EDF Renewable Energy (“EDF”) applied for a permit to construct approximately 25 wind turbines, 525 feet high, as well as roads, collection cables, and a substation on properties located in the Township’s C–1 (Conservation), A–1 (Agricultural), and I–1 (General Industrial) zoning districts. The zoning officer denied the application because the proposed use was not a permitted use in the districts. EDF appealed from the order of the Court of Common Pleas of Luzerne County, which affirmed the decision of the Foster Township Zoning Hearing Board to deny EDF’s application for a special exception to construct wind farms in the three different zoning districts in the Township.

As the applicant for a special exception, EDF had the burden of proving that the proposed use met the objective standards set forth in the zoning ordinance. Specifically, EDF’s failure to submit a site plan as required by Ordinance Section 255–52(B) was sufficient grounds to deny the special exception application. Additionally, even though EDF referred to a map during the hearing, neither the map nor the testimony of EDF’s witnesses satisfied the Ordinance’s requirement for a site plan that reflected the location of all structures, existing and proposed; all open space areas; means of traffic access and all streets; contours of the site for each five feet of change of elevation; and the location of any residential structure within 200 feet of any property boundary line of the subject site. Accordingly, the judgment of the trial court was affirmed.

EDF Renewable Energy v. Foster Township Zoning Hearing Board, 150 A.3d 538 (PA Commwlth 11/22/2016)

New Cingular Wireless, doing business as AT&T Mobility (“AT&T”), applied for a permit from the Lexington-Fayette Urban County Planning Commission to build a 125-foot cell-phone tower. Several Kentucky residents sued to stop the company from building the cell-phone tower near their homes, and alleged tort claims arising out of their beliefs that the tower would harm their health, devalue their properties, and emit excessive light and noise. The district court dismissed their claims and denied their request to amend their complaint.

On appeal, the residents first argued that the TCA neither expressly nor impliedly pre-empted their tort claims. The court determined, however, that allowing RF-emissions-based tort suits would impair the federal government’s ability to promote the TCA’s goals. The Residents requested discovery to find proof of whether AT&T’s proposed tower would exceed the FCC’s standards, but the court found that the Residents failed to allege facts in their complaint to support such a claim. Furthermore, the court held that approving this request would turn discovery into a fishing expedition.
As to AT&T’s argument that the Residents’ claims constituted an improper collateral attack on the Commission’s decision to approve the tower, the court found that while the Residents filed their administrative action on the last allowable day under the applicable 30-day statute, they failed to name the property owner of the land as a defendant – which the statute required for perfecting such an appeal. Moreover, the Residents failed to show that their harms arose from anything other than the Commission’s decision. Specifically, Residents’ tort claims relied entirely on alleged harms resulting from the Commission’s approval of the tower design and siting, and therefore Residents were merely attempting to attack the Commission’s decision through different means.
Lastly, the court found that the district court did not abuse its discretion in denying the Residents’ leave to amend. The court determined that once AT&T removed the case to federal court, the Residents could have amended the complaint as a matter of course during the 21 days after AT&T filed its motion to dismiss, moved for leave to amend after that period, or sought the written consent of AT&T. However, over the year that followed, from the removal to the district court’s issuance of its dismissal order, the Residents took none of those actions. The district court’s dismissal of Residents’ claims and leave to amend was therefore affirmed.
Robbins v New Cingular Wireless,  2017 WL 395978 (6th Cir CA 1/30/2017)

