This post was authored by Matthew Loeser, Esq.

Petitioner Andrew Bovee owned property in the Town of Hadley adjacent to property owned by his parents. Bovee regularly processed, stored and sold firewood on his property, and applied for site plan development approval to conduct additional business activities there. The Planning Board approved the application upon the understanding that Bovee would store 7 to 10 cords of firewood on the property. Following enforcement proceedings commenced due to the excessive amount and disruptive location of firewood on Bovee’s property, Bovee and his parents separately applied for site plan approval pursuant to the Site Plan Review Law. The Planning Board conditionally approved these applications. Bovee and his parents separately commenced the present combined proceedings and declaratory judgment actions challenging the conditional approvals and to seeking a judgment annulling them on the basis that the Planning Board lacked the authority to issue them. The lower court granted the petitions and annulled the challenged determinations, and the respondents appealed.
At the outset, the court noted that there was no statutory directive that a municipality employ both zoning and site plan review as mechanisms of land-use control. While the Town of Hadley did not have a “zoning ordinance,” its Town Board adopted the Site Plan Review Law, a “local law” that authorized the Planning Board “to review and approve, approve with modifications or disapprove site plans”. This Site Plan Review Law set forth the details required on a site plan review application, the goals of the Town comprehensive plan, and specified the factors that the Planning Board should consider in reviewing a site plan application. Thus, the Site Plan Review Law was found valid, and the Planning Board therefore had authority to determine the site plan review applications at issue.
The Supreme Court, in light of its erroneous conclusion that the Site Plan Review Law was invalid, did not reach the challenges of Bovee and his parents to the conditional approvals themselves. Here, the record reflected that the Planning Board imposed a number of conditions in approving the applications, including requirements that fencing be installed, limitations on firewood storage and restrictions on where and when firewood could be processed and sold by Bovee. The court found that these conditions, which were directly responsive to the complaints of neighbors regarding Bovee’s business operations, were not arbitrary or capricious. Accordingly, the decision of the Supreme Court of New York was reversed.
Bovee v Town of Hadley Planning Board, 201 WL 1629509 9 (NYAD 3 Dept. 4/15/2018)

This post was authored by Matthew Loeser, Esq.

In this case, Plaintiffs Laveranues Coles and his associated company, Trouble Livin Life, LLC, sought reconsideration of an Order in which the Court granted summary judgment in favor of the Defendant, City of Jacksonville. In that Order, the Court determined that because Coles had not received a final decision from the City on his zoning exception applications, his claims were not ripe. Additionally, the Court found that Coles had failed to show that obtaining a final decision from the City was futile, thereby otherwise excusing him from presenting a ripe controversy to the Court.

On appeal, Coles contended that the Court erred in ruling that he failed to allege a procedural due process violation. In his Complaint, Coles claimed that the City failed to grant his requested zoning exceptions based on the City’s alleged disdain for Coles’ intended use of the property, which was as a dancing entertaining establishment (DEE) serving alcohol (aka a “bikini bar.”). The court found that these allegations described a substantive due process or an “as applied” challenge to the application of the City’s zoning code to Coles; however, and this claim was adjudicated by the Court.

Coles next claimed that the Court erred in ruling that he failed to present sufficient evidence that any attempt on his part to seek a final decision from the City on his zoning exceptions would be futile. Specifically, Coles challenged the limited consideration the Court gave to the testimony of his proffered expert, Paul M. Harden, who opined that it would be futile for Coles to seek additional zoning variances as directed by the City’s ultimate zoning decision maker, the LUZ Committee. The LUZ Committee advised Coles that it was unable to make an ultimate ruling on his request for zoning exceptions because he needed to apply for an additional distance variance – which he never did. As such, the court rejected Coles’ futility argument.

Lastly, Coles argued that the Court erred in failing to analyze the applicability of the zoning code’s grandfather clause, Jacksonville, Florida Ordinance Code § 656.110(h) (City Code), to his application for a zoning exception. Pursuant to 656.136(c), the City Code “when the use requires licensure or other approvals by the State or any other governmental entity, such as a liquor license approval…the zoning exception, variance or waiver granted in connection with such use shall not be transferrable and shall be granted to the applicant or State license holder.” Accordingly, the court upheld the finding that Coles was required to seek a zoning exception for the service of alcohol on the Property. As such, Coles’ Motion for Reconsideration was denied.

