Petitioner owns property that contains eight buildings with one- and two-bedroom apartments leased to college students.  Petitioner sought to create additional housing on this property and applied first for 5 area variances, later withdrew 2 but continued with the 3 to increase the number of dwelling units based on the lot size, decrease the minimum living area per unit and decrease the required number of parking spaces.  The ZBA denied the variance requests and the Supreme Court upheld the decision.  The petitioner appealed.

The appellate court upheld the decision finding that the ZBA’s decision was supported by the record and had a rational basis, and that the Board properly applied the balancing test, and noted that when rendering its decision, the ZBA was “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational” (Matter of Merlotto v. Town of Patterson Zoning Bd. of Appeals, 43 A.D.3d 926, 929, 841 N.Y.S.2d 650 [2007]; see Matter of Cohen v. Town of Ramapo Bldg., Planning & Zoning Dept., 150 A.D.3d 993, 994, 54 N.Y.S.3d 650 [2017] ).  The Court noted that there were “large differences between a project as permitted under the zoning regulations and the relief requested by petitioner,” including that the minimum lot size would permit 154 units on the property, whereas petitioner sought permission for a total of 409 apartments. Also, the petitioner wanted to reduce the minimum living space per unit from 750 square feet to 474 square feet, and to reduce the number of required parking spaces from 818 to 309. Further the petitioner intended to lease to 562 residents, whereas in the apartments currently on the property petitioner leases to 222 residents. The court noted that “the record also contains information addressing the potential negative changes to the character of the neighborhood or detriment to nearby properties.” Although the property is located in a mixxed-use zone, most of the immediately-adjacent streets contain predominantly one-family residences.

The court also noted that, “rather than setting a minimum living area per person or bedroom, the Vestal Town Code sets forth a minimum living area per “family,” which is defined as, among other things, any number of related persons occupying a single dwelling unit, or up to five unrelated persons occupying a single dwelling unit (see Town of Vestal Code §§ 24–1, 24–182[c][2] ). If an area variance were granted reducing the minimum living area to 474 feet, it would be permissible – notwithstanding petitioner’s stated intention to allow only one student to rent each of its one-bedroom apartments – for an entire family…”   the petitioner also acknowledged that the difficulty is self-created.  It was possible for the petitioner to realize the benefit of increased rental units another way, despite the fact that the petitioner felt those changes would not be consistent with its marketing plan.

While there was community opposition to the requested variances, the Court found sufficient evidence in the record to conclude that the decision was not based entirely on community opposition.

Feinberg- Smith Associates, Inc. v. Town of Vestal Zoning Board of Appeals, 2018 WL 6797603 (NYAD 3 Dept 12/27/2018).

The Town of Hamburg granted an application to rezone Wetzel’s parcel of land to allow the construction of a clustered patio-home project (project).  Neighbors appealed and the Supreme Court annulled decision. The appellate court found that the court below erred in annulling the rezoning determination based on the purported failure of the Town Board to comply with Town Law § 264.  Specifically, this Section of law requires a public hearing and an opportunity to be heard with at least 10 days notice.   Here, the notice indicated it was for 29.29 acres of vacant land rather than the 24.24 acres actually under consideration The Court noted, that “The sufficiency of the notice is tested by whether it fairly apprises the public of the fundamental character of the proposed zoning change. It should not mislead interested parties into foregoing attendance at the public hearing” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 N.Y.2d 668, 678 [1996] ).  The court said that, “Here, the notice relating to the rezoning application announced a public hearing on the adoption of an amendment to the Town’s Zoning Code with respect to a specified. We conclude, however, that the notice was sufficient and that the court therefore erred in failing to dismiss the fourth cause of action.”

Further, the Court found nothing in the record supporting the court’s conclusion that a member of the public could reasonably have been misled by the erroneous description of the acreage and thereby caused to fording the public hearing. The court also found that the record did establish that, before taking final action on the proposed rezoning, the Town Board did refer the matter to the Erie County Department of Environment and Planning (ECDEP) for review in compliance with General Municipal Law § 239–m, and the ECDEP’s failure to issue a recommendation within 30 days of “receipt of a full statement of such proposed action” permitted the Town Board to make a final determination on the rezoning application (General Municipal Law § 239–m [4][b]).

