Editor’s note: Thank you to the Amato Law Group, PLLC for this contribution to the blog.

In July, 2012, 7-Eleven filed a complete site plan application (“Application”) to the Town of Babylon (“Town”) Planning Board for a proposed store in West Babylon, New York.  In response to Town comments, 7-Eleven made subsequent revisions to the site plan, incorporating numerous suggestions and comments by the Town departments.  Further, subsequent expert submissions addressed the Town’s concerns.  In particular, in November 2013, the Town Traffic Division issued a memo noting that all prior concerns and objections were met.  In December, 2013, a public hearing was held before the Planning Board.  During the public hearing, community members, including a nearby 7-Eleven store owner, voiced opposition to the store.  The Planning Board left open the record for the submission of a traffic study by 7-Eleven, as well as further public comment.  After this public hearing, the Town’s Traffic Division issued a new memorandum setting forth objections to the Application, in particular regarding the number of on-site customer truck parking spaces and the claim that the delivery zone could not accommodate a tractor-trailer.   This memorandum set off a two-year, back-and-forth between applicant and the Town, wherein 7-Eleven attempted to address each and every comment from the Traffic Division.  When pushed for an “up or down” vote on the Application, the Planning Board finally voted to deny it in August 2016, which both 7-Eleven and the property owner appealed.

The Court’s decision relied, in part, on 7-Eleven’s argument that this case presented similar issues to 7-Eleven’s Article 78 proceeding against the Village of Mineola for its denial of a special use permit.  The Town’s Planning Board in this case, and the Board of Trustees in the Mineola case, both denied the applications, in part, because of perceived traffic impacts resulting from tractor-trailer deliveries and perceived noise problems from overnight deliveries, even though 7-Eleven supported each of those applications with an affidavit representing that delivery times would be restricted, and that only box trucks would deliver to the stores.  Both this Court and the Appellate Division in the Mineola case rejected those bases of the boards’ denials of the applications.  As in the Mineola matter, this court concluded that it is arbitrary and capricious for a municipality to deny a 7-Eleven store application on the grounds of tractor-trailer delivery concerns or overnight delivery concerns where 7-Eleven had filed an affidavit stating that those two events will not occur.

In addition to the foregoing argument, the Court was, overall, persuaded that the Planning Board’s decision was irrational, arbitrary and capricious in light of the “empirical data” submitted during the Application process “evidencing that the proposed use would not carry deleterious impact or effects on the adjacent residential neighborhood as far as increased traffic or public safety.”   According to the Court, the Planning Board could not point to any contradictory “objective, factual or scientific support” to credit the concerns of the community opposition.  In sum, the Court held, “Even after giving respondents’ due deference in its expertise in local planning matters and site plan review, this Court finds that respondents did not attempt to counter petitioners’ scientific and factual evidence, but instead rather relied upon conclusory and speculative concerns to justify denial of petitioners’ application.”   Therefore, the decision reaffirms the principles that municipalities may not:  (i) base their decisions on the community’s political pressure or its unsubstantiated objections (e.g., crime, traffic); and (ii) ignore traffic and engineering studies, or an affidavit of the applicant, in favor of its own opinions.

As an initial matter, the Court also undertook a ripeness analysis, rejecting the Town’s claim that the applicant was required to proceed with variance approval from the zoning board, even though the planning board had issued a denial.  As the Court stated:  “Petitioners sought both site plan review and for a permit to commence demolition and new construction on their intended site.  Respondents granted neither application, with the practical import of each denial being that petitioners cannot move their project forward.  Thus, to conclude as respondents seek that petitioners have not yet been injured, or rather, that respondents’ determination is not yet in final form contorts logic.”

7-Eleven and Louhal Properties v. Town of Babylon, Index No.: 09290/2016 (Sup. Ct. Suffolk County, 7/7/2017).

