Editor’s Note: Special thanks to Edward Sullivan, Esq. for contributing this summary for Law of the Land.

In re Adoption of N. J. A. C. 5:96 & 5:97 by N. J. Council on Affordable Housing, (N. J., March 10, 2015) was the culmination of forty years of litigation over the responsibilities of New Jersey local governments to provide for their fair share of affordable housing.  As a result of two cases, Southern Burlington County NAACP v. Township of Mt. Laurel, 336 A2d 713, appeal dismissed and cert. denied 423 U.S. 808 (1975) (Mt. Laurel I) and Southern Burlington County NAACP v. Township of Mt. Laurel, 456 A2d 390 (1983) (Mt. Laurel II), the New Jersey Supreme Court established a state constitutional right to require local governments exercising its land use regulatory powers to “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course, including those of low and moderate income.”  In doing so, the Court granted broad relief that included a “builder’s remedy” that allowed an applicant prevailing before a trial Court on a constitutional claim of this nature to seek direct Court approval of its application.

The prospect that the Courts may decide local zoning applications moved the New Jersey legislature in 1983 to enact the Fair Housing Act (N.J. S. A. 52:27D-301 to -329) to create the Council on Affordable Housing (COAH) to provide for a substitute administrative system by which regional housing needs would be assessed and the share of that regional need to constituent local governments would be apportioned and implemented.  This legislation also provided those local governments that achieved “substantive certification” of compliance with those regional obligations with immunity from the builder’s remedy, and would have a presumption of constitutional validity if those local regulations were challenged.  Under the alternative system, COAH was obligated to adopt administrative rules to update its housing projections and allocations, as well as procedural and substantive standards dealing with local government housing obligations.  In a subsequent case, Hills Dev. Co. v. Twp. Of Bernards, 510 A.2d 621 (1986) the Supreme Court deferred to this legislative solution and effectively suspended the builder’s remedy.

The administrative process worked for some time, but in 1999 the existing set of COAH administrative rules expired.  Efforts to update those rules were struck down in 2007 and 2010.  A further attempt to revise the rules to adopt a “growth share” model failed in 2013. Under the growth share theory, the municipal obligation to provide realistic opportunities for affordable homes was calculated, but could be adjusted to reflect actual residential and nonresidential growth, allowing municipalities to avoid the obligation by controlling their rates of growth.

After the series of failed efforts to adopt new administrative rules, the Supreme Court on March 14, 2014 ordered new rules to be adopted by November 17 2014, with the alternative that the case would be returned to the Supreme Court to fashion relief.  COAH deadlocked 3-3 on adoption of new rules on October 20, 2014 and one of the parties to the proceedings to invalidate the 2010 rules initiated proceedings in the New Jersey Supreme Court for relief.  At oral argument, COAH informed the Court that it had not met since the deadlock vote and had no plans to meet, but contended that the deadlock was not willfully contumacious conduct.  Various local jurisdictions contended that COAH should have more time or, alternatively, that those municipalities that were before COAH for substantive certification should not have their immunity from builder’s remedies lifted.

The Court found efforts to secure more time for COAH to adopt new rules undermined by the lack of any prospect for such adoption in the near future.  It also observed that there was no requirement that the failure to respond to the Court’s orders to adopt rules be willful for the Court to act.  In view of the failure to adopt new administrative rules, the Court determined that deference to the legislative solution was no longer justified and that direct access to the Courts to secure compliance with the constitutional right created in the Mt. Laurel cases would be restored.  The Court then provided for a 90-day transition period to deal with Mt. Laurel litigation, but stressed that COAH and the legislature were free to take actions to achieve the same ends.  The Court then turned to the specific classes of situations in which Mt. Laurel obligations were at issue.

As to the 200 municipalities that had not requested substantive certification of the housing elements of their plans and their implementing regulations or which had not agreed to participate in COAH actions to achieve substantive certification, they would continue to be exposed to Mt. Laurel suits (and possibly the application of the builder’s remedy), which left those entities no worse off than before.

