Kathryn Mills and her husband, Luke Dellmyer, sought to operate a horse farm and riding business on the subject property, which was a permitted use in an RA zoning district. The subject property is bordered entirely by a 40–foot tree line, another tree line essentially bisects the subject property, and is encumbered by an extensive utility easement. In this zoning appeal, David Tidd (Objector) challenged whether the Lower Saucon Township Zoning Hearing Board erred in granting Green Gables Investment Partners, LP’s (Applicant) request for a dimensional variance from the Lower Saucon Township Zoning Ordinance’s requirement that all areas used to corral or pasture horses be at least 100 feet from all lot lines.

Objector first argued that, although Applicant asserted the trees on the subject property constitute a unique physical characteristic causing hardship, Applicant did not show, how the trees were in any way unique to the subject property. The court noted that in establishing hardship, an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose. Here, there was an approximately forty-foot tree line around the entire border of the subject property and another tree line that passed through the middle of it. Dellmyer indicated that the tree line acted as a physical hardship to the subject property because it significantly limited the usable area barring the financial and environmental detriment of significant tree removal. Thus, placing the combined pasture and perimeter fence at the 100–foot setback would create approximately 6.5 acres of unusable land. Dellmyer’s testimony was not challenged or contested before the ZHB, and as a result the court found that the determination that Applicant had demonstrated an unnecessary hardship to warrant granting the variance request from the 100–foot setback was supported by substantial evidence in the record.

Tidd v Lower Saucon Township Zoning Hearing Board, 118 A. 3d 1 (PA Cmwlth 5/29/2015)

Premier Tierra Holdings, Inc., owned a tract of property in the Village of Tiki Island, located in Galveston County. Premier desired to develop or sell the property for a mixed-use marina development, so it filed a declaratory judgment action against the City seeking a determination of its vested rights under chapter 245 of the Texas Local Government Code. Premier asserted that chapter 245 required the City to consider the approval of an application for a permit solely on the basis of the regulatory scheme existing at the time the first plat application for a project is filed, and therefore certain provisions of the City’s zoning ordinance could not be applied to its project because Premier filed its plat application before the City approved the ordinance. Premier sought a declaratory judgment action against the City, and the 212th District Court, Galveston County, denied city’s plea to the jurisdiction.

The court noted at the outset that chapter 245 contains a number of exemptions from its operation, including certain municipal zoning regulations and other specified land use regulations. Under it, a city also may require compliance with technical requirements relating to the form and content of a permit application in effect at the time the application was filed, even though the application is filed after the date an applicant’s rights accrue. The City argued that Premier never appealed the denial of its plat application, and did not challenge the City’s denial in this lawsuit. Because the project could not go forward, the City argued any request for declaratory relief would be moot. Although the court agreed with the City that Premier failed to present a justiciable controversy, it disagreed that Premier’s claims failed on two separate and distinct grounds of mootness. Alternatively, the court concluded that Premier’s request for declaratory relief failed to present a justiciable controversy because the record did not disclose the reasons why the City denied the 2010 plat application; Premier had never requested that the City certify the reasons for the denial; no plat or permit applications had since been denied for any specified reasons; and Premier had not challenged the City’s denial of its plat application in this or any other proceeding.
Here, the court found Premier’s failure to request the City to certify the reasons for its denial of the 2010 plat application, its failure to seek any further plat or permit applications that could have been challenged if denied, and its calculated refusal to challenge the denial of the 2010 plat application as “irrelevant” effectively precluded the trial court from considering and determining the basis for the City’s disapproval of Premier’s plat application. The court therefore sustained the City’s plea to the jurisdiction, and rendered judgment dismissing Premier’s case without prejudice.