Starting in 2004, Wal-Mart sought a variety of variances and waivers needed in order to build a new store in a commercial zoning district of the Township of Egg Harbor. Years earlier in 2000, the Township had adopted an ordinance to create “minimum buffers around property perimeters for all new major site plans and subdivisions.” However, since the Township never enforced this ordinance, it was rescinded and replaced with another ordinance in 2011. Before the 2011 ordinance was adopted, the Township Administrator, Peter Miller, had testified about the ineffectiveness of the 2000 ordinance and how the 2011 ordinance would codify actual existing practices. This case began when ShopRite sued the Township to challenge its approval of Wal-Mart’s application and its adoption of the 2011 ordinance and other ordinances. At the trial level in New Jersey, David Zimmerman, ShopRite’s planning consultant, opposed the 2011 ordinance because he argued that it constituted prohibited spot zoning, and that it was only passed for the easy approval of Wal-Mart’s application, which originally required numerous variances and waivers under the 2000 ordinance. Miller, who had previously voted for Wal-Mart’s application, also testified at the Township’s witness. The trial judge upheld the 2011 ordinance.

On appeal in the New Jersey Superior Court, Appellate Division, ShopRite argued, as one of its points, that Miller’s involvement in Wal-Mart’s application approval process and his active role in the proposal and promotion of the 2011 ordinance presented a conflict of interest. Specifically, ShopRite argued that the 2011 ordinance was actually “generated by Wal-Mart’s application.” The court held that Miller did not have a conflict of interest because he had no interest in the outcome of Wal-Mart’s application whatsoever. The relevant statute allowed him to serve on the board as a municipal official. Even if it were true that Miller “actively promoted and pursued zoning changes and new ordinances while Wal–Mart’s application was pending before the Board,” the court held Miller’s lack of personal or financial interest allowed him to have a dual role in Wal-Mart’s application process and the 2011 ordinance regardless of the timing of the application and ordinance approvals.

Vill. Supermarkets, Inc. v. Twp. of Egg Harbor, 2015 WL 8481103 (N.J. Super. Ct. App. Div. 4/8/2015).


Pennswood applied for a variance to operate a step-down facility for recovering substance abusers in a medium density residential district. At the hearing, one of the Board members, Ms. Wardell, stated that she did not believe that the step-down facility belonged in the residential area. Pennswood argued that her statement “emboldened the ‘tone, and content’ of the objectors’ subjective statements,” causing the Board to take the objectors’ side and disregard Pennswood’s evidence. The court held that there was no evidence that the statement constituted bias or that it emboldened the objectors.

Pennswood Manor Real Estate Assocs., LLC v. Zoning Hearing Bd. of City of Scranton, 2015 WL 5671857(Pa. Commw. Ct. 9/24/2015).

The Darien Planning and Zoning Commission considered the application of Darien Athletic Foundation, Inc. (DAF) to make changes to sports fields at Darien High School. Before the Commission made its decision, Plaintiff objected to the participation of commission member John Sini because he was a prior spokesperson for the Darien Junior Football League (DJFL) and a founding member of DAF. Despite this objection, the Commission ultimately granted the application with Sini’s participation as a commission member. Plaintiff appealed, arguing that application’s approval was invalid due to Sini’s conflict of interest. The court held that Sini’s previous affiliations with DAF and DJFL did not disqualify him because the record showed that his “open mindedness was not imperiled and that he considered whether the application conformed with the regulations in a fair and impartial manner.” Additionally, there was no evidence that Sini had a financial or pecuniary interest in the outcome of the application.

As such, the court reasoned that not every “conceivable interest” is sufficient to disqualify a zoning official. If this were true, many individuals, especially those who are active in their communities, would not be able to participate on zoning commissions. Rather, courts must determine whether an interest disqualifies an official on a case-by-case basis, requiring a review of whether such interests indicate “the likelihood of corruption or favoritism.”

Michalski v. Planning & Zoning Comm’n of Town of Darien, 2015 WL 5976190 (Conn. Super. Ct. 9/14/2015).