For those 60 municipalities that had achieved substantive certification under the post-1999 rules later determined to be invalid because of the “growth share” methodology, they would be examined against the Mt. Laurel standards, but adjustments to housing elements and implementing regulations may be required by trial Courts, possibly through supplemental actions.  Moreover, the Court expressed a general inclination to grant the municipality immunity from the builder’s remedy during such litigation, unless it became “unreasonably protracted.”  These municipalities will have a 30-day period, after the 90-day delay in the effective date of the Court’s order that is applicable to other parties, to file declaratory judgment actions asserting compliance with Mt. Laurel.  After that period, those municipalities are subject to Mt. Laurel litigation brought by others.

As to the remaining 300 municipalities that had agreed to participate with COAH to achieve substantive certification, the trial Court would be required to inquire as to the extent to which, beyond merely agreeing to participation, the municipality had formulated and implemented plans and regulations to achieve compliance with Mt. Laurel.  Similarly, those municipalities had a 30-day period, after the 90 days provided for other municipalities, to elect to file their own litigation asserting compliance or awaiting a challenge after that time by other parties asserting noncompliance.  In either case, the trial Court must decide whether to provide immunity from a builder’s remedy while the case is pending, and if necessary, whether to continue that immunity in the light of existing circumstances.

In any event the Court was clear that it would assure compliance with its Mt. Laurel decisions.

In re Adoption of N. J. A. C. 5:96 & 5:97 by N. J. Council on Affordable Housing, (N. J., March 10, 2015)

The opinion can be accessed at: http://www.judiciary.state.nj.us/opinions/supreme/M39214COAH.pdf

Petitioner operated a quarry in the Town of Schoharie, Schoharie County, which had been in operation since the 1890s. Pursuant to respondent Town of Schoharie’s 1975 zoning ordinance, “commercial excavation or mining” was a permitted use upon receipt of a special permit from the Town. Petitioner purchased an additional parcel of real property to the south of the areas that it actively mined, and then commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking a judgment declaring that it had a vested right to quarry as a preexisting nonconforming use under Local Law No. 2 and any subsequently enacted prohibitory zoning amendment. The Supreme Court granted petitioner’s motion for partial summary judgment on this cause of action.

The court reasoned that although a special permit was required for mining operations between 1975 and 2005, petitioner’s failure to obtain one did not, as a matter of law, preclude it from establishing that it has a vested right to mine on its property notwithstanding a current or future prohibitive zoning ordinance. Because of this, the court found the Supreme Court erred in granting partial summary judgment to respondents dismissing the vested right cause of action based on petitioner’s failure to obtain a special permit pursuant to the 1975 zoning ordinance. Finally, the court found that the Supreme Court’s judgment, partially granting the petition and annulling Local Law No. 2, did not render the appeal moot; if a new zoning ordinance with the same prohibition against mining were to be enacted, a declaration that petitioner had a vested right as against the earlier law would affect the rights of the parties. Accordingly, the order of the Supreme Court was dismissed.

Cobleskill Stone Products, Inc. v Town of Schoharie, 2015 WL 919683 (NYAD 3 Dept. 3/5/2015)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2015/518997.pdf

In 2011, respondent New York Safety Track LLC made an application for site plan approval to respondent Town of Harpersfield Planning Board to convert a former airport property to a motorcycle safety training facility.  The Planning Board’s minutes indicate that it had conditionally approved the proposed site plan application, and the facility was completed thereafter. After receiving numerous complaints from neighboring landowners that the facility was hosting large, high-speed racing events, respondent Town of Harpersfield Code Enforcement Officer advised Safety Track that its advertised racing and large track events were not authorized uses pursuant to the site plan that had been approved by the Planning Board.   A few weeks later, the CEO, the Planning Board, respondent Town of Harpersfield and Safety Track executed an “Agreement for Operation of New York Safety Track” (hereinafter the 2013 agreement) and an events calendar for the 2013 facility’s season, which purported to outline Safety Track’s approved land uses for May 1, 2013 to December 31, 2013.  After an Article 78 proceeding, the Supreme Court issued a judgment determining that petitioners’ challenge to the then-expired 2013 agreement was not moot, annulled it and made declarations regarding the scope of Safety Track’s permissible land uses.