Village of Tiki Island v Premier Tierra Holdings, Inc., 464 S.W. 3d 435 (TX App. 5/5/2015)

Kay Loring owned a small parcel of land located in a residential area of the City of South Portland. Because of its size, the lot was nonconforming until 1973, when the City issued a variance that brought it into dimensional conformity. Based on the 1973 variance, in 2013 the City’s Building Inspector issued a building permit to Loring, authorizing her to construct a single-family house on her lot. Mary E. Campbell and Maureen and Edward Conroy (collectively, Campbell), who own nearby lots, appealed the issuance of the permit to the South Portland Board of Appeals, which affirmed the Building Inspector’s action. The Superior Court affirmed the Board’s decision. On appeal, Campbell argued that the evidence presented to the Board did not support its findings about the size of the lot and the existence of a variance; that the 1973 variance is no longer effective; and that the building permit is not lawful because the proposed development would exceed the density restrictions for that zoning district.

Because neither Loring nor her predecessors in title actually built on the lot within two years of the issuance of the variance in 1973, Campbell argued that the variance expired and was no longer in effect, Loring’s lot reverted to one that is treated as having an area of 4,703 square feet, and the Building Inspector therefore was without authority to issue the permit. However, the variance was only as to the size of the lot. Since section 27–302 did not apply to a dimensional variance, the two-year expiration period created in that provision was inapplicable. Campbell next argued that the building permit was improperly issued because the proposed permitted development on Loring’s lot will violate the density limitations prescribed in section 27–534 of the City’s ordinance. However, because Campbell did not properly present this challenge to the Board, it was not preserved for judicial review. Accordingly, the judgement of the Superior Court was affirmed.

Campbell v City of South Portland, 2015 WL 5255482 (ME 9/10/2015)

Rancho de Calistoga (“the Park”) is a mobile home park located in Calistoga, California, which encompasses 26.5 acres, was originally developed by Hal C. Aguirre and R.C. Roberts. When the Roberts and Aguirre partnership dissolved in the mid–1970’s, one of the parcels was transferred to Aguirre, who formed Rancho de Calistoga (“Rancho”). The City of Calistoga had no form of mobile home rent control until 1984, when the City adopted an ordinance that enabled mobile home park tenants to challenge rent increases. The ordinance authorized a yearly rent increase equal to the lesser of 100% of the percent change in the Consumer Price Index or 6% of the base rent. In 2010, Rancho decided to notice a rent increase from $471.39 to $625 per month, but an administrative hearing officer, W. Scott Snowden, issued a decision in which he rejected Rancho’s request and instead allowed a rent increase to a total of $537.59 per space per month. Rancho filed a Petition for Writ of Administrative Mandamus in the Napa County Superior Court against the city and administrative hearing officer, asserting regulatory takings and separate “as-applied private takings” challenges to city’s mobile home rent control ordinance, as well as due process and equal protection claims against officer. The United States District Court for the Northern District of California, granted city’s motion to dismiss.

As to the as-applied regulatory takings claim, Rancho argued that even if the taking was for a public purpose, the rent subsidy should be paid by the government if the rent is neither excessive nor the result of monopoly power. The court found, however, that the argument was in fact just another formulation of a facial attack on the ordinance. Even if the claim were cognizable through an as-applied attack, the court found it would fail because it was not a regulatory actions that was functionally equivalent to a classic taking in which government directly appropriates private property or ousts the owner. Even though Rancho claimed the diminution in market value from $16,580,000 to $11,850,000 under rent control, or 28.53%, as well as lost income, the court found this economic impact was an inevitable consequence of the rent-control scheme but not an unconstitutional one. Rancho also filed a separate “private takings claim,” arguing that the application of Ordinance 644 to rent increases constituted an unconstitutional private taking because any purported “public use” is pretextual. However, this argument failed because it was simply a reframing of a facial challenge to the ordinance through an attack on the stated purposes of the rent-control scheme.

Rancho’s equal protection claim was analyzed under the rational basis review because mobile home park owners are not a suspect class. Here, the ordinance articulated just distinguishing characteristics, including the potential hardship posed by rent increases and the fact that mobile home park residents “are in a unique position in that they have made a substantial investment in a residence for which space is rented or leased” and the associated relocation costs. Furthermore, there was no evidence that Snowden’s decision was politically motivated or otherwise arbitrary. Accordingly, the court affirmed the district court’s dismissal of Rancho’s due process and equal protection claims.