Lastly, the court agreed that petitioners failed to demonstrate that a “clear conflict” exists between the Town’s comprehensive plan and the rezoning determination.

Johnson v Town of Hamburg, 2018 WL 6714375 (NYAD 4 Dept. 12/21/2018)

Posted by: Patricia Salkin | December 4, 2018

MD Appeals Court Finds Implied Preemption Over Siting of Solar Farm

This post was authored by William Wantz, Esq.

A commercial solar farm was proposed for 86 acres adjacent to Cearfoss, a designated rural village in Washington County MD. Washington County’s comprehensive plan and special exception requirement protect rural villages from incompatible encroaching development.

Perennial Solar obtained an option to lease 86 acres adjacent to Cearfoss, on which they proposed to develop a large solar generating facility, and obtained a special exception from the zoning board, despite demonstrable inconsistency with the comprehensive plan and adverse effect on surrounding residential properties.  Cearfoss residents sought judicial review in the Circuit Court, in which the County became an additional party.

On appeal, the Circuit Court dismissed, finding implied preemption of local zoning by the Maryland Public Service Commission (PSC), on the basis of its regulation of large solar generating projects. Implied preemption differs from express preemption in that implied preemption is found by a court, while express preemption is determined by the legislative body.

Cearfoss residents and the County appealed to the Court of Special Appeals. As judicial review continued, Maryland legislatively amended and refined the respective roles of local government and the PSC, requiring an applicant for PSC approval to demonstrate, inter alia, consistency with the local comprehensive plan. The legislative proposal provided a testimonial role for local government in hearings before the PSC.  Finding that local government would have a seat at the regulatory table, the Court of Special Appeals revoked its zoning authority.

Opining that the comprehensive plan was only a guide, and analogizing the need for a solar farm in Cearfoss to a 1990 approval of a regional high-voltage transmission line in Howard County v. Potomac Electric Power Co., 319 Md. 511 (1990), the court observed that the PSC’s regulation of certain solar generating enterprises was pervasive. The court declined to acknowledge local land use expertise, or the relative inexperience of the PSC in local land use controversies.  Nor did the appellate court undertake to reconcile its decision with Maryland’s longstanding statewide legislative public policy that planning and zoning shall be implemented by local government.  Maryland Code, Land Use Article, §4-101 

On November 28, 2018, the Board of County Commissioners filed a petition for a writ of certiorari in the Maryland Court of Appeals.

Board of County Commissioners of Washington County, et al. v. Perennial Solar, LLC, 2018 WL 5993859 (MD App. 11/ 15/2018)

This post was authored by Matthew Loeser, Esq.

Rock of Salvation Church, located at 131 Cortlandt Street, purchased the adjoining property, located at 135 Cortlandt Street, in July 2012. The premises located at 135 Cortlandt Street, and the premises located at 139 Cortlandt Street, formerly had a common ownership. In July 1998, while the parcels were still under common ownership, the Village approved a site plan for 139 Cortlandt Street. The 1998 site plan reflected use of a common driveway, certain shared parking spaces, and contemplated certain shared drainage facilities. Additionally, the former owners signed a Declaration of Easement dedicating five parking spaces on 135 Cortlandt Street to benefit the tenants and/or occupants of 139 Cortlandt Street, and an easement over 135 Cortlandt Street.

In June 2013, the church submitted an application to the Village’s Planning Board for site plan approval of an off-street parking lot to be located at 131 and 135 Cortlandt Street to provide parking to its parishioners. After public hearings, the Planning Board granted the application with certain conditions, including that the church remove the planned implementation of a vehicular gate for the parking lot, and that the church record an access and drainage easement upon 135 Cortlandt Street for the benefit of 139 Cortlandt Street, “consistent with historical uses and practices.” The petitioners commenced this proceeding pursuant to Article 78 to review the determination. The Supreme Court denied the petition and dismissed the proceeding.