Coles v City of Jacksonville, 2018 WL 1605834 (MD FL 4/3/2018)

Posted by: Patricia Salkin | April 4, 2018

IN Appeals Court Upholds Denial of Site Plan Proposal

This post was authored by Matthew Loeser, Esq.
Portage Township Multi-School Building Corporation and Central States Tower III, LLC (CST) executed a lease agreement, pursuant to which CST would rent a 7,961-square-foot parcel on the subject property owned by the School Building Corporation. CST planned to construct and operate a telecommunications tower on the Site. CST filed a petition for a special zoning exception for the Site with the Portage Board of Zoning Appeals. The Board voted to approve the special exception on the conditions that: CST must adopt the Planner’s proposed landscaping plan and build an eight-foot fence around the Site of better quality than a chain link fence. The Plan Commission’s Development Review Committee (DRC), approved CST’s site plan on the conditions that: CST would need to acquire a new access easement to the Site; the Board’s landscaping and fencing conditions would have to appear in the site plan; and the revised site plan would have to be re-submitted for final approval. When the DRC questioned CST as to whether the School Building Corporation had approved the Alternative Easement, the CST stated that an “agreement for site access would be worked out at a later time.” Due to this lack of an agreement for the Alternative Easement, the DRC recommended that the Plan Commission deny CST’s site plan. In this case, CST appealed the trial court’s order denying relief on CST’s petition for judicial review.

On appeal, CST argued that because the School Building Corporation was obligated pursuant to the Lease to provide CST with an easement to access the Site, the fact that there was no permanent easement in place at the time of the Commission’s review should not form the basis of the denial of CST’s site plan proposal. The Township had an ordinance requiring an application for site plan approval for a telecommunications facility to include “copies of any necessary easements.”. Here CST’s site plan did not have the required easements attached because they did not exist. As such, the court found that the trial court did not err by finding that the Plan Commission’s denial of CST’s site plan proposal was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Accordingly, the judgment of the trial court was affirmed.

Central States tower III, LLV c Plan Commission of City of Portage, 2018 WL 1614301 (IN App 4/4/2018)

This post was authored by Matthew Loeser, Esq.
Dan’s Mountain Wind Force, LLC sought to construct seventeen wind turbines and an electrical substation on leased property on Dan’s Mountain. The Allegany County Code permitted wind turbines as a special exception in the zoning district in which the project is proposed. Because the proposed sites of some of the turbines were within either the setback or separation distances, or both, Wind Force sought variances. The Wind Force’s expert testimony was that these constraints required it to propose placing the turbines in very specific locations on Dan’s Mountain and that the requested variances of the minimum separation distance and setback requirements were necessary for the project. Despite this testimony, the Board denied the variance requests and the special exception application that was premised on those variances. Wind Force consolidated its appeals of the Board’s decisions into a single petition for judicial review, which the circuit court affirmed.

At the outset, the court noted that the uniqueness of the properties at issue must have a nexus with the aspect of the zoning law from which a variance is sought. On appeal, the court found that the Board focused on comparing the co-applicant properties to each other without looking at other surrounding properties. Here, the aspects of the zoning law from which a variance were sought were the separation and setback requirements. Thus, the court found that the Board should have considered whether there were features on the property that caused the separation and setback requirements to affect the applicant’s individual property differently from the way it affected other surrounding properties. The court further held that it was insufficient to determine, as the Board did, that every property was in some way affected by prior surface mining, animal and plant habitats, and communications towers. Conversely, the court found that Wind Force put forth enough evidence of several features of each of the co-applicant properties to suggest that the separation and setback requirements operated differently on each of those properties than they operated on other surrounding properties. Accordingly, the Board’s decision was reversed and remanded.

Dan’s Mountain Wind force, LLC v Allegany County Board of Zoning Appeals, 2018 WL 1611695 (MD App 4/3/2018)

This post was authored by Matthew Loeser, Esq.

Pentecostal Church of God d/b/a Great Life Church and Pastor Larry Spivey’s petitioned for judicial review of the denial of a special use permit application. The Church argued for the reversal of the Board’s decision on four grounds: that no substantial evidence supported the denial of the Church’s application; that the denial results in a violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); that the denial results in a violation of equal protection; and that the denial resulted in a violation of due process.