At the outset, the court discussed that where the passage of time or a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy, the claim must be dismissed.   Here, the 2013 agreement pertained solely to Safety Track’s land uses and events that occurred during the 2013 track season and expired at the end of that year, thereby rendering the challenges to the 2013 agreement moot.  Furthermore, the court found that the Supreme Court did not err in its determination that the Town committed violations of the Open Meetings Law on several occasions leading up to the execution of the 2013 agreement with Safety Track and its subsequent award of reasonable counsel fees and costs to petitioners. This was due to the fact that the Town’s conduct denied petitioners “any meaningful participation” in the process leading to the final adoption of the controversial 2013 agreement, in clear contravention of Public Officers Law § 103(e). Accordingly, the appeal was dismissed.

Ballard v New York Safety Track, LLC, 2015 WL 919739 (NYAD 3 Dept. 3/5/2015)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2015/518627.pdf

The Connells, owners of the Glen Grove Apartments in Bothell, decided to replace building’s existing framed windows and doors without applying for the required building permit for the work. The City then opened an investigation after receiving complaints about mold and water damage to apartments and found that plaintiffs performed the work without a permit. The City issued a determination of inconsistency as to the building code requirements. The plaintiffs later submitted multiple permit applications and the board found that the plaintiffs’ work did not comply with the requirements of the Internal Building Code, which required the exterior windows and doors be installed per the manufacturer’s instructions, exterior walls provide the building with a weather-resistant envelope and flashing be installed to prevent moister from entering the wall. The board found that the plaintiffs did not show that compliance with the code would be impractical and their proposal was unrealistic and ineffective. Michael Delack, the City’s building official, provided testimony on the relevant code provisions. The plaintiffs then appealed to the Court of Appeals of Washington after the lower court denied their petition.

In deciding whether the Board’s decision was supported by substantial evidence, the court of appeals found that the installation of the windows and door did not confirm with International Building Code (IBC) because the windows and doors were not installed per the manufacturer’s instructions. Specifically, the court found that the installation did not comply with the manufacturer’s retrofit instructions because the pre-existing aluminum frames were removed and the installation did not comply with the instructions for new construction because flashing was not installed. The court also found it proper for the City to find that the installation method was not equivalent in quality because a sampling of the new windows also showed there to be water leakage and mold growth. The court further found that the Board did not violate the appearance of fairness doctrine because Delack did not engage in ex parte communications with opponents or proponents with respect to the window installation. The court of appeals concluded in finding that there was no evidence that Delack had any financial interest in denying the plaintiffs’ application, and granted the City’s requests for attorney fees incurred.

Connell v. City of Bothell, 181 Wash. App. 1031 (unpub. 6/1/6/2014)

The opinion can be accessed at: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=701410MAJ

A special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right. An applicant for a special exception permit needs to know how that it has complied with every legislatively imposed condition on the permitted use. However, if the applicant fails to comply with any of the conditions set forth in the ordinance, the zoning authority may deny the application. Because the petitioners did not dispute that the property they wished to use for a three-family residence did not meet the applicable lot-size requirements, the court upheld the lower court’s decision to dismiss that the branch of the petition to review the determination of the Board of Appeals.

Nathan v Board of Appeals of Town of Hempstead, 2015 WL 669463 (NYAD 2 Dept. 2/18/2015)

Sean Youmell owned two vacant parcels of land in Southampton that were conveyed to him by his father: one at 57 Fomer Road and the other at 67 Fomer Road. The Youmells openly stored a variety of trucks, vehicles, trailers, and construction and other equipment on the 57 Fomer Road property; however, nothing was stored on the 67 Fomer Road property. The Town of Southampton, by and through its Zoning Enforcement Officer, brought this action for a judgment ordering the Youmells to clear the two parcels, on the grounds that open storage of such trucks, vehicles, trailers, and equipment is not permitted in the Rural–Residential Zoning District in which the parcels lie. The Town sought a judgment ordering the removal of all the vehicles, equipment, and other materials stored on the 57 Fomer Property, on the grounds that their storage there constitutes either the use of the Property for “construction industry and supplies” or “open storage of materials and equipment,” both of which uses are not permitted in the R–R Zoning District in which the 57 Fomer Property lies. The defendant argued that the principal use of the 57 Fomer Property is for “noncommercial forestry,” which is permitted in the R–R Zoning District.