The court first noted that the Planning Board had the authority, pursuant to Village of Sleepy Hollow Code § 450–68(A), to impose such reasonable conditions and restrictions as were directly related to and incidental to a proposed site plan. As such, the Planning Board could consider criteria such as whether the proposed project was consistent with the use of surrounding properties, whether it would bring about a noticeable change in the visual character of the area, and whether the change would be irreversible. As the record reflected that the Planning Board’s approval of the church’s application, subject to the conditions at issue herein, had a rational basis, was not illegal, and was not arbitrary and capricious, the court affirmed the Supreme Court’s determination.

Rock Salvation Church v Village of Sleepy Hollow Planning Board, 2018 WL 6187124 (NYAD 2 Dept. 11/28/2018)

This post appeared originally on the Rocky Mountain Sign Law Blog and is reposted with permission.  The original post can be found here:

Earlier this year, after a telecom millionaire with a checkered past challenged the Town of Palm Beach, Florida’s architectural review ordinance on First Amendment grounds, a federal magistrate judge in Florida issued a report and recommendation finding that the house proposed by the applicant was not entitled to First Amendment protection.  The court then entered summary judgment in favor of the town.

Donald Burns sought to construct a new, modern home in a neighborhood otherwise characterized by more traditional architecture.  He filed an application in 2014 to demolish his existing home and construct the new house.  His self-declared intent was to distinguish himself from his neighbors and to communicate modernist design elements to the community.  Neighbors opposed the project.  After reviewing several iterations of the proposed design, the town’s Architectural Commission denied Burns’s application in 2016.  Burns then filed suit, alleging violations of the First Amendment as well as claims under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The court first iterated that it was the plaintiff’s burden to establish that the activity in question was expressive conduct protected by the First Amendment.  The court considered the Eleventh Circuit’s two-part test for determining whether conduct receives First Amendment protection, which requires analyzing whether the actor intends to communicate a message and whether there is a “great likelihood” that a reasonable viewer would understand the conduct is communicative.  The court also considered case law on the distinction between commercial merchandise and expressive products.  The court noted that only two prior cases had addressed questions of whether architecture constituted protected speech:  a 2004 federal district court case in Nevada held that residential architecture was not protected, while a 1992 Washington case found that religious architecture was sufficiently expressive so as to receive First Amendment protection.

Applying the test typically applied to determine whether merchandise is expressive, the court found that Burns’s proposed home was not expressive conduct deserving of First Amendment protection.  The house, in the court’s eyes, had a predominantly non-expressive purpose:  it was intended for residence by an individual or family.  Additionally, the court found that it was unlikely that a reasonable person would view the house as expressive conduct.  Accordingly, the court declined to review the architectural review ordinance under the First Amendment.

The district court adopted the magistrate’s report and recommendation in late September.  The case is now on appeal to the Eleventh Circuit.  This case is of particular interest to First Amendment observers, as cases involving questions of whether architecture is protected under the First Amendment are few and far between.

Burns v. Town of Palm Beach, No. 17-CV-81152, 2018 WL 4868710 (S.D. Fla. Jul. 13, 2018).

This post was authored by Matthew Loeser, Esq.

In this case, a two-acre parcel of land, upon which was a used auto sales dealership, an automotive repair shop, and an area for the storage of cars and boats, was located in a business district in which gasoline service stations were a permitted use with a special permit. In 2013, the petitioner QuickChek Corporation applied to the Town of Islip Planning Board and the Town Board of the Town of Islip for special permits to use the subject property as a convenience market, a minor restaurant, and a gasoline service station. The Town Board denied the application for a special permit to operate a gasoline service station, and the petitioners commenced this Article 78 proceeding. The Supreme Court granted the petition, annulled the Town Board’s determination, and remitted the matter to the Town Board for the issuance of the requested special use permit.