Plaintiffs appealed a decision of the Town of Litchfield’s Planning and Zoning Commission approving a site plan application by Stop & Shop, alleging, among other things, that the Commission’s retained consultant had a conflict of interest that rendered his recommendations on the site plan application inappropriate. Specifically, Plaintiff argued that because the consultant had performed work for Stop & Shop ten years ago, it was inappropriate for the Commission to rely on his recommendations in making its determination on the site plan application. The court held that there was no case law to support Plaintiffs’ allegation that the consultant’s prior work with Stop & Shop raised “the specter of a conflict of interest and fundamental unfairness in the process.” The relevant Connecticut statute regarding zoning board conflicts of interest applied “only to members of zoning authorities, not to experts an authority retains to assist it in its work.” Regardless, even if the court were to find a conflict of interest, the remedy would be to order the Commission to hire a different consultant, not to overturn the Board’s decision in its entirety and sustain the appeal. 

Baker v. Planning & Zoning Comm’n of Town of Litchfield, 2015 WL 776510 (Conn. Super. Ct.1/29/2015).


The City of Beaumont created a historic cultural landmark preservation district and a Historic Landmark (“HL”) Commission was created to “approve or recommend action on buildings and structures within the district.” At a Planning and Zoning (“P&Z) Commission hearing regarding a permit for an office building in this historic district, at least two members of that Commission also lived in that district. Furthermore, a city employee who prepared staff reports for both the Planning and Zoning Commission and the HL Commission lived in the historic district. The Chair of the Committee on Land and Resource Management, asked the Texas Attorney General whether these Commissioners and the staff person who reside in the historic district may vote on matters that affect that district.

First, Attorney General noted that P&Z Commissioners and HL Commissioners are local public officials because they have more than an advisory role. However, based on previous Office of the Attorney General Opinion Letters, a city employee who prepares staff reports is not considered to be a local public official for the purpose of the conflict of interest statute.

Second, the Attorney General noted that under Texas law, only local public officials who have a substantial property interest shall file an affidavit reporting their interest before they vote on a matter. With respect to real property, such a substantial interest is real property valued at $2,500 or more.

Third, the Attorney General opined that that local public officials must abstain from a vote when it is reasonably foreseeable that voting for or against a particular action will have a special economic effect on the value of the local public officials’ property.

 Tex. Att’y Gen. Op. KP-0105 (2016)


Developer, Furlong Development Company and its owner, Gordon Stacy, owned a 26–acre tract of land in Georgetown, Kentucky. Developer intended to develop the property into 90 single family residential lots known as “The Enclave.” Pursuant to a local municipal ordinance, Developer was required by the Georgetown-Scott County Planning and Zoning Commission, to provide a surety bond in the amount equal to 125% of the estimated cost of building certain infrastructure. Platt River Insurance Company (“Insurer”) backed the bonds. In 2008, the real estate market crashed, and “The Enclave” development was worth less than the amount remaining on the loan. Despite this, the Bank agreed to accept a deed in lieu of foreclosure, and transferred the property to another internal holding company, EKT. The Bank also sent a letter to the Commission requesting that the Commission call Developer’s bonds and that the proceeds be placed in escrow for the purpose of reimbursing the Bank for the completion of the necessary infrastructure projects required by the Developer’s approved plat.

Developer Furlong then brought action against county zoning and planning commission and bank, seeking a declaration regarding developer’s obligations under bonding agreements following its default and transfer of property to bank by deed in lieu of foreclosure. The Circuit Court entered summary judgment in favor of defendants. The Developer appealed, and the Court of Appeals affirmed. On appeal, Developer asserted that the bonds were not callable because no homes had been built on the development property prior to Developer’s default. The court found that the relevant documents in the present case were very clear that Insurer, on behalf of Developer as principal, was obligated to pay the bonds. Here, the Bank release documents specifically stated that “there is no assumption by EKT of the obligations and liabilities under any instruments or agreements with third parties and all such obligations and liabilities remain the responsibility of Developer…” Thus, the court found that unjust enrichment was unavailable, since the terms of an express contract controlled.
The record in the present case also indicated that Developer completed significant aspects of the development prior to Developer’s default and subsequent transfer of the property to the Holding Company. The court determined that even though Developer had not yet begun to build a single house on the property, the property had been developed to the point where houses could be built, and the Developer had even attempted to sell individual parcels. The court therefore found that the property had been irreparably converted from rural farm land and had undergone significant stages of sub-division development. Accordingly, the court affirmed the decision of the Court of Appeals.
Furlong Development Co., LLC v. Georgetown–Scott County Planning and Zoning Commission, 504 S.W.3d 34 (2016)