A “principal use” is defined in the Zoning By–Laws as the main or primary purpose for which a structure or lot is designed, arranged, or intended, or for which it may be used, occupied, or maintained. An accessory use was defined as a use incidental and subordinate to the principal use of a structure or lot, or a use not the principal use which is located on the same lot as the principal structure. In this case, the primary use of these items is for the cutting of trees and the cording of wood on the 57 Fomer Property. The Court found also that the storage of those items on the 57 Fomer Property is both subordinate and reasonably related to that primary use. Each of these items is used in connection with the permitted noncommercial forestry, and the storage of them on the Property constitutes an accessory use. John J. Youmell, Jr. has a sufficient interest in the 57 Fomer Property to justify his being subject to zoning enforcement. John J. Youmell, Jr. owned the 57 Fomer Property from 1986 to 2002, when he deeded it to his son, Sean Youmell, for the nominal consideration of one dollar. He has stored items on the 57 Fomer Property since 1986; since 2005 he has been assessed annual taxes on personal property located on the Property. Most importantly, John J. Youmell, Jr. held himself out to Mr. Oleksak and the Town of Southampton as the owner of the 57 Fomer Property throughout the enforcement process initiated by the Town. Accordingly, that the storage of the following equipment, materials, and vehicles on the 57 Fomer Property is a permitted accessory use to the principal use of noncommercial forestry.

Town of Southampton v Youmell, 2015 WL 461527 (MA Land Ct. 2/3/2015)

Tinseltown Cinema LLC filed an application to build a commercial development that included a movie theater and a restaurant on property in Olive Branch, Mississippi (the City). The Olive Branch Board of Aldermen approved Tinseltown’s application, and Tinseltown successfully applied to have its property rezoned. However, a few days later, the City discovered that Tinseltown’s property was mistakenly zoned as agricultural and residential (A–R) property, which was contrary to the C–4 “planned-commercial district” designation that appeared on the City’s comprehensive zoning plan and official zoning map. Consequently, the Board rescinded its approval of Tinseltown’s application, and denied Tinseltown’s second application. The Board found that a movie theater was out of character for the neighborhood and that Tinseltown’s plan represented undesirable piecemeal commercial development.

At the outset, the court noted that a city does not have the discretion to deny a building permit when an applicant meets the necessary building-code requirements and zoning ordinances. The court also discussed that investments in land and property are significant financial decisions, and a landowner should be able to rely upon a zoning plan to maintain the use and value of his property. As such, no portion of the C–4 zoning district gives the Board the authority to find that a proposed use is simply out of character in a given location when the proposed use is not prohibited by the ordinance. Thus the court found that it was manifestly unreasonable to interpret the C–4 zoning district as though the development of C–4 property is impermissibly piecemeal if the development does not include more than two uses, or the development is not developed along with additional property. Furthermore, it was manifestly unreasonable to prevent a landowner from developing his property in conformity with zoning requirements simply because his property is not large enough to support a larger development. Accordingly, the court found that the Board’s decision was arbitrary and manifestly unreasonable and reversed the circuit court’s judgment and rendered a judgment in favor of Tinseltown.

Tinseltown Cinema, LLC v City of Olive Branch, 2015 WL 872157 (MS App. 3/3/2015)

The opinion can be accessed at: http://judicial.mc.edu/case.php?id=1123248

Plaintiffs commenced this action seeking enforcement of Town of Rutland Code § 130–48(E)(1)(g) which requires that “the minimum setback distance of a communications tower from all property lines shall be equal to 100% of the height of the communications tower.” Plaintiffs alleged that the size of the parcel owned by defendant was insufficient to permit its 370–foot radio transmission tower to meet the minimum setback distance. Plaintiffs sought injunctive relief enjoining the alleged violation.

