Posted by: Patricia Salkin | August 12, 2022

Sixth Circuit Vacates and Remands Shooting Range Zoning Case

This post was authored by Amy Lavine, Esq.

The litigation at issue was commenced in 2018 by Oakland Tactical, which wanted to operate an outdoor shooting range on its property in Howell Township, Michigan, which was zoned Agricultural-Residential. Although “rifle ranges” were not specifically addressed in the zoning ordinance, other than being defined as an “[o]pen air business use,” the township had taken the position that they were allowed in some districts, but not in the Agricultural-Residential District. The district court granted the township’s motion for judgment on the pleadings in September 2020, finding that Oakland Tactical failed to plausibly plead that the Second Amendment required the township to permit shooting ranges in the Agricultural-Residential District, and that it had also failed to establish that the ordinance effectively banned all shooting ranges, since it “appear[ed] on its face to allow shooting ranges in [other] districts” and Oakland Tactical had not applied for rezoning or for a special-use permit to allow a shooting range on its property. Oakland Tactical then moved for reconsideration, and while its motion for reconsideration was still pending, the township adopted zoning amendments that deleted the reference to “rifle ranges” and added a new provision for “sport shooting ranges” that permitted shooting ranges in several districts but not in the Agricultural-Residential District. The district court subsequently denied Oakland Tactical’s motion for reconsideration, and this appeal followed.

The Sixth Circuit explained that it previously followed a two-step test to address challenges under the Second Amendment:

At step one, we required the government to put forward historical evidence to establish that the challenged law regulated activity outside the scope of the Second Amendment. If the historical evidence was inconclusive or suggested that the regulated activity was not categorically unprotected, we moved to step two, where we ascertained the appropriate level of scrutiny and then examined the government’s justification for restricting or regulating the exercise of the activity.

However, this test was inconsistent with the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). As the court observed, under Bruen the correct test to resolve Second Amendment challenges is as follows:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The court found that it was unable to apply this standard based on the record, and therefore it vacated the district court’s grant of judgment on the pleadings and remanded the case for further proceedings. On remand, the court instructed that the district court “should decide, in the first instance, whether Oakland Tactical’s proposed course of conduct is covered by the plain text of the Second Amendment.” If the district court answers this question in the affirmative, then “it should then determine whether historical evidence—to be produced by the Township in the first instance—demonstrates that the Ordinance’s shooting-range regulations are consistent with the nation’s historical tradition of firearm regulation.” The court did not address the zoning ordinance amendments, as the parties neglected to address what effect they might have on the litigation.

Oakland Tactical Supply, LLC v. Howell Township, 2022 WL 3137711 (6th Cir 8/5/22)

This post was authored by Amy Lavine, Esq.

A New York appellate court held in 2021 that a Jewish day school and summer camp did not qualify for preferential zoning treatment as a religious or educational use.

The petitioner, Sid Jacobson Jewish Community Center, owned property in the Village of Brookville in an R-5 zoning district. In addition to detached single-family dwellings, the R-5 district also allowed various conditional uses, including “nonresidential uses which may not be excluded pursuant to the state and federal laws.” The JCC operated a day school and camp on its property and in 2014 it applied for a building permit to expand its facilities and widen the existing driveway to its property. The zoning board denied its application, however, based on a determination that the JCC’s use of the property was not a conditional use permitted in the R-5 district and that the proposed use would be detrimental to the neighborhood.

The court agreed with the zoning board that the JCC’s use of its property did not qualify as either a religious or educational use that would be entitled to deferential zoning treatment. The court first explained that even though “the JCC is a religious organization, the evidence presented to the ZBA supports its determination that the activities and programs offered at the Day School and Camp are standard recreational activities that are offered at any summer camp.” The court similarly found that the JCC’s use of the property was recreational, rather than academic in nature. As it observed, “the evidence in the record established that the camp is operated under a children’s camp permit issued by the Nassau County Department of Health, and the activities offered are predominately athletic and recreational in nature, e.g., sports, swimming, horseback riding, and diving. Further, no evidence was presented to demonstrate that the staff employed by the camp are qualified to instruct in subjects which are part of a regular school curriculum.” The court also upheld the zoning board’s determination that the JCC’s proposed use would be detrimental to the neighborhood. As the court explained, this finding was supported by “specific, detailed testimony” from adjoining property owners that was based on their “personal knowledge,” and this it was not merely based on “subjective considerations such as general community opposition.”

