The Town of Harpersfield Planning Board granted site plan approval for respondent New York Safety Track LLC to operate a motorcycle safety training facility at a converted former airport. In January 2013, Safety Track was advised by respondent Town of Harpersfield Code Enforcement Officer that the races and other large events occurring at the track were not authorized uses pursuant to the site plan. An agreement was executed between Safety Track and the Planning Board that “purported to outline Safety Track’s approved land uses for May 1, 2013 to December 31, 2013.” The agreement was challenged in a combined CPLR article 78 proceeding and declaratory judgment action and, in January 2014, Supreme Court “annulled it and made declarations regarding the scope of Safety Track’s permissible land uses” During the pendency of this appeal, the court reversed the part of the January 2014 judgment that made declarations regarding the uses permitted under the site plan approval.

Safety Track subsequently requested a determination by the CEO as to whether specified activities at the track would require further site plan approval. The CEO issued his determination in which he declined to assess whether the activities were permitted under the terms of the January 2014 judgment and found that most of them would not require further review under the Site Plan Review Law. Petitioners commenced the instant proceeding to challenge the CEO’s determination. The state Supreme Court granted the petition annulling certain portions of the CEO’s determination. Safety Track and respondent Mountain Top Airfield LLC and, separately, the CEO, appealed from that judgment.

Respondents argued that Supreme Court erred in concluding that the CEO irrationally refused to take a position on whether the specified uses ran afoul of the January 2014 judgment. However, since the court subsequently reversed that part of the January 2014 judgment, and the CEO could not be faulted for failing to adhere to or otherwise interpret judicial declarations that no longer existed, the judgment before the court was not permitted stand. In the absence of the January 2014 judgment, the court found nothing irrational in the determination of the CEO that the bulk of the proposed activities did not constitute a “change in the use” of the property or otherwise constitute activity that would be subject to further site plan review.

Ballard v New York Safety Track, LLC , 134 A.D. 3d 1322 (2 Dept. 12/15/15)

This case arose from a citizen complaint filed with Orange County against the Foleys for breeding and selling toucans from their residentially zoned property. In response to the complaint, county employees investigated and cited the Foleys for having accessory buildings on their property without the necessary permits, which the Foleys used to house the toucans. The Foleys requested a determination from the county zoning manager as to whether the ordinance under which the Foleys were cited was interpreted properly. The zoning manager determined that the ordinance was interpreted properly, and that the Foleys were required under the ordinance to obtain permits for the accessory buildings on their property. This was affirmed by the Board of Zoning Adjustment, the Board of County Commissioners, the Florida Ninth Judicial Circuit Court, and the Fifth District Court of Appeal.

The Foleys alleged a substantive due process violation: the County’s upholding of the zoning manager’s final determination of the interpretation of the ordinance. The Court said that the enforcement of a valid zoning ordinance is an executive, non-legislative act, which is not subject to substantive due process protections. Next, the court found that the Foleys could not establish a “class of one” equal protection claim, since they failed to identify a similarly situated comparator that was intentionally treated differently.

The Foleys alleged that their request for the zoning manager’s final determination and their various appeals amount to compelled and commercial speech. However, the Foleys’ voluntary actions did not constitute compelled or commercial speech because they did not amount to a government regulation that compelled them to express a message in which they did not agree, nor were they commercial in nature. Finally, the court held that the voluntary transfer of a possessory interest did not constitute a seizure under the Fourth Amendment. Accordingly, District Court lacked federal-question jurisdiction since these federal claims were absent a plausible foundation.

Foley v Orange County, 2016 WL 361399 (11th Cir. CA 1/29/16)

Willowell Foundation received a conditional-use permit to build a community center and related improvements on a large plot of land in the Town of Monkton. Willowell’s 229.8–acre plot is located in Monkton’s Medium Density Rural Agricultural Zoning District (RA 2 MD) and is subject to the Unified Planning Document for the Town of Monkton. For a proposed development that is “neither specifically prohibited nor permitted nor listed” as a conditional use, the UPD provides the Monkton Development Review Board (DRB) may hear the application as one for conditional use “when in the opinion of the DRB the proposed use does not detract from the traditional rural agricultural character of the town, and is compatible with other uses” in the relevant zoning district. Because some of Willowell’s proposed activities and structures were permitted uses in the RA 2 MD, but others were either conditional uses or not listed, Willowell applied to the DRB for a conditional-use permit, which entailed a site plan review. The DRB approved Willowell’s application, subject to certain conditions. The Environmental Division upheld the DRB’s conditional-use and site-plan approval, but voided all but one condition prescribed by the DRB and required new modifications to the project.