In 2002, plaintiff Terry Andoscia was appointed to serve a two-year term as an assistant zoning inspector for the Town of North Smithfield. Plaintiff was subsequently appointed to two consecutive two-year terms by the town administrator, in 2004 and 2006. On December 16, 2008, he received a letter from the town clerk informing him of another appointment for a two-year term end on December 1, 2010. Less than two months later, the town advised plaintiff to not report to work, and it ceased paying him. The plaintiff’s employment was terminated for budgetary reasons and not for cause. Thereafter, plaintiff filed a complaint with the Superior Court, alleging breach of employment contract and a violation of his constitutional rights. In this case, the plaintiff appealed from a Superior Court judgment in favor of the town, by its finance director, Cheryl Ficarra, and the town administrator, Paulette Hamilton.

On appeal, plaintiff argued that the trial justice erred in holding that there was no contract between the parties. Specifically, he contended that the letter that the town clerk sent him conveyed a promise that his position as assistant zoning inspector was for a term of two years, expiring “on December 1, 2010. However, under the applicable town ordinance, a part-time zoning officer “serves at the pleasure of the town administrator”, and there was no evidence of a bargained-for exchange or that the plaintiff provided any consideration in exchange for a guaranteed two-year term of employment. Furthermore, there was no indication that the town bargained away its right to terminate the plaintiff at the pleasure of the town administrator. Accordingly, the court affirmed the judgment of the Superior Court in favor of the town.

Andoscia v Town of North Smithfield, 2017 WL 1946258 (RI 5/10/2017)

Plaintiffs – a State Senator, not-for-profit organizations, businesses, taxpayers, and users of Flushing Meadows Park -brought a CPLR article 78 proceeding and declaratory judgment action to enjoin the proposed development of parkland in Queens. The proposed development, “Willets West,” involved the construction of a shopping mall and movie theater on Citi Field’s parking lot, where Shea Stadium once stood. The Supreme Court denied the petition for declaratory and injunctive relief and dismissed the proceeding. The Appellate Division unanimously reversed and granted the petition “to the extent of declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine, and enjoining any further steps toward its construction.”

Here, there was no dispute that the Willets West development was proposed to be constructed entirely on city parkland. On appeal, defendants argued that the 1961 legislation concerning Shea Stadium, which the City constructed on parkland, constituted legislative authorization for the Willets West development. That legislation, codified in section 18–118 of the Administrative Code of the City of New York, was titled: “Renting of stadium in Flushing Meadow Park; exemption from down payment requirements.” In reviewing the plain language of that section, the court found that interpreting the phrase “improvement of trade or commerce” to grant authorization for the construction of anything that might improve trade or commerce, would lead to an absurd result. Instead, the court found that the 1961 legislation limited the City’s legislation to “appurtenant grounds, parking areas and other facilities,” and that no difference between “appurtenant” and “stadium related” in the context of these statutes existed. Furthermore, the legislative history demonstrated that the statute was intended to authorize the lease, rental or licensing of the stadium, not the construction of unrelated facilities. While the court acknowledged that the remediation of Willets Point was a laudable goal, it nevertheless held that the statutory language and legislative history demonstrated the legislation did not authorize further developments on the tract of parkland. As such, the order of the Appellate Division was affirmed.

Avella v. City of New York, 2017 WL 2427307 (6/6/2017)

Plaintiff Richard Specht challenged a land use variance and the vacation of a cul-de-sac in Big Water, which the Town’s Board of Adjustment and Town Council granted in favor of Specht’s neighbors, Paul Hyde and Debbie Hyde. The Hydes applied to the Board for a variance from the rear yard setback requirement to reduce the steepness of their driveway and thus provide them with reasonable access to their property. Specht appealed the district court’s order denying his motion for summary judgment and granting the Hydes’ cross-motion for summary judgment. On appeal, Specht argued the variance was arbitrary, capricious, and illegal because the Board did not make findings as to each of the required conditions of a variance and did not have substantial evidence to support its decision to grant it. Specht also argued the cul-de-sac vacation was arbitrary, capricious, and illegal because the Council did not have good cause to support it and did not provide proper notice of its hearings.