Matter of Sid Jacobson Jewish Community Ctr., Inc. v Zoning Bd. of Appeals of the Inc. Vil. of Brookville, 192 AD3d 693 (NY App Div 2d Dept 3/3/21).

Posted by: Patricia Salkin | August 10, 2022

KS Supreme Court Holds Annexation Agreement Invalid

This post was authored by Amy Lavine, Esq.

The Kansas Supreme Court held in July that a written agreement between two cities to restrict their future annexations was unenforceable.

The agreement at issue was executed in 2006 between the City of Olathe and the City of Spring Hill, and it delineated the boundary for each city’s annexation authority for the area located between the two cities; the City of Olathe agreed not to annex property south of the boundary line, the City of Spring Hill agreed not to annex property north of the line, and both cities reserved their rights to annex properties within their respective boundary lines. The agreement did not include any expiration date and instead stated that it would remain in effect until it was terminated by the mutual consent of both cities. In 2021, the City of Spring Hill notified the City of Olathe that it intended to annex property north of the boundary line, in contravention to the agreement. This prompted the City of Olathe to commence litigation to enforce the agreement.

Upon review, the Kansas Supreme Court concluded that the agreement was unenforceable as a governmental action that could not bind subsequent city councils, and it declined to grant the City of Olathe’s request for injunctive relief. The court explained that its decision was based on the “longstanding common law rule that an elected governing body may not use its legislative power to constrain future governing bodies to follow general policy decisions.” As the court explained:

The essence of this rule lies in the fundamental philosophy of American democracy. Within the constraints of constitutionally protected rights, it is the will of the electorate that determines policy decisions. If an elected governing body is allowed to bind future bodies to a particular course of action, the effect is to silence the will of voters in the future…. To hold otherwise would invite elected governing bodies to make their policies permanent, defeating the ability of future voters to set their own courses, leading to archaic legislation, stagnation, and an inability to respond to changed circumstances.

While this rule prevents “governmental” or “proprietary” agreements from binding future governing bodies, it allows legislatures to undertake certain kinds of “administrative” and “proprietary” obligations. The court explained that governmental and legislative agreements tend to relate to “affairs of political jurisdiction and promoting the public welfare at large. Such powers involve policymaking, and such a function cannot be contracted away….” As relevant to the cities’ annexation agreement, the court noted that “the development, introduction, or improvement of services are, by and large, considered governmental, but the routine maintenance of the resulting services is generally deemed proprietary.” The agreement, the court found, reflected “quintessential policy considerations” regarding the development, introduction, and improvement of services, and it was therefore clearly governmental and could not be considered a valid contract with any binding effect on future elected councils. It was not an agreement to provide services that might be considered “administrative,” the court said, since “the Agreement does not establish who would provide services, what those services would be, when those services would be provided, or even if those services would be provided.”

The City of Olathe argued that the agreement was nevertheless authorized under a state statute relating to annexation contracts. As the court pointed out, however, the statute explicitly only allowed contracts that are authorized by law, and “a contract that is of open-ended duration that seeks to restrain the policy decisions of future municipal governments is, as we have just observed, not authorized by law.” For similar reasons, the court also dismissed the City of Olathe’s contention that the agreement was authorized by its home-rule powers. To hold otherwise, the court emphasized, would undermine the entire concept of home rule, since “it would take away from elected municipal governments the ability to make decisions and act according to the will of the voters if prior governments had committed them to policy courses.”

City of Olathe v. City of Spring Hill, 512 P.3d 723 (Kan 7/1/22).

This post was authored by Sebastian Perez of Touro University Jacob D. Fuchsberg Law Center

When the owner of a photography business requested a variance to store her RV in her driveway, the city board’s denial turned into a question for the Court of Civil Appeals of Oklahoma. The Board’s denial was brought before the District Court on appeal where it was determined the RV was not subject to the restrictions of the local ordinance and granted the variance. This appeal follows.