Rancho De Calistoga v City of Calistoga, 2015 WL 5158703 (9th Cir. CA (CA) 9/3/2015)

Posted by: Patricia Salkin | September 30, 2015

NY Appellate Court Upholds Granting of Area Variances

The court upheld the granting of area variances by the Town zoning board appeals finding that the board properly weighed the statutory factors in Town Law sec, 267-b and that the board’s decision was rational and supported by substantial evidence in the record, and that it was therefore neither illegal, arbitrary, nor an abuse of discretion.

Tower v Weiss, 131 A.D. 3d 621 (NYAD 2 Dept. 8/19/2015).

Drew Barnabei and Nicole Barnabei (“Appellants”) purchased the Stonebridge Mansion and moved into Stonebridge with their two children and began to use it as their primary residence. Appellants later decided to rent out the first and second floors of Stonebridge as a catered events venue. On June 5, 2013, Hugh Donaghue, the Chadds Ford Township Solicitor, also informed Appellants that Appellants’ proposed use of Stonebridge was not a permitted use in an R–1 district. The township subsequently obtained an injunction to prevent Appellants from holding a proposed music and food festival, and a township Zoning Officer issued Appellants six non-traffic citations for holding events on April 20, 2013; April 26, 2013; and May 23, 2013. The ZHB denied Appellants’ application to use their property as a catered events venue, and the Court of Common Pleas of Delaware County affirmed the decision.

Here, because a lessee’s principal use of Stonebridge must be residential in nature, the court agreed with the ZHB that Appellants’ proposed use of Stonebridge is not a permitted use under the Ordinance. Appellants next contended that because 901 Poplar (former owners) held similar events at Stonebridge during the course of its ownership, Appellants have established a nonconforming use. However, Appellants presented no evidence that Stonebridge was used as a catered events venue prior to the enactment of the Ordinance. Thus, the Appellants failed to establish a nonconforming use.

Appellants next brought a claim for variance by estoppel. The court held, however, that the Appellants had waived their argument concerning a variance by estoppel by not raising it before the ZHB. As to the application for a variance, the Ordinance provided that in the event that the Ordinance imposes an unnecessary hardship upon a landowner. This Court held that in order to establish an unnecessary hardship, “an applicant must prove that either: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance.” The fact that the use of Stonebridge as a residence was less financially rewarding than using it as a catered events venue did not justify a variance. Accordingly, the court rejected the Appellants’ argument that they were entitled to a variance. The trial court’s order was therefore affirmed the denial of the application.

Barnabei v Chadds Ford Township Zoning Hearing Board, 2015 WL 3609316 (PA Commwlth 6/10/2015)

Oneida Seven Generations Corporation submitted an application to the Plan Commission requesting a conditional use permit allowing it to place a renewable energy facility in Green Bay. The application was supported by a 149–page report on the facility. The Plan Commission considered the project at an open meeting on February 21, 2011. The CEO of Oneida Seven, Kevin Cornelius, its engineer, and its project manager presented PowerPoint slides accompanied by an audio recording to the Commission which explained how the pyrolysis process works. Although the City initially voted to grant the permit, it subsequently voted to rescind the conditional use permit on the basis that it was obtained through misrepresentation. The court of appeals determined that the City’s decision that the permit was obtained through misrepresentation was not supported by substantial evidence and reversed.

The motion to rescind the conditional use permit was explicitly based on the reasons provided by Alderman Sladek: 1) Cornelius made untruthful statements to city governmental bodies in response to questions related to the public safety and health aspects of the project and the project’s impact on the city’s environment; 2) those statements were clear and left no impression of doubt or uncertainty; 3) Cornelius knew his statements were false; and 4) the subject matter of the questions was of high importance. the intentional misrepresentations to which Alderman Sladek was referring were Cornelius’s statements at the February 21, 2011 Plan Commission meeting “to questions or concerns related to the public safety and health aspects of the project and the project’s impact on the city’s environment” and, more specifically, Cornelius’s responses to commissioners “when they asked about emission, and chemicals, and hazardous materials at this project.” Here, there was no indication in the record that the statements Cornelius actually made (that the scrubbers remove the harmful toxins from the syngas and that the dioxins and mercury would not be in the ash, which could be reused for beneficial purposes) were false.