The record indicated that during the Board’s meeting, the Hydes presented evidence that after purchasing their lot, a neighbor raised the cul-de-sac by four feet, resulted in a very steep declining grade to their lot, which limited access to their property. Accordingly, the Board’s finding that enforcing the setback requirements would create an unreasonable hardship and that the hardship arose from circumstances peculiar to the property was supported by substantial evidence. Additionally, the court found that the Hydes’ property was unique and its conditions prevented them from enjoying reasonable access and installing a septic system, unlike the other lots in the zoning district. As such, without a variance, the Hydes would have been deprived of these privileges.

The Hydes also stated in their variance application that they had no rear neighbors who could be affected by the variance and that the lot cannot be seen from the main road because it sat below the cul-de-sac. Moreover, the Hydes provided the Board with a letter from the health department, which stated the variance would not be a problem. Furthermore, to the extent that the setback requirements had an aesthetic purpose, granting the variance would not frustrate that purpose because the Hydes’ lot could not be seen from the main road. The court found this evidence was sufficient to support the Board’s finding. Finally, the court found granting the variance would improve health and safety because it would allow the Hydes to install a septic system.

Next, the court determined that because Specht did not demonstrate that he suffered special injury different in kind from the public in general, and his access to the cul-de-sac was not substantially impaired, he lacked standing to challenge the validity of the vacation. Here, Specht did not complain that the vacation would directly harm him; he instead contended that some vehicles would have a “harder time” turning around. Additionally, Specht had not suffered any injury related to the Town’s alleged failure to provide proper notice, as he attended and participated in both the Planning and Zoning meeting and the Council’s hearing.


Specht v Big Water Town, 2017 WL 1788368 (5/4/2017)

Editor’s note: This posting originally appeared on the RLUIPA Defense blog and it reposted with permission.  See: https://www.rluipa-defense.com/2017/06/new-substantial-burden-framework-in-the-sixth-circuit-court-upholds-rluipa-verdict-in-favor-of-michigan-township/

The Sixth Circuit upheld a district court decision that found Genoa Charter Township (Township) did not violate federal law in denying a church’s application for a special use permit to operate a religious school. The take away from the case? Asking students to drive an extra 12 miles does not impose a substantial burden.
Livingston Christian Schools (LCS) sought to use property owned by another church, Brighton Church of the Nazarene (Nazarene property) to operate its pre-kindergarten through 12th grade Christian school. After identifying the Nazarene property, but apparently before speaking with any Township officials, LCS prepaid the Church $70,000 in rent and began advertising its new location to prospective students. LCS was later informed by the Township that it needed to amend Nazarene’s special use permit to allow school operations.
From 2006 to 2015, LCS had been operating in Pinckney, Michigan (Pinckney property). LCS found the Nazarene property more desirable than the Pinckney property because the former has better access to commuter roads and is located in a more populated area.  LCS applied for the necessary permit in March, 2015 and the Township held two public meetings, where several neighbors expressed concern with  the expansion and change in the use of the Nazarene property. Primary concerns were that  “(1) LCS’s operations would worsen already heavy traffic, and (2) Nazarene Church had a history of failing to comply with its previous special-use permits by using its property in ways that neighboring residents found disruptive.” Given these concerns, LCS’ application was denied.
On August 20, 2015, after the special permit denial, LCS leased the Pinckney property to the Light of the World Academy (LOTWA), a charter school, for a term of seven years.  The lease also post-dated LCS’ original complaint, filed on August 7, 2015. LCS then entered into a short-term lease to use a former public middle school building in Whitmore Lake School District for its operations.