Plaintiff filed a variance requesting that the RV she used for her photography business be exempt from Broken Arrow Zoning Code Section 5.4(K)(4), which prohibited recreational vehicles from parking or being stored on the premises for more than 24 hours, to park in front of the building. The Board denied the request after a hearing and claimed it was because several application requirements were not met. Plaintiff appealed the Board’s decision to the District Court of Tulsa County and a trial de novo was held. The trial court held Plaintiff’s RV was a commercial vehicle and exempt from the city’s ordinance and granted the variance allowing the RV to park on front of the property. The Board appealed the district court’s order.

The Court of Appeals of Oklahoma reviewed the lower court’s order to determine whether it was against the clear weight of the evidence or contrary to law and reviewed questions of law de novo. The Board argued that the trial court erroneously applied the definition which looked to use of the vehicle instead of its design and created a loophole where RV owners could store their vehicles in their driveways by licensing them as a commercial vehicle and using them for business purposes. The Court first held that the vehicle’s classification as a commercial vehicle did not exempt it from further requirements as a recreational vehicle under the ordinance. Based on the plain meaning of the definition for a recreational vehicle within the local zoning code, it was clear the RV fell within that category. Also relevant, nothing in the code exempted an RV from the restriction of parking in front of the building when classified as a commercial requirement. The Court then held the trial court erred in determining the Plaintiff’s RV was not subject to the parking restriction of the statute. The Court further concluded that the trial court erred in granting the Plaintiff a variance because she failed to meet her burden of proving each criteria necessary to obtain a variance. The Court agreed with the Board failed to meet the requirement of a variance where the trial court did not find a condition or circumstance peculiar or unique to the Plaintiff’s property; the application of the ordinance to the Plaintiff’s property did not create n unnecessary hardship; and the variance granted was not the minimum necessary to alleviate the alleged unnecessary hardship.

McCleary v City of Broken Arrow Board of Adjustment, 2021 WL 6881259 (OK App. 2/9/2022) 

This post was authored by Sebastian Perez of Touro University Jacob D. Fuchsberg Law Center

When a group of landowners had their development application denied by the Hillsborough County Board of County Commissioners after its extensive review and recommendation of approval from the zoning hearing master, the application was denied and appealed to the circuit court where the denial was upheld. This appeal followed.

The Petitioners hoped to develop a “planned village” community in a rural area of southern Hillsborough County. Their development application was reviewed by numerous government agencies, and none opposed it. When the application went before the Hillsborough County Commission at a public hearing, four residents had spoken out against it. Dividedly, the Commission voted against the application outright. On first tier review in the circuit court, it determined the Petitioners failed to meet their burden of showing their proposed rezoning was consistent with the county’s comprehensive plan.

During the second-tier review, the appellate court felt the lower court’s decision could not be justified because of the overwhelming evidence that demonstrated the proposed development’s consistency with the requirements of the planned development zoning classifications and the comprehensive plan. However, the Court could not give relief to the Petitioners despite the lower court’s error because their scope of the review was limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. The Court was guided in part by the extreme deference to the purported expertise of agency fact-finding in zoning determinations. The Court concluded Petitioners’ property rights were curtailed but could not grant relief because it was constrained by the standard of review.

Balm Road Investment, LLC v Hillsborough County Board of County Commissioners, 2020 WL 413683 (FL App. 2/11/2022)

This post was authored by Tyler Doan, JD

Shelbourne, the prospective purchaser of certain property in the Town of Greenburgh, applied to the Town Board for a special permit in relation to its proposed construction of an assisted living facility on the property they intended to purchase. The local zoning ordinance authorizes the Town Board to issue special permits for the development of said facilities within the zoning district so long as the project complies with conditions set forth in the Greenburgh Code. The Town Board ultimately approved the special permit. Petitioners commenced the lawsuit pursuant to CPLR article 78 to review the Town Board’s determination as well as a conditioned negative declaration pursuant to the New York State Environmental Quality Review Act (SEQRA). Respondents moved to dismiss the petition. The Supreme Court granted the motions to dismiss the petition based on the petitioners’ lack of standing and on the alternative ground that the proceeding was barred by the doctrine of res judicata.