Posted by: Patricia Salkin | February 12, 2017

NY Appellate Court Affirms Denial of Takings Claims Against Town

The owner of a vacant property, located at the end of a private road traversing a bridge in the Town of Wappinger, whose application for a building permit to construct a new house on the property was denied, brought an action against the Town of Wappinger, town’s code enforcement officer of the town, and the town zoning board of appeals, seeking a declaration that state law and an analogous local code provision requiring legal access to the property did not apply to the proposed construction. The Town denied the application on the ground that there was no legal access to the property as required by Town Law § 280–a, and an analogous local code provision, Code of the Town of Wappinger § 240–20, since the road and the bridge were in disrepair and virtually impassable. The lower court denied the owner’s motion for summary judgment and granted defendants’ cross motion for summary judgment and determined that the proposed construction of a new dwelling on the property in plaintiff’s permit application was governed by Town Law § 280–a(1).

On appeal, the court found that, contrary to the plaintiff’s contention, the application of the statute did not produce a result that was absurd or unjust or at odds with its facially evident purpose. The court determined that the plain language of section 280–a was unambiguous and, therefore, there was no basis to consider extrinsic materials to determine the legislature’s intent in enacting the statute. It further found that the legislative history did not support plaintiff’s contention that his proposed construction was excluded from the intended purposes of the statute. Moreover, the court held that the plaintiff failed to make a prima facie showing that the application of Town Law § 280–a, deprived him of a vested right to construct the new house. As such, plaintiff could not show damages for a categorical regulatory taking based on the denial of all economically beneficial use of the property without just compensation.

Accordingly, the court remitted the matter to the Supreme Court, Dutchess County, for a declaration that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 applied to the proposed construction of a dwelling on the subject property.

Kellner v. Town of Wappinger, 42 N.Y.S.3d 326 (2 Dept. 12/7/2016)

Petitioner commenced a proceeding seeking to annul the decision of respondent Village of Fayetteville Board of Trustees to enact Local Law No. 1 of 2015, which amended the zoning district classification of two parcels following the issuance of a negative declaration of environmental significance under the State Environmental Quality Review Act, but provided that the amendment would “take effect only after approval by Onondaga County Department of Transportation and final site plan approval by the Village of Fayetteville Planning Board has been granted.” Respondent Village of Fayetteville and the Board of Trustees filed a joint motion seeking the dismissal of the petition. The Supreme Court granted the motion, concluding that the petitioner’s proceeding was “premature” and that the Board of Trustee’s action under SEQRA was “not ripe for judicial review.”
On appeal, the court found that the Board of Trustees’ simultaneous issuance of a negative declaration and adoption of the zoning amendment rendered petitioner’s challenges to the Board of Trustees’ action ripe for review. Furthermore, the fact that the zoning amendment “was conditioned upon successful reviews and approvals by other agencies did not alter the fact that it became final and binding as to petitioner on the date it was filed.” Moreover, although “rezoning is an ‘action’ subject to SEQRA”, and the future site plan approval process could also constitute an action under SEQRA, the court determined that the fact that petitioner might be aggrieved by a future SEQRA action did not affect the judicial ripeness of the SEQRA challenge relating to a prior action. Accordingly, the court found that when the Board of Trustees issued the negative declaration and amended the zoning laws, the Board of Trustees’ “decision-making process with respect to those issues was complete and petitioner became aggrieved by the SEQRA violation. As such, the court reversed the judgment, and remitted the matter to Supreme Court.
Cor Route 5 Company LLC v Village of Fayetteville, 2017 WL 460613 (NYAD 4 Dept. 2/3/2017)

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