The Sixth Circuit began its analysis by noting that the Supreme Court has yet to consider a RLUIPA substantial burden case in the land-use context. It then briefly reviewed the two Sixth Circuit decisions that have considered the issue: (1) DiLaura v. Township of Ann Arbor, 112 F. App’x 445 (6th Cir. 2004) (affirming the “district court’s conclusion that a substantial burden existed based on a zoning ordinance that required the plaintiffs, who wanted to establish an overnight religious retreat, to operate as a bed-and-breakfast establishment.”); and (2) Living Water Church of God v. Charter Township of Meridian, 258 F. App’x 729 (6th Cir. 2007) (restriction on buildings proposed by church to 25,000 square feet was not a substantial burden).

In this recent decision, the Court noted that Living Water did not set a “bright line test” of what constitutes a substantial burden, but the Court recognized that it provided a framework, which requires the Court to ask, “[D]oes the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?”
The Court noted that no other circuit has adopted the “effectively bar” language since Living Water was decided. Additionally, the Court characterized Living Water as an attempt to avoid setting precedent and to craft “a framework to apply to the facts before us.” Therefore, the Court declined to follow the Living Water framework and reexamined the meaning of “substantial burden.”

After surveying other circuit decisions and reexamining Living Water, the Court concluded that “a burden must have some degree of severity to be considered ‘substantial.’” Additionally, it identified several factors that other circuits have found helpful in the substantial burden analysis: (1) whether there are feasible alternative locations to conduct the institution’s religious exercise; (2) whether the religious institution will suffer “substantial ‘delay, uncertainty, and expense’ due to the imposition of the regulation”; and (3) whether any burden is self-imposed.

Also, the Court noted that several circuits consider “whether there is evidence that the municipality’s decision making process was arbitrary, capricious, or discriminatory.” LCS did not allege that the Township acted with discriminatory intent, so the factor was irrelevant to this case. The Court went further, however, and concluded that applying evidence of discrimination in the substantial burden context was inappropriate: “Evidence of improper decisionmaking is more appropriately considered when evaluating whether a governmental action was narrowly tailored to serve a compelling state interest—an inquiry that the court should undertake only after finding that a substantial burden exists.”

Applying the three factors noted above, the Court concluded that LCS was not substantially burdened.  First, LCS had failed to show that any of its core religious beliefs could not be carried out at the Pinckney property. Therefore, as a matter of law, the Court found that remaining at the Pinckney property would not have imposed a substantial burden. Additionally, the Pinckney property is only a 12.1-mile drive from the Nazarene property and 11.1 miles from the center of Livingston County. For these reasons, LCS’ claim that the Pinckney property was too remote to support a student population was not evidence of a substantial burden.  Second, any burden imposed based on the seven-year lease to LOTWA was self-imposed and therefore not relevant to the analysis.  Finally, the court rejected LCS’ argument that the Court should limit its review of alternative properties to those within the Township’s boundaries.

Livingston Christian Sch. v. Genoa Charter Twp, 2017 WL 2381336 (6th Cir. CA 6/2/2017)

Editor’s note: This summary originally appeared in Bond Case Briefs and is reprinted with permission. See, http://bondcasebriefs.com/2017/07/04/cases/key-v-brown-university

Property owners brought action against private university and city, seeking declaratory judgment that university’s construction of an artificial-turf field hockey field with attendant bleachers, press box, electronic scoreboard, and public-address system was an unlawful use under city zoning ordinances.

The Superior Court granted defendants’ cross-motions for summary judgment and denied property owners’ cross-motion for summary judgment. Property owners appealed.

The Supreme Court of Rhode Island held that property owners suffered an articulable, particularized injury in fact due to university’s construction and use of fields, and thus had standing to bring suit.