The Appellate Court stated that “Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” and that the rule applies not only to claims actually litigated but claims that could have been raised during said litigation. The Court determined that the branch of the petition which was to review the SEQRA determination was properly barred due to a previous proceeding involving the same petitioners as well as the ZBA where the Supreme Court had determined that the petitioner’s challenge to the SEQRA determination was time-barred.

The Appellate Court further reasoned that the petitioners lacked standing. The petitioners “did not allege any legally cognizable injury with respect to an anticipated increase in the number of emergency calls due to the construction of the proposed assisted living facility . . .” The Court determined that those concerns were outside the zone of interests that the Greenburgh Code sought to protect. Additionally, the Court reasoned that the petitioners’ generalized allegations that the Town Board’s determination may result in a road safety hazard for its emergency vehicle were conclusory and speculative, and unable to sustain standing.

The Appellate Court affirmed the Supreme Court’s decision and dismissed the petition.

Greenville Fire District v. Town of Greenburgh, 2022 WL 468413 (NYAD 2 Dept. 2022)

This post was authored by Amy Lavine, Esq.

A late appeal was permitted in a Michigan case decided in January 2022, Green Skies Healing Tree, LLC v. Flint Zoning Bd. of Appeals. The case involved a variance application that was denied in the spring of 2020 just after the Covid-19 pandemic began. At the time, the zoning board and other city departments had discontinued their normal procedures and were operating remotely, which led to a certain amount of confusion regarding procedural matters. The appellate court concluded that the property owner’s late appeal was excusable under these unusual circumstances, and as a result the trial court should have exercised its equitable powers to expand the time period for appealing the zoning board’s decision. The court emphasized that the plaintiff was unable to determine when it was required to file its appeal because the zoning board’s schedule had been suspended and it was unclear when it would issue the meeting minutes reflecting the variance denial. The plaintiff had also informed city employees repeatedly that it needed to know when the minutes would be approved so that it could file its appeal, and it made numerous attempts to contact city employees regarding the status of the meeting minutes. The plaintiff had relied on promises made by two city employees that they would provide notice when the minutes were approved, and as the court concluded, the plaintiff’s reliance was reasonable under the circumstances. Allowing the plaintiff’s late appeal was also appropriate because the plaintiff’s appeal was only a week late and the city conceded that there was no prejudice as a result of this delay.

Green Skies Healing Tree, LLC v. Flint Zoning Bd. of Appeals, 2022 WL 188313 (Mich. App. 1/20/22).

This post was authored by Amy Lavine, Esq.

A New York appellate court held in February that a zoning amendment that prohibited concrete plants except in the Industrial-Office-Commercial District was improperly adopted and invalid due to the failure of a conflicted town supervisor to recuse herself from the relevant town board meetings.

The supervisor’s conflict arose because she lived in a residential subdivision that was located close to an existing concrete plant and she was also on the board of the homeowners association, which was the petitioner in related litigation seeking to shut the plant down. The homeowners association had sued the concrete plant as well as the town zoning board, which had determined in administrative proceedings that the concrete plant had a valid use variance and could continue operating the facility. The supervisor had acknowledged to the town board that her involvement in this litigation raised a conflict of interst, but despite being conflicted she still attended and participated in meetings regarding the local law and only recused herself from voting on the zoning amendment.

The court found that the supervisor’s involvement in the homeowners association lawsuit was “an interest in the local law which went beyond mere expressions of personal opinion or an interest shared by the majority of property owners in the town.” Considering the circumstances of the case, the court agreed with the lower court’s determination that the supervisor’s “limited recusal was insufficient to remedy the appearance of impropriety which arose from.”

Matter of Titan Concrete, Inc. v Town of Kent, 2022 NY Slip Op 01029 (NY App Div 2d Dept 2/16/22).

This post was authored by Amy Lavine, Esq.

A Mississippi case decided in 2021 addressed changes to the statutory requirements for pleading and process service in cases challenging decisions made by county boards of supervisors.

Prior to the legislative amendments, aggrieved parties were required to file a bill of exceptions in order to initiate an appeal, but the Mississippi Supreme Court reviewed this requirement in 2018 and overruled it based on the history of bills of exceptions and “in an effort ‘to restore fairness and sensibility to the bill of exceptions process[.]'” The state legislature then revised the statute in 2019 to remove the bill of exceptions requirement and replace it with a requirement for filing a notice of appeal. Interpreting this requirement was therefore a matter of first impression for the Mississippi Supreme Court when the issue was raised in American Tower Asset Sub, LLC v. Marshall County.