On appeal, the court found that the public testimony opposing the project constituted substantial evidence for the Board to rely on when denying the Church a special use permit. The Board denied the Church a permit, citing the project’s failure to meet two considerations under DCC § 20.604.060: “the required compatibility with the character and integrity of the neighborhood despite mitigating project modifications and the resulting traffic impact would not be hazardous or conflicting with the existing traffic.”

Petitioners next claimed that the denial of the special use permit resulted in a substantial burden on their religious exercise as it prevented them from using their property in a manner that was “compatible with the county code when necessary steps are taken and conditions are imposed to mitigate any legitimate adverse effects…” Here, however, the Board found the property unsuitable based on its proximity to an already busy, and possibly dangerous, intersection as well as its location in a particular neighborhood. Consequently, the denial did not limit the Church’s opportunity or ability to seek out other available properties and did not suggest an application related to a more suitable property would be denied. Accordingly, the court denied the RLUIPA claim based on Petitioners’ failure to demonstrate a substantial burden on their religious exercise. As, the RLUIPA claim was the basis for Petitioners’ due process claim, that claim was likewise dismissed.

As to Petitioners’ class-of-one claim, the court found that despite the existence of several other churches within the area, the administrative record did not indicate that the existing churches were located at the same intersection, or at a similar intersection, as the at-issue property. Instead, the traffic concerns regarding the busy intersection appeared unique to the property on which the Church sought to construct its building. As such, the court affirmed the Board’s denial, and denied Petitioners’ challenges under RLUIPA, equal protection and due process.

Pentecostal Church of God v Douglas County, 2018 WL 1611184 (D NV 4/2/2018)

This post was authored by Amy Lavine, Esq.

 A Kansas court held that alterations to a nonconforming fence were merely “repairs,” rather than a “full replacement,” and thus the property owners merely needed to obtain a building permit rather than seeking variance approval.

 

The Layles maintained a fence around their home that was several decades old and predated the zoning ordinance. The fence was badly in need of repairs, and to address the problem they applied for a permit to replace the pickets and rails for the entire length of the fence. Although this approach would leave the fence posts intact, the Architectural Review Board determined that a variance was still required for the fence’s height and location. The city administrator likewise denied the Layles’ permit request and directed them to obtain a variance, reasoning that the proposed alterations were so substantial that they constituted a replacement of the fence, not just a mere repair. The zoning board affirmed.

 

Insofar as the case required an interpretation of regulatory and statutory requirements, as opposed to just issues of fact, the Kansas Court of Appeals noted that it reviewed the zoning board’s decision de novo. This included the determination as to whether the fence alterations constituted repairs or  replacements, as the interpretation of those terms presented a question of law. Accordingly, while the court deferred to the board’s decision generally, it reached its own determination regarding the correct interpretation of the variance regulations.

 

The ordinance defined “repair” as normal maintenance, excluding the “full replacement” of a structure, and the Layles contended that their project fell within this definition because, by using the existing fence posts, it would be less than a “full replacement.” The Kansas Court of Appeals agreed and reversed the decision of the zoning board, which failed to apply the criteria as defined in the ordinance. In addition to the definition of “repair,” the court found it significant that “fence section” was defined to mean the portion of a fence constructed between two fence posts. Because the work in this case consisted only of replacements to these “sections,” the court explained, the repairs were necessarily less than a “full” replacement, regardless of the extensive scope of the proposed work.

 

The court also found that the proposed fence alterations complied with the requirement that “repairs” could not “change the use, location, height, size or exterior surface of the structure.” Althought the city argued that replacing the fence’s rails and pickets would change its exterior surface in violation of this provision, the court found that the board’s interpretation was unreasonably narrow because the Layles had proposed replacements would use substantially similar wooden pickets and rails to the old fence. The restriction against changed exterior surfaces, the court explained, “more likely refers to a change in exterior surface materials, e.g., wood versus metal pickets or stucco versus brick siding.”

 

As the court summarized: “Because the Board misconstrued the plain language of the zoning regulations, its decision that the Layles’ proposed work constituted a full replacement of the fence is not substantially supported by the evidence. The evidence instead shows that their proposed work constituted a repair of the fence.”

 

Layle v. City of Mission Hills, 401 P.3d 1052 (Kan. App. 2017)

Posted by: Patricia Salkin | March 22, 2018

LA Appeals Court Affirms Denial of Application to Rezone Property

This post was authored by Matthew Loeser, Esq.