The appellate court found that the court below erred in denying the part of defendant’s motion seeking summary judgment dismissing plaintiffs’ claim pursuant to Town Law § 268(2), which permits a town to institute any appropriate action or proceedings to prevent or restrain the violation of its zoning laws. This statute sets forth that, “upon the failure or refusal of the proper local officer, board or body of the town to institute any such appropriate action or proceeding for a period of ten days after written request by a resident taxpayer of the town so to proceed, any three taxpayers of the town who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do.” The Plaintiffs admittedly failed to show that the written request contemplated by the statute was made, and thus failed to satisfy a condition precedent to maintaining their claim pursuant to the statute. Because the court found that the written record of their oral request in the minutes of the Town Board meeting did not satisfy the requirement of a written request. The plaintiff’s appeal was dismissed, and the defendant’s motion to dismiss was granted.

Smith v Stephens Media Group-Watertown, LLC, 2015 WL 496796 (NYAD 4 Dept. 2/6/2015)

The opinion can be accessed at: http://leagle.com/decision/In%20NYCO%2020140131493/SMITH%20v.%20STEPHENS%20MEDIA%20GROUP

The Plaintiff was the most recent owner of a lot in the town of Tisbury, which was created in 1994 by a division of land pursuant to the existing structures exemption. The plaintiff sought a permit to tear down the existing structure and build a new one, somewhat larger and taller than the existing structure. The permit was denied on zoning grounds, and the plaintiff appealed to the Land Court, which concluded that the § 81L division created new zoning nonconformities that deprived the plaintiff’s dwelling of the grandfathered status it might have had under the Zoning Act. As a result, the plaintiff, who sought to tear down and rebuild her dwelling approximately ten feet taller, was required to obtain a variance.

Although preexisting nonconforming status runs with the land, the introduction of a new nonconformity to a pre-existing nonconforming residential structure requires a variance. Here, the § 81L division created new zoning nonconformities as to lot size, frontage, and front yard setback, among others. Because the Zoning Act only permits changes to grandfathered structure sonly if the changes themselves comply with the ordinance or by-law, the Zoning Act did not render those new nonconformities lawful, and the 1995 variance was necessary to render the new nonconformities lawful. Because the proposed reconstruction in this case would have expanded nonconformities permitted by variance, the plaintiff was required to obtain a new or amended variance to proceed with her project. Since the plaintiff did not challenge the grounds on which the variance was denied, the court affirmed the holding of the Land Court in favor of the defendants.

Palitz v Zoning Board of Appeals of Tisbury, 2014 WL 7930410 (MA 3/3/2015)

The opinion can be accessed at: http://www2.suffolk.edu/sjc/archive/2014/SJC_11678.html

The trial court held that the City respondents had alienated public parkland without approval by the New York State Legislature in violation of the Public Trust Doctrine, and enjoined respondent New York University (NYU) from beginning any construction, in connection with the expansion project at issue, that will result in any alienation of the three parcels found by the court to be public parkland. Since there was no formal dedication of land for public use, the court determined that an implied dedication may exist when the municipality’s acts and declarations manifest a present, fixed, and unequivocal intent to dedicate. Thus, the party asserting that the land has been dedicated for public use bears the burden in showing a parcel has become a park by implication, by providing evidence of the owner’s acts and declarations and the circumstances surrounding the use of the land.

The appellate court held that petitioners failed to meet their burden because, while the City has allowed for the long-term continuous use of parts of the parcels for park-like purposes, such use was not exclusive, and some of the parcels have also been used as pedestrian thoroughfares. Moreover, any management of the parcels by the Department of Parks and Recreation was understood to be temporary and provisional, pursuant to revocable permits or licenses. Accordingly, the court found that the trial court correctly found that the project-approval process complied with ULURP and SEQRA. Furthermore, the court held that is was not necessary for the Final Environmental Impact Statement (FEIS) to consider the environmental impacts of locating the project in a different neighborhood, as the purpose of the project is for NYU to expand its facilities in the Washington Square Area.

Glick v. Harvey, 121 A.D.3d 498, 500, 994 N.Y.S.2d 118, 120 (NYAD 1 Dept. 2014) leave to appeal granted, No. 2014-1171, 2015 WL 753795 (N.Y. 2/24/2015)

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