On appeal, the court found that the record reflected that with regard to the alleged increased volume of traffic, there was no showing that the proposed use of a gasoline service station would have a greater impact on traffic than would other uses unconditionally permitted. Additionally, while there was evidence that traffic would be increased by 3%, there was no evidence indicating that the proposed use would have any greater impact than would other permitted uses. Thus, the court found the alleged increase in traffic volume was an improper ground for the denial of the special permit. Accordingly, the material findings of the Town Board were not supported by substantial evidence. The court therefore upheld the Supreme Court’s determination to grant the petition, annul the Town Board’s determination, and remit the matter to the Town Board for the issuance of the requested special permit.

Quickchek Corporation v Town of Islip, 2018 WL 6187131 (NYAD 2 Dept. 11/28/2018)

This post was authored by Matthew Loeser, Esq.

In 2014, the Baltimore County Council passed a bill that required hookah lounges in the County to close between midnight and 6:00 a.m. every day. This bill amended the Baltimore County Zoning Regulations (“BCZR”) to include a definition of “Hookah Lounge” that restricted hookah lounges’ hours of operation. Towson Nights hookah lounge alleged that, absent the County ordinance, approximately 90% of its business would take place between 11:00 p.m. and 2:00 a.m. As such, Appellants contended that the restriction on business hours was equivalent to a cessation of the business’s lawful use, which should have entitled Towson Nights to an “amortization” period longer than the 45 days given to comply with the act.

On appeal, Appellants first alleged that the County’s placement of time restrictions in a zoning ordinance was ultra vires. As a charter county, Baltimore County received a grant of express powers from the General Assembly, which specify that Baltimore County may “pass any ordinance, resolution, or bylaw not inconsistent with State law that … may aid in maintaining the peace, good government, health, and welfare of the county.” Thus, Baltimore County had the express power to pass ordinances to protect the public’s health and safety. Here, the court found that the County’s restriction on hookah lounges’ hours of operation fell squarely within this ambit. Accordingly, Baltimore County did not act ultra vires by enacting time restrictions in a zoning regulation.

Appellants next argued that requiring hookah lounges to close at midnight was an irrational and arbitrary violation of substantive due process as guaranteed by the Fourteenth Amendment. The record indicated that in an executive summary of the bill prepared for Councilmembers by the County’s Legislative Counsel, the County stated that in a six-month-period prior to the bill’s adoption, there were 37 arrests and 39 calls for service at various hookah lounges throughout the County, all of which occurred after 9:00 p.m. Moreover, two separate stabbing incidents occurred outside Appellants’ own hookah lounge after midnight on the very day that the bill went into effect. Additionally, the County’s executive summary of the ordinance observed that “a typical one-hour-long hookah smoking session involves inhaling 100-200 times the volume of smoke inhaled from a single cigarette.” As such, the court found that the County had valid health and safety reasons to regulate hookah lounges on the basis of hookah use.

Finally, Appellants argued that requiring hookah lounges, but not similar businesses such as cigar bars, liquor licensed establishments, other “BYOB” establishments that were not hookah lounges, to close at midnight was an arbitrary distinction that violated the Equal Protection Clause of the Fourteenth Amendment. The court found that despite Appellants’ characterization of hookah lounges as basically equivalent to other businesses, such as cigar bars, the County’s distinction was reasonable. Furthermore, the court noted that the concern for the public safety did not require Baltimore County to “strike at all evils” by requiring all sites that offered late-night entertainment to close at midnight. Accordingly, the court held Baltimore County’s requirement that hookah lounges close at midnight was a valid exercise of the County’s police power, and did not violate due process nor equal protection.

Baddock v Baltimore County, 2018 WL 6187574 (MD 11/28/2018)

This post was authored by Matthew Loeser, Esq.