The specific issue before the court was whether American Tower’s notice of appeal was timely where it had filed the notice within the prescribed 10 day period but it failed to deliver a copy to the president of the board of supervisors and instead served the chancery clerk, who also served as the clerk to the board of supervisors. The county claimed that this defect was jurisdictional, but the court disagreed. As it explained, jurisdiction was established upon filing the notice of appeal, not service, and while the amended statute required a copy to be “delivered” to the president of the board of supervisors, “the statute does not specify the exact method of service or delivery that is required.” As a procedural rather than jurisdictional defect, American Tower’s service of process could therefore be cured, and it was reversible error for the circuit court to have dismissed the appeal.

American Tower Asset Sub, LLC v. Marshall County, 324 So. 3d 300 (Miss. 9/2/21).

This post was authored by Amy Lavine, Esq.

In a case decided in 2021, the Nebrasks Supreme Court concluded that a sanitary and improvement district is not a “person” having “private property” for which it can bring a takings claim against the state. Rather, as a political subdivision, the district was created by and subject to the state, and was thus it could not assert an inverse condemnation action seeking compensation from the state.

Sanitary and improvement districts are formed under Nebraska law as units of local government, with their primary purpose being to install and maintain public improvements such as streets, sewers, utility lines. Sanitary & Improvement Dist. No. 67 was created to serve a subdivision located to the east of Highway 75 near Bellevue, Nebraska. It maintained two access routes to the highway for subdivision residents until 2003, when the Nebraska Department of Transportation and Sarpy County rerouted both access routes as part of a project to reconstruct Highway 75. The district contended that it was the “owner” of these access routes based on a dedication included in the subdivision plat and that it was entitled to just compensation because the rerouting constituted a “taking” or “damaging” of its property. It failed to attach a copy of this dedication to its petition, however, and it conceded that an alternative route continued to afford highway access from the streets and roads within the subdivision.

The trial court dismissed the district’s inverse condemnation suit based on a lack of standing, finding that it failed to establish that it was a real party in interest because its pleadings neither alleged that its property had been taken nor that it was an “abutting landowner” to the blocked highway accesses. As it concluded, the subdivision plat “did not grant [the district] an ownership interest in this property; quite the contrary, it divested [the district] from any ownership interest it may have had and transferred ownership to the public[,] thereby converting the private roads constructed by [the district] into public roads.”

The Nebraska Supreme Court affirmed this dismissal on appeal. Although the district argued that the issue of ownership was a question of fact that shouldn’t have been decided at the pleading stage, the court explained that the district wasn’t entitled to an evidenciary hearing because the motion to dismiss presented a facial challenge to the court’s subject matter jurisdiction and the trial court wasn’t required to consider evidence outside the pleadings to resolve this issue.

In its second assignment of error, the district argued that the trial court erred in finding that “it was not the real party in interest” and thus lacked standing. The trial court had reached this conclusion based on its belief that a “dedication instrument could not have conveyed to [the district] ownership of the roads at issue.” The Nebraska Supreme Court agreed that the district wasn’t a real party in interest, but it relied on slightly different grounds, finding that the district wasn’t a “person” capable of bringing an inverse condemnation action. As it explained:

the [district] ‘is a legislative creature, a political subdivision of the State of Nebraska.’ Statutes prescribe the [district’s] formation as ‘a public corporation of this state.’ Once formed, the [district] has no inherent authority to hold an interest in property; it, unlike a ‘person,’ can exercise only those powers expressly granted to it by statute or necessarily implied to carry out its expressed powers.’… so too could the Legislature ‘”‘at its pleasure . . . take without compensation such property'”‘ as it has allowed the [district] to hold.

Accordingly, because the district was not a “person” having “private property,” it was not a real party in interest and therefore lacked standing to bring an inverse condemnation action against the state.

Sanitary & Improvement Dist. No. 67 of Sarpy Cty. v. State of Neb. Dep’t of Roads, 309 Neb. 600 (2021).

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