The neighbors first claimed that Willowell’s application was fatally incomplete because it did not submit certain state permits with its conditional-use application; however, the court found that the neighbors waived this argument by not raising it at the Environmental Division. The court then analyzed whether two phrases on the subdivision plat—“Agricultural Reserve” and “Building Envelope”—imposed land-use restrictions on Willowell’s project. Willowell argued that these were vague phrases and, because land-use restrictions should be construed narrowly in favor of the landowner, any ambiguity should be decided in Willowell’s favor. The court agreed, relying on the Environmental Division’s finding that no existing document defined the two-word phrases or established that the phrases were meant to be enforceable conditions.

Next, neighbors claimed testimony offered at the subdivision-approval meeting pointed towards the subdivision developers’ intent, and therefore the testimony should have been admitted to clarify ambiguities in the plat phrases, specifically the term “agricultural reserve.” The court found that even if the developer’s testimony at the subdivision-approval meeting indicated the intent that the terms on the plat mean as neighbors have argued and that the DRB intended to impose additional conditions on the subdivision permit, no evidence existed demonstrating the conditions were incorporated into the final resolution. Lastly, the court found that the Environmental Division did not err in directing the zoning administrator to issue a zoning permit on receipt of a revised site plan, because when a zoning administrator grants a zoning permit, it is a ministerial act.

In re Willowell Foundation Conditional Use Certificate of Occupancy, 2016 WL 362733 (VT 1/29/16)

Rockne Cole, Jon Fogarty, and Mark McCallum filed an application to rezone certain property owned by Iowa City. The rezoning application was denied by the City Council, and Cole, along with ICATS (an unincorporated association), petitioned for a writ of certiorari with the district court to contest the City Council’s refusal to rezone the property. Both parties filed motions for summary judgment, and the district court granted the City Council’s motion, annulling the writ. On appeal, Cole and ICATS asserted that the district court erred in concluding they lacked standing to challenge the City Council’s decision denying the rezoning application.

Cole claimed since he was one of the applicants who applied for rezoning he had standing to seek review of the propriety of the denial. As to ICATS’s standing, plaintiffs claimed that the unincorporated association had standing to assert the rights of its members in challenging the rezoning denial. Here, neither ICATS nor Cole owned property near the parcel at issue.   Additionally, even though ICATS may have been formed before the application was filed, it was not listed on the application as a party seeking the parcel to be rezoned. Moreover, even if ICATS had standing to assert the rights of its members as claimed on appeal, there was no indication that ICATS’s individual members had standing to challenge the rezoning denial. Likewise, Cole’s application stated the rezoning was needed “to protect our cherished commons, and allow future generations of children to enjoy the bright sunlight” and was needed for “our community to grow and prosper without compromising the needs of future generations.” However, these generalized claims were insufficient to establish jurisdiction.

Because neither Cole nor ICATS could show either a specific personal or legal interest or that the City Council’s action to deny the CB–5 rezoning application injuriously affected them, the court affirmed the district court’s grant of summary judgment to the City Council and the court’s annulment of the writ of certiorari.

Iowa Coalition Against the Shadow v City Council of Iowa City, 2016 WL 363742 (1/27/16)

In August 2013, the Town of Eddington’s Planning Board approved a landowner’s application for a permit to create a one- to five-acre quarry, to be accessed by a private way, on property in Eddington that Hughes was under contract to purchase. In September 2013, Hughes filed a new application seeking permission to use the property as a larger, twenty-acre quarry. At public hearing, the Planning Board voted to deny the application because the private way did not provide an appropriate access way for the proposed larger quarry. Hughes then submitted a new application that proposed a separate access road directly from Route 9. Soon after, the members of the Planning Board attended a public meeting of the Board of Selectmen and presented the recommendation for a moratorium on quarries. The Board of Selectmen voted to deny the request for a moratorium.