Next, the City alleged that the statement by CEO that there would be no smokestacks was an intentional misrepresentation. However, there was no indication that Cornelius’s use of the term smokestack during his public presentation to the Plan Commission was a reference to the technical term “stack” as defined by the DNR; on the contrary, it appeared that Cornelius’s statement was reiterating the statement made in the recorded presentation, which used the term smokestacks as a reference to the stacks present at the coal powered power plants. Those stacks are several hundred feet high and twenty to thirty feet wide, whereas the “stacks” at the proposed facility are exhaust pipes that would only be approximately 26 inches wide and 35 feet tall, rising only 3 feet above the roofline of the facility. The court determined that if the City had not wanted such vents, it could have added that as one of the conditions to the conditional use permit. Accordingly, the court concluded that the City’s decision to rescind the conditional use permit was not based on substantial evidence, and therefore affirmed the holding of the court of appeals.

Oneida Seven Generations Corporation v City of Green Bay, 2015 WL 3458190 (WI 5/29/2015)

The opinion can be accessed at: http://wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=142646

Sullivan Farms II, Inc.; the Bloomingburg Jewish Education Center; Learning Tree Properties, LLC; Malka Rosenbaum; Sheindel Stein; Winterton Properties, LLC; and Commercial Corner, LLC (collectively the “Plaintiffs”) alleged that defendants are working together to prevent Hasidic Jews from moving into the vicinity of Bloomingburg, New York, a small village in Sullivan County with a population of about 400. Specifically, they alleged that defendants’ acts of resistance have violated their rights under the First Amendment, the Equal Protection Clause, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Fair Housing Act (“FHA”), and New York state law. The First Amended Complaint alleges that defendants are (a) obstructing the completion of a housing development project known as Chestnut Ridge, which they believe is being marketed to Hasidic home buyers, (b) impeding the opening of the Bloomingburg Jewish Education Center, a private Hasidic religious school that plans to open on Bloomingburg’s Main Street, (c) preventing a property in Bloomingburg from being converted to a mikvah, a bath used by Hasidic Jews for ritual immersion and purification, and (d) engaging in a program of harassment and discriminatory building code enforcement aimed at Jewish residents or prospective residents of Bloomingburg. The defendants (Village of Bloomingburg, and entities and individuals associated with the Town of Mamakating) moved to dismiss.

As to the Plaintiffs’ claims with regard to the religious school, the court found that they must be dismissed on both mootness and ripeness grounds, since the site plan for the school was approved in March 2015. Next, the court examined Plaintiffs’ constitutional claims pursuant to § 1983 and § 1985 based on the Village’s allegedly discriminatory application and enforcement of the New York State Building Code. The court found that the plaintiffs’ vague allegations that the Village has discriminated against “plaintiffs’ properties”, “Jewish-owned properties,” and “ ‘Jewish building in the Village” were insufficient to support Article III standing because they were unconnected to any concrete, particularized alleged injury. Accordingly, all of plaintiffs’ claims against the Village that were predicated on the allegedly discriminatory enforcement of the New York State Building Code are dismissed in their entirety due to lack of standing. As a final threshold issue, the court dismissed Plaintiffs’ New York state law claims under §§ 3, 6, and 11 of the New York Constitution as well as their request for an injunction on state law grounds against the Moratorium as redundant, because these claims would all be addressed under the federal due process claims.

In the First Amendment claim, Plaintiffs alleged that Town Supervisor Herrmann’s and the Town’s actions with regard to the mikvah stem from improper, discriminatory motives on Herrmann’s part, as shown by his role in founding the allegedly anti-Hasidic RCC, his campaign slogan “stop 400 from turning into 4000,” appointing opponents of the Hasidic community to town boards, and alleging public comments regarding his desire to keep Jews from moving into the Town. Plaintiffs further alleged that the Town ZBA, whose chair was appointed by Herrmann, overturned the Town Planning Board’s approval of the site plan for the property without providing a reasoned basis for its conclusion or explaining why a mikvah is not a neighborhood place of worship. Therefore, the court found that plaintiffs Winterton Properties and Rosenbaum had stated valid free exercise and freedom of association claims against the Town, the Town ZBA, and Herrmann. Likewise, under the equal protection clause, the court found plaintiffs provided detailed and legally sufficient allegations that lead to the reasonable inference that in taking these actions, the Village, the Village Board of Trustees, Gerardi, Johnson, and Roemer were motivated by discriminatory animus and intentionally acted to discriminate against Hasidic Jews. At this stage of the litigation, the court also held that under the due process clause and FHA, Sullivan Farms had adequately alleged that it suffered has been deprived of a property interest via the diminution in the value of its investment in Chestnut Ridge that has been caused by the financial injury due to the delays in closing sales on the completed townhomes.