Property owners, who brought action against private university and city seeking a declaratory judgment under the Uniform Declaratory Judgments Act (UDJA) that university’s construction and subsequent use of new athletic fields and other amenities was unlawful under city zoning ordinances, suffered an articulable, particularized injury in fact due to university’s construction and use of fields, and thus had standing to bring suit. Owners’ allegations regarding their home provided measurable economic injuries that they suffered as a result of university’s project, owners were the proper parties to request an adjudication of the particular issue, and owners’ failure to pursue administrative remedies that may have been available to them did not preclude them from seeking declaratory relief.

Key v. Brown University, 2017 WL 2784864 (RI 6/27/2017)

Posted by: Patricia Salkin | June 26, 2017

New Blog Series on Teaching Land Use Law

The Land Use Law Professor Blog is featuring a weekly conversation on teaching land use law based on the new edition of Land Use and Sustainable Development Law, 9th ed by Nolon, Salkin, Miller and Rosenbloom.

The first three posts address the law of nuisance as a foundation and segue to zoning:





Editor’s Note: Special thanks to attorney Edward J. Sullivan for contributing this case summary.

Murr v. Wisconsin, U.S. Supreme Court No. 15-214 (June 23, 2017) was the review of a trial court grant of summary judgment to Defendant in a “regulatory takings” case. Plaintiffs had separately acquired two adjacent parcels from family members or entities connected with those members, neither of which could be developed for residential use separately under the local zoning regulations, and built a cabin on one of them. The zoning regulations did allow for residential development of undersized lots in certain circumstances, but had also required (before Plaintiffs acquired the lots), that adjacent parcels under the same ownership were considered “merged” so that only one house could be placed on them. Plaintiffs claimed a regulatory taking under the merger requirement.

The federal Wild and Scenic Rivers Act designated the St. Croix River for federal protection and Wisconsin developed a program to protect the area that included Plaintiffs’ property. Plaintiffs’ application for a hardship variance for an additional dwelling was denied and that denial was affirmed on appeal. The trial court granted Defendant’s summary judgment motion on the taking claim, finding Plaintiffs had other options for the use of the vacant lot in conjunction with the existing cabin, which could be moved or replaced and that they had not been deprived of all economic value of their property. The state court of appeals affirmed, using a “parcel as a whole rule” that analyzed the taking claim with reference to both parcels under common ownership. That court noted the merger provision existed before Plaintiffs acquired either property, so that they were on notice of that limitation so that it was unreasonable to expect otherwise and observing the difference in value of the merged parcel and the two parcels separately was less than 10%. The state Supreme Court denied discretionary review and the U. S. Supreme granted certiorari

Justice Kennedy’s majority opinion noted that regulatory takings may occur when all economic value is deprived or under the three-factor test of Penn Central Transp. Co.. v. New York City, 438 U.S. 104, 124 (1978), i.e. economic impact of the regulation, interference with distinct investment backed expectations and the character of the regulation. Terming the use of the Penn Central analysis as involving a “complex series of factors” and noting that even deprivation of all viable economic use was not always dispositive in a taking claim, Justice Kennedy concluded that the “central dynamic” of the court’s regulatory takings jurisprudence was the “flexibility” to reconcile property rights with a public agency’s power to adjust rights for the public good.

The majority noted previous cases used a “parcel as a whole” rule to evaluate certain takings claims involving multiple property interests, such as in Penn Central, where Plaintiff attempted to segregate “air rights” to build to a greater height within the zoning envelope.  The Court did not consider this potential interest separately but looked to the effect of the regulation on the entire property, where the “denominator” of full value would often reduce its impact, and thus its constitutional significance.  The majority also stated that it was the purpose of the Takings Clause that was important, I.e., preventing the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

The analysis begins with the nature of the property under consideration. The majority refused to define property for constitutional purposes as always coextensive with state law, which could allow that interest to be altered to defeat an otherwise legitimate Takings claim, choosing three new “factors” to determine the denominator, the parcel as a whole, viz. the treatment of the land under state law (a landowner must recognize reasonable expectations that legitimate restrictions may be imposed), the physical characteristics of the land (I.e., human, topographic and environmental limits on its use), and the effect of regulations on other lands held by the same owner.