In December, the Board of Selectmen held a public meeting at which a member of the public urged the Selectmen to reconsider placing a moratorium on quarries as proposed by the Planning Board. Also, in late 2013, Hughes submitted its first information request to the Town, seeking correspondence along with meeting agendas and minutes pursuant to the Freedom of Access Act (FOAA). In January 2104, the Planning Board, with six members present, unanimously voted to go into executive session for “Consultation with Legal Counsel,” citing to the FOAA. Around the time of the executive session, drafts of a proposed ordinance that would establish a moratorium on quarries were prepared. In April 2014, Hughes filed a three-count complaint in the Superior Court seeking declaratory and injunctive relief, which was transferred to the Business and Consumer Docket. The court found for the town, and on appeal, Hughes argued that the court erred in determining that the Town of Eddington Planning Board and Board of Selectmen conducted a valid joint executive session, invoked for the purpose of consulting with counsel.

The court first noted that an executive session may only be held for a purpose that is enumerated in section 405 of the FOAA, such as for “consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency.” Here, the session was described by the Planning Board as being sought for the purpose of having counsel “meet with the Planning Board in Executive Session to expand on the basis for his wording in the proposed Moratorium Ordinance.” The Town did not “finally approve” any ordinance or rule in executive session, but consulted with counsel during the executive session, and publicly deliberated and voted to present a proposed moratorium to the Board of Selectmen. The Board of Selectmen then held a public hearing before submitting the proposed moratorium to the vote of the Town’s residents at a special town meeting. Only after a majority vote of the residents at the town meeting that the moratorium was actually adopted. Moreover, the FOAA contained no prohibition against municipal boards simultaneously entering into executive session to jointly consult with counsel about how to comply with the law in carrying out their respective duties. Accordingly, the court affirmed the trial court’s holding that each Board’s consultation with legal counsel in executive session complied with the conditions specified in the FOAA.

Hughes Bros., Inc. v Town of Eddington, 2016 WL 159296 (ME 1/14/2016)

The City of Los Angeles Prop D enacted City Ordinance No. 182580, which repealed the existing sections of the municipal code relating to medical marijuana, and enacted new provisions. Prop D provided that it was “unlawful to own, establish, operate, use, or permit the establishment or operation of a medical marijuana business …” in the City. However, there was a limited exception for medical marijuana businesses meeting several requirements, including the condition that the medical marijuana business must have timely registered under both the Interim Control Ordinance and the Grandfather/Lottery Ordinance. The Interim Control Ordinance prohibited dispensaries except for any dispensary established before the ordinance’s effective date (September 14, 2007) and operating in accordance with state law, if the owner or operator of the dispensary were to register with the City Clerk by filing certain identified documents within 60 days (by November 13, 2007). The Grandfather/Lottery Ordinance allowed all collectives which had been in operation on or before September 14, 2007 to register for the right to participate in a lottery, from which 100 collectives would be chosen for inspection and, if all other requirements were satisfied, registration. Other requirements included restrictions on hours of operation, limits on proximity to land zoned residential, and limits on proximity to schools, parks, religious institutions, and other medical marijuana businesses. The City prevailed on a demurrer to appellants’ first amended complaint, and on appeal the Appellants challenged the process by which Prop D was enacted.

Appellants’ principle contention was that Prop D was adopted in violation of Government Code section 65804, a section of the state Zoning Act, which imposes minimal procedural standards for city zoning hearings. The City argued that the Zoning Act requirements applied only to the enactment of ordinances by local legislative bodies and not to the enactment of ordinances by initiative or referendum (whether in a charter city or general law city). The court agreed, finding that “when zoning is enacted by initiative, landowners have the same opportunity as their opponents to present their case to the electorate.” Therefore, it held that any failure to follow the Zoning Act notice and hearing requirements for council-enacted ordinances had no effect on the validity of Prop D.