Following a citation from the Parish Department of Inspection and Code Enforcement for performing renovation work without a permit, Mr. Ehsani–Landry filed an application with the Jefferson Parish Planning Department to change the zoning of the subject property from R–1A, single family residential, to R–3, multiple family residential. The Department of Inspection and Code Enforcement opposed Mr. Ehsani–Landry’s application because parking on the site was insufficient. The Planning Department found that the proposed rezoning was not consistent with the Parish’s Comprehensive Plan and recommended a denial of the application. The Planning Advisory Board also voted to recommend denial of the application. Mr. Ehsani–Landry filed a petition in the 24th Judicial District Court seeking relief from the Council’s denial of his request for rezoning, but the trial court denied the petition.


Mr. Ehsani–Landry first argued that the trial court erred in not granting a rehearing before the Council because he did not receive mailed, written notice of the Council meeting. Under the Jefferson Parish Code of Ordinances Sec. 40–878, which set forth the public hearing and notice requirements for zoning applications, the Parish was not required to mail written notice to rezoning applicants of Council meetings. Those meetings were governed by the Open Meetings Law.  Here, Jefferson Parish introduced evidence that the Council properly published and advertised its meetings, including the one where Mr. Ehsani–Landry’s application was considered, in compliance with the Opening Meetings Law.


Mr. Ehsani–Landry next contended that the trial court erred in not extending the one-year period set forth in Jefferson Parish Code of Ordinances Sec. 40–702 to allow for the continuation of a nonconforming use following foreclosure proceedings, and that the trial court erred in failing to find that the 1994 rezoning was an unconstitutional taking that substantially damaged the value of his property. As to these issues, the court found that Mr. Ehsani–Landry lacked standing to bring either of these arguments before the court. Here, it was undisputed that Mr. Ehsani–Landry had no ownership interest or property rights in the property until he purchased it by Warranty Deed in Lieu of Foreclosure from the Bank of New York Mellon on June 25, 2015. Accordingly, he had no property rights that could have been damaged when the nonconforming use was lost in December 2014, prior to his purchase. Mr. Ehsani–Landry’s unconstitutional taking claim, was likewise denied for this reason.


Lastly, Mr. Ehsani-Landry argued that the Council’s decision to deny his rezoning request was arbitrary and capricious. The trial court found that the Council’s decision to deny Mr. Ehsani–Landry’s application was rationally related to the general welfare of the public in light of the evidence presented showing that the Council relied on the recommendations of the Planning Department and Planning Advisory Board. Mr. Ehsani–Landry failed to introduce any evidence to combat this, or to overcome the prima facie presumption of the validity of the Council’s decision. Accordingly, the court affirmed the judgment of the trial court dismissing Mr. Ehsani–Landry’s petition with prejudice.


Ehsani-LAndry v Jefferson Parish, 2018 WL 1309814 (LA App. 3/14/2018)

 

Posted by: Patricia Salkin | March 21, 2018

NY Appellate Court Upholds Denial of Area Variances

This post was authored by Matthew Loeser. Esq.


Petitioner owned vacant property in the Town of Brookhaven containing two tax lots, which shared a rear boundary and abutted two parallel streets. The petitioner applied to the Town of Brookhaven for area variances to build two houses on the property: one abutting each street. Petitioner argued that it was entitled to area variances because the property consisted of two single and separate tax lots. After a hearing, the Board of Zoning Appeals of the Town of Brookhaven denied the application, determining that the property consisted of two merged tax lots, and that the petitioner would have reasonable use of the property by developing one house instead of two. The Supreme Court of New York denied the petition and dismissed the proceeding seeking to annul the BZA’s determination.


Despite petitioner’s contention that the property consisted of two single and separate lots, the record reflected that the two lots have been held in common ownership since 1948, and the petitioner presented no evidence to suggest that the lots were separate. Additionally, there was evidence at the hearing that the proposal did not conform to the surrounding development pattern. Furthermore, an identical application for a property in the immediate area was denied by the BZA in 2007. As such, contrary to the petitioner’s contentions, the findings of the BZA were based on objective facts appearing in the record. The court also held that the petitioner would have a feasible alternative use of the property with construction of one house instead of two. The BZA’s holding was therefore upheld.