In doing so, the majority rejected the formalist responses of both parties. The state would have found its regulations dispositive, while Plaintiffs sought to make Lot lines (which themselves may be changed under state law) as dispositive. The majority focused instead on the reasonableness of the land use regulations and determined that merger provisions were of long standing and legitimate land use tools that may used, in conjunction with other similar land use tools, to reduce substandard lots in separate ownerships over time. Reliance on lot lines, which may take different forms and significance across the country, was thus not useful. Applying the new factors, the majority accepted the merger provisions as a reasonable exercise of state policy under the first factor.  The shape of the parcels, their rough terrain and significantly undevelopable portions added to the rationality of the merger provisions under the second factor. Finally under the third factor, the lack of separate residential use on one of the two parcels is offset by the use of the property as an integrated whole, with additional open space and privacy and additional flexibility locating improvements. The market value differential in the value of the parcels separately and as merged also contributed to the rationality of the regulations.

To conclude, the majority found no denial of all viable economic use, as the parcel as a whole may be still used for residential purposes. Nor do the merger requirements fail the Penn Central factors, as the loss in value is less than 10%, Plaintiffs could have expected these rules under the circumstances, and the regulation was part of an intergovernmental effort to preserve the river and surrounding land.  The majority concluded:

Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. * * * Courts must instead define the parcel in a manner that reflects reasonable expectations about the property. * * * Treating the lot in question as a single parcel is legitimate for purposes of this taking inquiry, and this supports the conclusion that no regulatory taking occurred here .

Recently appointed Justice Gorsuch did not participate in the decision. The Chief Justice, joined by Justices Thomas and Alito filed the principal dissent, but he added that the outcome in the case did not trouble him; however the majority’s analysis (devised for the purposes of this case) was troubling. The dissent suggested the majority’s tests for defining property move away from the somewhat familiar association with state law creations and definitions to the new factors found and threatens to conflate that definition with the standards used to evaluate a regulatory taking.

The dissent found three questions presented by the Takings Clause: the nature of the affected private property, whether that property had been taken for public use and whether just compensation were due. That Clause does not define the term “property,” and the Court has long looked to state law in determining whether an interest were property. Similarly, the Court has had trouble in determining when a regulation goes “too far.” Discussions in regulatory takings cases are rarely about property and in the absence of a total deprivation are more likely to focus in the broadly-dawn Penn Central factors for takings, occurring at the second stage of analysis as to whether a taking has occurred, rather than over the nature of property.

In evaluating the parcel as a whole in this case, the majority uses a multi-factor approach, whereas the dissent would use property boundaries under state law as the traditional point of departure.  Impacts of the adjacent parcel may be considered, but not at the first stage in defining the property under consideration. The factors used by the majority to define property were rather meant to be used as the ad hoc, factual inquiries the court has previously associated with the takings analysis in the second step, rather than the determination of property or the parcel as a whole.. By presenting the same analysis twice, with the  use of factors related to public goods promoted by the regulation (which is also a factor in the second step determination of whether a Taking has occurred) the outcome is doubly weighed in favor of upholding the regulation even before the “too far” analysis begins. The dissent would remand the case to the trial court to determine whether each Lot were independent property interests and, if so, to proceed with the traditional Penn Central takings analysis.

The Chief Justice concluded:

Instead, the majority’s approach will lead to the definitions of the “parcel” that have far more to do with the reasonableness of applying the challenged regulation to a particular landowner.  The result is clear double counting to tip the scales in favor of the government.

The dissent would remand the matter to the trial court to determine whether each Lot constituted “property” and, if so, to conduct a Penn Central analysis.  Thus, the dissent would limit the definition of property to the first stage and have the discretionary review at the second stage of takings analysis, where reasonableness and other factors may be considered, a result it suggested would lead to more effective judicial review.