Appellants next argued Prop D was preempted by California’s Medical Marijuana Regulation and Safety Act (MMRSA), which created a state licensing scheme for medical marijuana. However, because Prop D was a municipal initiative on a wholly municipal matter, it was properly enacted without a planning commission hearing. Moreover, the MMRSA stated that nothing in its regulatory scheme “shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.” It also explicitly stated that issuance of a state medical marijuana license “shall in no way limit the ability of the City of Los Angeles to prosecute any person or entity for a violation of, or otherwise enforce, Proposition D”. Accordingly, the court affirmed the trial court’s dismissal of the Appellants’ claims, and denied leave to amend.

Safe Life Caregivers v City of Los Angeles, 2016 WL 146695 (Ca. App. 1/13/2016)

The NYS DEC will take comments through February 13, 2016 on proposed changes to the Conservation Easement Regulations – NYCRR Part 529. The purpose of the proposed new regulations is to provide standards and a procedure for DEC staff to utilize when modifying or extinguishing a conservation easement administered by the Department. The proposed new standards and procedures are as follows:

  1. a) The standards for the modification of a DEC conservation easement include:
  2. A modification of a DEC conservation easement, other than a modification to the stated purpose(s) as set forth in a DEC conservation easement, must not alter, and must be consistent with, the stated purpose(s) of the DEC conservation easement; and
  3. A modification of a DEC conservation easement must not affect the perpetual nature of the DEC conservation easement; and
  4. The modification must comply with all other existing policies, laws or regulations, including the specific requirements of the provisions of ECL section 49-0307, in effect at the time of the modification; and
  5. The proposed modification of a DEC conservation easement shall not result in any net loss of benefits to the state, as determined by the department in its sole discretion, including: consideration of any change in the level of public recreational opportunities or any change to the limitations or restrictions on the development, management or use of the property, or any other real property owned by or under the control of the grantor, for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the area where the property is located in a manner consistent with the public policy and purpose set forth in ECL section 49-0301.

(b) The standard for the modification of the purpose(s) or the extinguishment of a DEC conservation easement shall require a finding by the department that the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in the ECL section 49-0301.

Section 592.4 Procedures

The Department must comply with the following procedures for the modification or the extinguishment of a DEC conservation easement.

(a) Written notice to grantor and entities entitled to third party enforcement rights. The department must provide written notice of the proposed modification or extinguishment of a DEC conservation easement to the grantor and entities designated in the DEC conservation easement as having third party enforcement rights by certified mail, return receipt requested to the address on file with the department for the respective entities; and

(b) Public notice, comment period, non-adjudicatory hearing.

 

  1. Public Notice.
  2. For modification only of DEC conservation easement. The department must publish public notice in the ENB of the department’s intent to modify a DEC conservation easement including a general summary of the proposed modification(s) and the opportunity for the public to submit written public comments to the department. The public comment period shall begin on the date the notice of the public comment period appears in the ENB; or
  3. For modification to the purpose(s) or extinguishment of DEC conservation easement. The department must publish public notice of its intent to modify the purpose(s) or extinguish a DEC conservation easement in the State Register, the ENB and in a newspaper having a general circulation in the county where the property is located. The public notice shall include the facts supporting a finding that the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in the ECL section 49-0301 and the date of a non-adjudicatory hearing to be held at least thirty (30) calendar days after the date of the publication.
  4. Public comment period. The department must provide for a public comment period for thirty (30) calendar days to accept public comments related to the proposed modification to, or extinguishment of, a DEC conservation easement. The department may provide for the receipt of public comment through the use of meetings, exchanges of written material, or other means during the public comment period.
  5. Non-adjudicatory public hearing. For proposals which include the modification of the purpose(s) or extinguishment of a DEC conservation easement, the department must conduct a non-adjudicatory public hearing to be held during the public comment period to provide the public with an opportunity to be heard on the modification of the purpose(s) or the extinguishment of a DEC conservation easement.

(c) Commissioner’s determination only for modification to the purpose(s) or extinguishment of DEC conservation easement.