Bloomingburg Jewish Education Center v Village of Bloomingburg, 2015 WL 3604300 (SDNY 6/9/2015)

The opinion and order can be accessed at: http://www.newyorklawjournal.com/id=1202729033706/Bloomingburg-Jewish-Education-Center-et-al-Plaintiffs-v-Village-of-Bloomingburg-New-York-et-al-Defendants-14cv7250-KBF

Plaintiffs Colleen and John Austin commenced this action for declaratory and injunctive relief against defendant Town of Farmington alleging discrimination in granting a variance which permits the installation of an above-ground pool with protective fencing on the basis of their son’s disability which they claim contains the onerous requirement that the pool along with the protective fence are required to be removed upon the sale of their home or when their disabled son is no longer in residence. They claimed this requirement of removal violated the reasonable modifications requirement to be made under these circumstances as provided by the Federal Fair Housing Act (“FHA”), Title VIII of the Civil Rights Act of 1968.

To succeed in showing a violation of § 3604, the plaintiffs needed to establish disparate treatment, that their son’s disability was, in some part, the basis for defendant’s action in requiring them to restore the property, or that defendant’s action produced a differential impact or effect on disabled individuals. Here, Plaintiffs failed to support, beyond their conclusory assertions, that requiring them to bear the cost of the removal of the fence and pool was based on their son’s disability when the initial grant of a variance to build the pool along with a fence was granted knowing that plaintiffs’ son was disabled. Because the complaint alleges neither an intent to discriminate, nor facts sufficient to constitute disparate-impact discrimination under the FHA, the court granted the defendant’s motion to dismiss the claim.

Austin v Town of Farmington, 2015 WL 3604671 (WDNY 6/8/2015)

The decision can be accessed at: http://www.newyorklawjournal.com/id=1202729028264

Appellees, Sunset Properties, L.L.C., and Meadowview Village, Inc., each owned property in the village of Lodi on which they operate licensed manufactured-home parks. These mobile home park owners brought action against village, seeking declaratory and injunctive relief and damages, challenging constitutionality of ordinance governing discontinuance or abandonment of a nonconforming use of property. The Court of Common Pleas entered summary judgment in favor of village, and the owners appealed. The Court of Appeals then reversed and remanded and the Village appealed.

The provision in question, Lodi Zoning Code 1280.05(a), states that when a nonconforming use has been discontinued for six months, that discontinuance is conclusive evidence of the intention to legally abandon the nonconforming use. When a tenant left one of appellees’ mobile-home-park lots and the lot was vacant for longer than six months, Lodi would refuse to reconnect water and electrical service when a new tenant wanted to rent the lot. Lodi asserted that its goals for the ordinance are unquestionably permissible and that the ordinance is unquestionably rationally related to these goals; however, the plain language of the last sentence of the ordinance imputed a tenant’s abandonment of a lot within a mobile-home park on the park’s owner and deprives the owner of the park of the right to continue the use of its entire property in a manner that was lawful prior to the establishment of the zoning ordinance. Finally, the court found that the unconstitutional final sentence in Lodi Zoning Code 1280.05(a) could be severed from the rest of the ordinance because the remaining portion of the ordinance could stand by itself without inserting any words and its intended effect is not altered. The judgement was therefore affirmed.

State ex. rel. Sunset Properties, LLC v Village of Lodi, 30 NE 3d 934 (OH 3/10/2015)

The opinion can be accessed at: https://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2015/2015-Ohio-790.pdf

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