Justice Thomas called for a review of regulatory takings from the standpoint of originalism.

It may be, as the principal dissent suggests, that this case would have the same result under either approach, but it does appear to be important to define the property at the commencement of the analysis by using state law definitions and understandings, then to undertake the taking analysis, most likely under Penn Central, along with parcel as a whole considerations, and then move to any issue of just compensation. But perhaps that’s too simple.  The introduction of new “factors” at the initial stage, factors without precedent in case law, complicates the analysis and does appear to give the public agency the advantage. The outcome may be correct – Plaintiffs may well not have suffered a constitutionally significant impact in their property value; they may well have no significant investment-backed expectations impaired; and they may have to bow to the public good in limiting development on their property. But all of that might be achieved under a Penn Central analysis without the need for another contrived set of factors.

Murr v. Wisconsin, United States Supreme Court No. 15-214 ( June 23, 2017).


Editor’s note: This summary originally appears in Bond Case Briefs and is reposted with permission. See, http://bondcasebriefs.com/2017/06/13/cases/mayer-v-historic-district-commission-of-town-of-groton

Property owners appealed from two decisions of town’s historic district commission that granted adjacent property owners’ application for certificate of appropriateness allowing them to remove portion of historic barn and determined that commission lacked jurisdiction over adjacent owners’ second application for certificate of appropriateness that would have allowed them to alter the barn to create new facade.

The Superior Court dismissed the appeals. Following Appellate Court’s grant of certification to appeal, property owners appealed to Appellate Court, and Supreme Court transferred the appeals.

The Supreme Court of Connecticut held that:

  • Property owners were not statutorily aggrieved under historic district appeals statute and zoning board appeals statute, and thus lacked standing to appeal from decisions of town’s historic district commission, abrogating Peeling v. Historic District Commission of the Town of New Canaan, 2006 WL 3359619;
  • Property owners were not classically aggrieved by decision of town’s historic district commission that allowed adjacent owners to remove portion of historic barn, and thus, owners lacked standing to appeal from the decision; and
  • Property owners failed to plead facts sufficient to demonstrate that they were classically aggrieved by decision of town’s historic district commission that it lacked jurisdiction over adjacent owners’ second application for appropriateness, and thus, owners lacked standing to appeal from the decision.

Mayer v. Historic District Commission of Town of Groton, 7652017 WL 2263050 (CT 5/30/2017)

Posted by: Patricia Salkin | June 23, 2017

ME Supreme Court Upholds Enlargement of Nonconforming Structures

Editor’s Note: This summary originally appeared in Bond Case Briefs and is reposted with permission.  See, http://bondcasebriefs.com/2017/06/20/cases/wolfram-v-town-of-north-haven

Objector appealed from Board of Appeals decision to uphold a conditional use permit issued by planning board to property owner.

The Superior Court affirmed the Board of Appeals decision, and objector appealed.

The Supreme Judicial Court of Maine held that:

  • Because property owner had two non-conforming structures on one lot, each could be enlarged by up to 33% of the ground area of the structure that it replaced and still remain in compliance with municipal ordinance;
  • Ordinance provision that concerned the repair or replacement of a nonconforming structure damaged or destroyed by fire or cause other than the owner’s willful act did not operate to prohibit the enlargement of an existing non-conforming structure;
  • A 20% lot coverage restriction in municipal ordinance applicable to guest houses did not apply to a proposal to tear down a bungalow and rebuild it as an annex;
  • Evidence was sufficient to support Board of Appeals finding that use of proposed annex to lodge would not have an adverse impact on the quiet possession of surrounding properties, as required for the issuance of a conditional use permit; and
  • Evidence was insufficient to support objector’s claim that a decision affirming the grant of a conditional use permit to applicant was the product of bias or procedural unfairness

Wolfram v. Town of North Haven, 2017 WL 2438530 (ME 6/6/2017)

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