  1. For any proposed modification to the purpose(s) or the extinguishment of a DEC conservation easement, the Commissioner must make a written determination that the conservation easement can no longer substantially accomplish its original purposes. The proposed modificaton to the purpose(s) or extinguishment of a DEC conservation easement following closure of the public comment period, shall consider the following reasons in support of the determination: (1) why the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in ECL section 49-0301, and determine if it should therefore be extinguished or modified; (2) if modified, the proposed modification to the purpose(s) set forth in the DEC conservation easement will comply with the requirements of section 592.3 of this Part and be consistent with the policies and objectives set forth in ECL section 49-0301; and (3) if a DEC conservation easement is modified or extinguished pursuant to this Part, it shall be set forth in an instrument which complies with the requirements of ECL section 49-0305.
  2. The Commissioner must publish the determination and a summary of the determination in the ENB. The recording of a deed or other conveyance document in the county clerk’s office where the DEC conservation easement is located must be filed no earlier than one hundred twenty (120) calendar days after the notice of the Commissioner’s determination appears in the ENB.

Comments may be sent to:

Jim Sessions, Forester

Division of Lands and Forests

625 Broadway

Albany, NY 12233-4250

ConservationEasements@dec.ny.gov

 

For more information see: http://www.dec.ny.gov/regulations/2359.html

Timothy and Susan Kristjanson filed an application with the BZA requesting a conditional use permit to operate a kennel for dogs and cats on their 9.775–acre property, which was zoned as an Agricultural District. The application was denied by a zoning official for the BZA on the ground a kennel is a conditional use under the Union Township Zoning Regulation. Although the Kristjansons did not appeal the denial of their application, the BZA held a hearing on the application. Plaintiffs-appellants, Thomas and Melissa Queen, appealed the decision of the Fayette County Court of Common Pleas affirming the decision of defendant-appellee, the Union Township Board of Zoning Appeals (BZA), granting an application for a conditional use permit.

Appellants first argued the BZA erred in believing it had no authority to deny the Kristjansons’ application for a conditional use permit. However, the Zoning Resolution provided that the BZA “may grant conditional approval for use of the land,” and thus plainly stated that the granting of a conditional use permit is discretionary and not mandatory. Appellants next argued the common pleas court erred in affirming the BZA’s decision because the BZA “failed to make any findings, oral or written, that it considered all the requirements for conditional uses set forth in the zoning resolution.” Here, Section 9.03 of the Zoning Resolution, which governed standards for conditional uses, did not require the BZA to make specific or express findings as a prerequisite to granting a conditional use permit. Moreover, in its decision affirming the grant of the conditional use permit, the common pleas court found that the BZA’s findings pursuant to Section 9.03 were “implicit in its decision to grant the conditional use permit with supplemental conditions.”

Lastly, appellants argued that the BZA’s decision to grant the conditional use permit was not supported by the preponderance of reliable, probative, and substantial evidence because the BZA failed to consider and address the six factors in Section 9.03. The court found that there was ample evidence in the transcript and the minutes of the June 17, 2014 hearing, to show the BZA considered: Mrs. Kristjanson’s testimony with regard to her proposal for a kennel, the concerns raised by the area residents about the kennel, and evidence relating to the applicable factors listed in Section 9.03. Even though the BZA did not explicitly address each of the factors listed in Section 9.03, it clearly considered and addressed them in its general discussion of the merits of the application and in prescribing specific additional conditions on the conditional use permit granted to the Kristjansons. Accordingly, the court found that the common pleas court did not err in affirming the decision of the BZA to grant the Kristjansons’ application for a conditional use permit.

Queen v Union Townships Board of Zoning Appeals, 2016 WL 228268 (OH App. 1/19/2016)

EMAC, L.L.C. filed an action for declaratory judgment, damages and attorney’s fees against the County of Hanover and the Board of Supervisors of the County of Hanover. EMAC alleged impermissible discrimination in the Board’s denial of an extension of a conditional use permit (CUP) allowing placement of signs to advertise mall that had not yet been developed. The County and the Board (collectively “defendants”) filed a demurrer and motion to dismiss, the circuit court granted the defendants’ demurrer and motion to dismiss, and EMAC appealed.

