking and Refreshment Break

4:00 p.m.      Ethical and Professionalism Considerations for the Land Use Practitioner and Government Lawyer – Moderator: Mr. Schnidman; Panel: Dean Salkin and Mss. Cagel, and Rundle. 

6:00 p.m.       Adjourn for the Day

6:30 p.m.       Tour of Brickell City Centre by Swire Properties, Inc.


Thursday, February 2, 2017

8:00 a.m.         Continental Breakfast

8:30 a.m.         Federal Laws, Regulations, and Programs Affecting Local Land Use Decision Making – Moderator: Mr. Schnidman; Panel: Dean Salkin, Mss. Agrimonti, Kellington and Rosenthal; Messrs. Gowder, Merriam, Murley and Thomas. 

10:30 a.m.       Networking Break

10:45 a.m.    Annual Richard F. Babcock Faculty Keynote Address: “From the Ground Up: Unshared Assumptions in Law and Planning”Introduction by Mr. Schnidman; Speaker: Ms. Deborah Rosenthal; Response Panel: Messrs. Merriam and Zelkowitz.

12:00 noon     Lunch Break (Sponsored On-Site Box Lunch)

Women in the Law Luncheon Session

Young Practitioners Luncheon Session


Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings: Where Are We Now — Moderator: Prof. Eagle; Panel:  Messrs. Roston, and Thomas.

Public Private PartnershipsModerator: Mr. Gowder; Panel: Messers. Kasdin, Zelkowitz and Marquez.

Climate Change and Resilient Development  Moderator: Mr. Murley; Panel: Ms. Torriente; Mr. Pathman

2:30 p.m.  Networking and Refreshment Break


Nuts and Bolts of Land Use Practice: Client Representation-Developer, Government and Citizen Groups Moderator Mr. Gowder; Panel: Messrs. Marques, and Merriam.

Regulating Navigable Airspace: The Drones are Here –Moderator: Mr. Schnidman; Panel: Ms. Kellington; Mr. Merriam.

Housing Supply and Affordability – Planning Alternatives and Legal ConsequencesModerator: Dean Salkin; Panel: Prof. Callies and Mss. Agrimonti and Emami.

4:15 p.m.        Networking Break


Moderator: Ms. Rosenblum

Community Benefits Agreements—Commissioner Cava

Environmental Justice—Mr. Wilson

Access to Housing—Ms. Emami

(Panel Coordinator: Mr. Gowder)

6:00 p.m.         Adjournment

6:30 p.m.         Networking Reception – Join with the ABA Section of State and Local Government Law for Reception)

Total 60-minute hours of instruction: 11.5, including 2 hours of Ethics

Appellees, Eugene B. Casey Foundation (“Casey”) and Frederick County, Maryland, entered into a Development Rights and Responsibilities Agreement (“DRRA”), following its approval by the Board of County Commissioners for Frederick County (“BOCC”), to facilitate the development of Casey’s 634-acre property in Frederick County. Concurrent with the approval and execution of the DRRA, the BOCC approved Casey’s rezoning application, changing the zoning of the property from agricultural to planned unit development (“PUD”). Appellants, Cleanwater Linganore, Inc. (“CLI”), appealed these BOCC actions.
On appeal, CLI first contended that the Casey DRRA froze a broader scope of local laws than permitted legally, thereby rendering the BOCC’s approval and the County’s execution unlawful. The court determined that the DRRA was ambiguous on its face as to the intended scope of “the local laws, rules, regulations, and policies” that governed the use, density, or intensity of the property. By viewing relevant local provisions on a continuum from the most direct governance to the least contemplated by the freeze provision, the court found that zoning and subdivision would be located at one end and fees at the other, and that the freeze provision needed to contemplate local laws, rules, regulations, and policies that might fit between these two ends. Accordingly, the court held that the Maryland General Assembly intended the DRRA Act’s freeze provision to contemplate each of the genres of local laws listed in Article VIII § 8.1.B of the Casey–County DRRA; thus, the Casey DRRA did not freeze a broader scope of local laws than legally permitted.

Appellants next argued that the BOCC rezoned the Casey property without making the factual findings required by the Frederick County Code and State law regarding design and building siting, compatibility with neighboring land uses, and population growth. In the record, the BOCC stated that, because of the Casey property’s LDR designation and location in the Linganore CGA, “it is identified as an area that has been targeted for growth and development and is therefore consistent with the general policy in the Comprehensive Plan that supports the location of growth within growth areas.” The court therefore found that the BOCC made adequate findings supporting a favorable conclusion relative to the factors in FCC § 1–19–10.500.3(B). Additionally, the BOCC examined the Casey developments’ compatibility surrounding land uses: “landscape buffers between the project and Hall’s Choice Farm, the Audubon Property, and the Swanby Property will effectively mitigate potential inconsistencies between the project and the existing uses on those properties.” Lastly, the court found that the BOCC included the requisite findings regarding population growth. Accordingly, the court held that the BOCC had based its findings and ultimate rezoning decision on substantial evidence, and affirmed.

Cleanwater Linganore, Inc. v. Frederick County, 2016 WL 7449214 (MD 12/28/2016)


Raymond Brandt owned property in the Old Metairie Neighborhood Conservation District (“OMNCD”), and applied to the Board for a zoning variance to be allowed to construct a fence in the front yard, with a five foot setback, at a residence that he was building. Brandt’s variance application was opposed by the Metairie Club Gardens Association (MCGA). A public hearing was held and the Board approved Mr. Brandt’s request for a variance, finding a precedent had been set in that there were at least two houses in the neighborhood that had been granted a variance, and that to deny Mr. Brandt his variance would result in his being “deprived of rights and privileges granted to others.”
On appeal, MCGA argued that the trial court committed legal error in failing to enforce the requirements of the Comprehensive Zoning Ordinances (CZO). Plaintiff introduced evidence showing that his request for a variance was not opposed by the Environmental Department, the Parish Attorney of the Inspection Code and Enforcement Department, or the Public Works Department. Additionally, the Board considered several letters from surrounding neighbors opposing the fence, the actual structure of the fence, what it would be made of, and how tall it would be. Accordingly, the court affirmed the trial court’s holding that the Board was not arbitrary and capricious in its determination.

Metairie Club Gardens Association, Inc. v. Parish of Jefferson,  2016 WL 7448827 (LA App. 12/28/2016)


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