The owner of twenty-three acres of real property in Madison County filed a petition to rezone and reclassify real property from R-1 (residential) to C-2 (commercial). In 2006, a hearing on the petition was held before the Madison County Planning and Zoning Commission, which unanimously recommended approval of the petition to rezone with the appropriate amendments to the land-use plan. The Madison County Board of Supervisors acknowledged and approved the Commission’s recommendation to rezone the subject property from R-1 to C-2. In 2016, two developers, L & J Holdings LLC and Cedarstone Commercial presented site plans to the Commission for approval to build a mini-storage facility, and Cedarstone Commercial requested approval to build an office warehouse. The Board accepted the Commission’s recommendation and approved the site plans for both the mini-storage facility and the office warehouse. Herder then appealed the Board’s decisions to the Madison County Circuit Court, which affirmed the Board’s decisions to approve the site plans.


On appeal, Herder contended that the original 2006 rezoning of the subject property from R-1 to C-2 was void and unenforceable since proper notice was not given and a public hearing was not held. Despite this contention, the record indicated a “Notice of Public Hearing on Petition for Rezoning” was published in the Madison County Herald. The notice described the subject property and notified the public of the time and location of the hearing that would be held before the Madison County Planning and Zoning Commission. Additionally, the minutes from this hearing reflected that the petition was considered and ultimately approved by the Commission at the date, time, and location identified in the notice. The court therefore held that proper notice was given and a public hearing was held regarding the 2006 rezoning of the subject property.


Herder next alleged that the 2006 rezoning of the subject property was void because there was no finding of a manifest error in the original rezoning or a change in the character of the neighborhood to support the rezoning. Here, the subject property consisted of twenty-three acres, two of which were already zoned and classified as C-2. Additionally, the subject property was adjacent to both residential and commercial properties, including a mini-storage facility and an Entergy substation. Furthermore, the minutes from the June 8th hearing indicated that the Commission considered the petition and the arguments related to the change in the character of the neighborhood, and ultimately recommended approval of the request.


Lastly, Herder contended that if the 2006 rezoning was not void, then its approval was conditioned upon restrictive covenants. While the petition included language suggesting that the property would be “subject to restrictions as designated by restrictive covenants to be recorded,” these restrictive covenants were never recorded. Pursuant to Mississippi Code Annotated section 89-5-5, for order for a covenant to take effect, it must be recorded. Additionally, neither the minutes of the Commission or the Board referenced these restrictive covenants or any conditions to be placed on the subject property. Accordingly, the court affirmed, holding there was no evidence to suggest that the Board’s actions were arbitrary or capricious.


Herder v Madison County Board of Supervisors, 2018 WL 6177425 (MS App. 11/27/2018)

This post was authored by Matthew Loeser, Esq.


The Code of the Metropolitan Government of Nashville and Davidson County, Tennessee was amended in 2016 to require that businesses offering alternative financial services be located 1,320 feet apart. Conoly Brown and David Hood sought a building permit from the Metropolitan Department of Codes Administration to rehabilitate a building located on their property and open a business on the property that would provide alternative financial services such as check cashing, title loans, deferred presentment loans, and flex loans, as well as money transfers, debit cards, money orders, ATMs, tax preparation, local utility payments, bill payments, and postage. The Metropolitan Department of Codes Administration denied their application due to the fact that the building location was within 1,320 feet of an existing alternative financial services provider. Petitioners then initiated the present action and sought a declaratory judgment that “certain provisions of the Metropolitan Zoning Ordinance (“MZO”) violated their due process and equal protection rights under the Tennessee and United States constitutions.” The trial court granted Metro’s motion to dismiss and petitioners appealed.


On appeal, petitioners claimed court’s ruling on the motion to dismiss was improperly based upon matters outside the pleadings. Specifically, the preamble of Title 17 of the Metropolitan Code referenced a study performed by the Regional Planning Agency of Chattanooga-Hamilton County, an article in the Texas Business Review, and actions taken by the cities of Chattanooga and Memphis. Petitioners argued that the trial court’s consideration of the preamble to the zoning ordinance was inappropriate because the ordinance was not referenced in the Petition and the trial court improperly made “determinative findings of fact based upon hearsay contained in the preambles of the ordinances.” The court rejected this argument and found that the preamble merely set forth the basis upon which the ordinance was passed. As such, the court held no error was committed by the trial court in considering the preamble in determining whether Metro had a rational basis for adopting the ordinance.