Harn Food, LLC v Dechance, 2018 WL 1309927 (NYAD 2 Dept. 3/14/2018)

 

This post was authored by Matthew Loeser, Esq.
Mr. Maib planned to develop and run a concrete batch plant in the Treasure Coast area “Ocean Concrete project”. In 2005, Mr. Maib filed a site plan application for review by the County’s Technical Review Committee (“TRC”). While this application was pending, the nearby City of Sebastian issued a resolution imploring the County to deny approval for the proposed Ocean Concrete project, and a group of citizens formed an organization called “Stop Ocean Concrete.” The leader of this organization appeared at a Board of County Commissioners (“BCC”) meeting and requested the BCC amend the zoning code to eliminate heavy process uses from the IL zoning district, which the BCC did “void of any exception or merit for grandfathering of vested rights.” Appellants filed a declaratory action in the circuit court seeking clarification of their rights to proceed under the site plan application. The circuit court determined that the County had to: grant the extension, state a valid reason for denial, or deny the site plan on its merits. Mr. Maib appealed the denial to the Planning and Zoning Commission but, while his appeal was pending, lost the property to foreclosure. In this case, Appellants Ocean Concrete, Inc. and its principal, George Maib, appealed a final judgment entered in favor of Indian River County in Appellants’ property rights related lawsuit against the County.

As relevant to this case, the Harris Act was enacted by the Florida Legislature to protect individuals whose property is affected by government action not rising to the level of a taking. Under the Harris Act, the property owner must prove that “a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property.” The court determined that the term “nonspeculative” referred to the land use and, therefore, a “nonspeculative use” analysis is only used when a party has argued that it could not use its land in the future for a purpose not expressly provided for by the zoning code at the time of the government action. Here, however, the use was expressly provided for, so there was no need for a speculation analysis. Accordingly, the lower court erred in concluding that a concrete batch plant was not a nonspeculative land use when making its “existing use” determination, since concrete batch plants were a permitted use on Appellants’ property before the County amended the code.

The court next found that nothing about the physical or regulatory aspects of the property at the time of the government regulation made Appellants’ expectations for the development of a concrete batch plant unreasonable. Here, concrete batch plant was a permitted use under the zoning code as a matter of right and throughout the site-plan approval process, and Mr. Maib was led to believe that approval was inevitable. Additionally, Mr. Maib obtained the services of an expert engineer who told him that the development was feasible. Finally, the property abutted a railroad and Mr. Maib was able to install a spur to facilitate the importation and exportation of materials. The court therefore found that Mr. Maib had a reasonable expectation for the development of his property, and reversed and remanded for case for a trial on damages suffered by Appellants under the Harris Act.

Ocean Concrete, Inc. v Indian Rover County Bd. of Comm’rs, 2018 WL 1313420 (FL App. 3/14/2018)

This post was authored by Amy Lavine, Esq.

The March 16, 2018 decision in Fichera v New York State Dep’t of Envtl. Conservation held that the Town of Sterling zoning board improperly granted variances for a mining project because it failed to refer the variances to the county planning agency, as required by state law. The zoning board’s failure to comply with the referral statute was a jurisdictional defect, not just a procedural error, and as a result, the variance was null and void, as was an amended variance that was based on the findings underlying the initial variance.

The town argued that the challenge was time-barred and should have been dismissed because the petitioners failed to file their claims within 30 days after the initial variance was approved. However, because the failure to refer the variance to the county planning board was jurisdictional, the court found that approval of the variance did not start the statute of limitations and thus the challenge was not time-barred.

The board also argued that its unanimous vote on the amended variance excused the defect because it would have been sufficient to override any recommendation from the county planning agency, had it complied with the referral requirement in the first place. The court disagreed, however, because the ZBA’s subsequent vote could not retroactively cure the jurisdictional defect in its approval of the original area variance.

Finally, the court held that the Department of Environmental Conservation complied with its responsibilities under the State Environmental Quality Review Act by taking a “hard look” at the project’s environmental impacts and making a reasoned elaboration as to the basis for its determination to issue a negative declaration. The court also found that there were no violations under the Freedom of Information Law or the Open Meetings Law that warranted relief, as there was no evidence that any documents were improperly withheld and any defects in notice were unintentional and did not result in aggrievement.

 

Fichera v New York

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