EMAC first argued that the circuit court erred when it sustained the demurrer and motion to dismiss based upon the grounds that EMAC did not allege that the existing zoning ordinance was unreasonable without a CUP permitting a destination commerce sign on its property. Here, EMAC’s amended complaint alleged that the Board discriminated against it by rejecting its application for an extension of CUP–2–12 for the southern sign while granting Northlake’s extension request of CUP–2–12 for the northern sign. The court noted that an impermissibly discriminatory decision is unreasonable regardless of whether the existing zoning ordinance is reasonable as applied to an applicant’s land. Therefore, if a landowner alleges that a zoning decision impermissibly discriminated against it, it has implicitly alleged that the decision was unreasonable. Accordingly, the court erred in finding that EMAC was required to allege that the existing zoning ordinance was unreasonable as applied to its land in order to state a cause of action, and in granting defendants’ demurrer and motion to dismiss on that basis.

As an alternative basis for its decision to grant defendants’ demurrer, the circuit court stated that the amended complaint and exhibits demonstrated that the decision to deny EMAC’s extension request was supported by a rational basis and was fairly debatable. The court found that when viewed in the light most favorable to the plaintiff, Northlake and EMAC were not similarly situated parties. While Northlake, the owner of the land designated for the northern sign, was listed as an applicant on the application for CUP–2–12 and it gave County representatives permission to enter its land to inspect upon request, neither EMAC, the owner of the land designated for the southern sign at the time of the application for CUP–2–12, nor its attorney-in-fact or tenant was an applicant, and EMAC gave no such permission. Thus, Northlake was seeking an extension for a valid portion of CUP–2–12, while EMAC was seeking an extension for a void ab initio portion of CUP–2–12. Additionally, Northlake had an agreement with the outlet mall developer concerning the operation of the northern sign on its property, and there was no controversy concerning whether extension of that CUP is consistent with the public interest of developing the outlet mall and constructing the sign.

For these reasons, the court found that is was rational, fairly debatable and consistent with the public interest to allow the CUP for the sign on EMAC’s property to lapse so that the Board could evaluate the appropriate placement of the southern sign consistent with the public interest. It therefore affirmed the circuit court’s holding.

EMAC, LLC v County of Hanover, 2016 WL 164132 (VA 1/14/2016)

Petitioner Mary Sue DiFebo argued that the Superior Court erred by dismissing her amended petition seeking review of a Board of Adjustment decision that granted a variance application for two land plots located near DiFebo’s home to be subdivided into four flag lots. The Superior Court dismissed, finding DiFebo had not named the owners of the two properties that were the subject of the Board’s proceeding within the thirty-day statute of limitations. As an alternative reason for dismissal, the Superior Court found that DiFebo had not met the requirements for relation back under Superior Court Civil Rule 15(c)(3).

DiFebo first argued that the Superior Court erred because it held that her amendment to add the indispensible property owners could not relate back to her timely initial filing unless it was filed within the statute of limitations under the relevant statute which, she argued, applied the old version of Rule 15(c). The court found that the Superior Court failed to take account of a 1993 amendment to Rule 15(c); importantly, Rule 15(c)(3) allows for the relation back of an amendment as long as the rule’s requirements are satisfied “within the period provided by … these Rules for service of the summons and complaint.” Thus, DiFedo’s petition should not have been dismissed on this ground.

One of the conditions for relation back to apply was that DiFebo was required to show that, within the period of time for service, the property owners “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against them.” However, the court noted that Delaware courts generally decline to find a mistake when the plaintiff cannot demonstrate an intent to include the unnamed party before the limitations period expired, but will find a mistake if the plaintiff intended to sue certain parties but was misled as to the identity of those parties. Here, the only excuse for not naming these parties was that DiFedo’s attorney did not research who the owners of the properties were. Accordingly, because the Superior Court correctly determined that DiFebo did not satisfy all of Rule 15(c)(3)’s relation back requirements, the court affirmed the Superior Court’s judgment dismissing DiFebo’s amended petition.

Difebo v. Board of Adjustment of New Castle County, 2016 WL 297490 (DE 1/25/2016)

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