As to their due process claim, while the petitioners admitted that “concerns about property values and economic redevelopment were valid concerns and a proper state interest for consideration in enacting zoning regulations,” they argued that the distance requirement was not reasonably related to advancing that interest. The court found the preamble to the ordinance included concerns related to the detrimental effect of clustering alternative financial services on property values. Additionally, the statements in the preamble reflected legitimate legislative purpose of protecting the welfare of economically vulnerable citizens. Accordingly, the court affirmed the dismissal of the Petitioners’ due process claim.


Petitioners next contended that alternative financial services businesses and financial institutions were similarly situated because they provided substantially the same services, in violation of their equal protection rights. The ordinance’s preamble identified specific characteristics of alternative financial services businesses, including: the high fees associated with using alternative financial services; permissive regulations enabling such establishments to charge high interest rates; and the proliferation of alternative financial services businesses. The court found that these facts were reasonably related to the classification and provided a reasonable basis for the difference in treatment of the two types of business. Accordingly, the court affirmed the dismissal of the equal protection claim.


Conoly Brown v Metropolitan Government of Nashville and Davidson County, 2018 WL 6169251 (TN App.  11/26/2018)


This post was authored by Matthew Loeser, Esq.


Osmond Senior Living, LLC submitted plans and obtained the appropriate building permit to construct a new, three-story assisted living facility in Lindon City. The State Fire Marshal Division alerted Osmond that the structure, which was already under construction, might not be approved for licensure as an assisted living facility because the third floor violated building codes. As a result, Osmond changed its plans, removed the partially completed third story, and built a two-story facility instead. Six months later, the State Fire Marshal told Osmond that three-story assisted living facilities were allowed. Osmond then brought an unconstitutional takings claim against the Department of Public Safety and the Department of Health and sought millions in compensation for renovation costs and lost revenue. The district court ruled that it lacked subject matter jurisdiction as Osmond did not exhaust its administrative remedies.


On appeal, Osmond contended that it was not required to exhaust its administrative remedies since the legislature did not specifically delegate adjudicative authority to the Utah Fire Prevention Board. Specifically, while Subsection 204 of the Utah Fire Prevention and Safety Act listed the Board’s duties, it did not delegate adjudicative authority to the Board. Instead, Subsection 204 stated that creating a local board of appeals in accordance with the state fire code “shall be administered locally by a city, county, or fire protection district.” Even though it was unclear why the legislature chose to delegate that authority to a local entity rather than to the Utah Fire Prevention Board itself, the statutory language made it clear that adjudicative authority for the “application and interpretation of a code,” had been delegated by the legislature to a local board of appeals.


Osmond next contended that, even if the legislature delegated adjudicative authority, Osmond was excused from exhausting those remedies because the State Fire Marshal acted outside the scope of his authority. Specifically, Osmond claimed that the statute authorized enforcement “against state-owned property, including school district owned property, asylums, mental hospitals, homes for the aged, residential health-care facilities” but that an “exception to-the-exception” for privately owned property used for schools in corporate cities and county fire protection districts existed. Based on the plain language of the statute, the court found was clear that “residential health-care facilities” were among the subset of private properties to which the statute expressly applied.


Lastly, the court found the procedure for an administrative adjudicative proceeding only applied to adjudicative acts, and not to discussing a potential violation with a builder. Here, the record reflected that the State Fire Marshal did not issue an administrative ruling or conduct an adjudicative proceeding in sending the letter or holding the meeting. As such, the State Fire Marshal could not exceed his authority by failing to follow the procedures for adjudicative actions because there was no adjudication. Accordingly, the court affirmed, holding that Osmond was not excused from exhausting administrative remedies.


Osmond Senior Living v Utah Department of Public Safety, 2018 WL 6131999 (UT App. 11/23/2018)

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