Petitioner’s application for a area variances to build a single-family dwelling on a substandard lot in the Town was denied.  Petitioner appealed to the trial court which upheld the denial and the appellate court affirmed.  The appellate court agreed that that Board of Zoning Appeals engaged in the required balancing test, noting that the Board concluded that the detriment to the surrounding neighborhood should the variances be granted was outweighed by the benefit to the petitioner. Further the Board concluded that the requested variances would have an adverse impact on the physical and environmental conditions of the neighborhood, that the granting of the variances would set a negative precedent in the neighborhood and that the petitioner’ hardship was self-created.  Since the Board applied the statutory balancing test and it was based on substantial evidence in the record, the Court found it has a rational basis and upheld the decision.

Although the petitioners argued that the Board was biased against them and acted out of personal animus, the allegation was raised for the first time on appeal and therefore the Court did not consider it.

Massian v Board of Zoning Appeals of the Town of Brookhaven, 2022 WL 17171201 (NYAD 2 Dept. 11/23/2022)

Macgowan’s application for area variances in 2018 to erect a digital billboard next to the interstate within Town limits was denied under a provision in the Town Code that prohibits off-premises advertising.  He filed suit in federal court and it was dismissed for failure to state a claim upon which relief could be granted.  In 2021 he again requested a variance and the Town again denied it on the same grounds. He filed suit again, which was dismissed by the district court on claim preclusion grounds.

On appeal, the 10th Circuit agreed that the lawsuit involved the same causes of action in the previously dismissed lawsuit since in both cases he raised claims under the First, Fifth, and Fourteenth Amendments.

Macgowan v Town of Castle Rock, 2022 WL 17176307 (10th Cir. CA 11/23/2022)

Posted by: Patricia Salkin | November 22, 2022

Annual Pace Land Use Law Center Conference – December 8th

The Land Use Law Center is pleased to announce the 21st annual Alfred B. DelBello Land Use and Sustainable Development Conference. Scheduled for December 8, 2022, this year’s conference theme is Land Use Under Siege: Revisiting Well Grounded.

Founder’s Award Reception will be held on Wednesday, December 7, 2022.  Join us for a pre-conference reception and networking event at at Haub Law School at Pace University, Tudor Room, 78 North Broadway, White Plain, NY, as we honor this year’s Founder’s Award Recipient, John R. Nolon.

Twenty years ago, land use was well grounded. Local leaders were able to make steady progress to further environmental protection, sustainable development and the revitalization of cities and urban villages. Through optimistic guides to problem solving, using innovative land use laws, Professor John Nolon championed these efforts. Since then, localities have been challenged to address fair housing, a pandemic, shocking revelations of our racist history, threats of preemption of local power, and the ravages of climate change. The challenges today are much greater than in 2001 when Well Grounded: Using Local Land Use Authority to Achieve Smart Growth was first published. A new approach to properly using local land use power is needed. The conference is dedicated to furthering this exploration and to the prolific body of work of Professor John Nolon.

For more information visit our Conference Page at

Petitioners sought to annul the decision of the Village Planning and Architectural Review Board which issued a negative declaration under the State Environmental Quality Review Act (SEQRA) and then granted site plan and architectural review approvals for the repurposing of an existing 57-residential unit, 25,780 square foot building to an 87 unit mixed-income apartment project.

The Court agreed that the Board improperly listed the project as an unlisted action, rather than a Type I action, however the Court noted that, “a misclassification does not always lead to the annulment of the negative declaration if the lead agency conducts the equivalent of a type I review notwithstanding the misclassification” (citations omitted).  The Court determined that the Board did conduct a coordinated review and demonstrated that it did consider environmental factors, and that it therefore complied with SEQRA mandates.  The Court also found that in finding no significant adverse impact on the environment, the Board too the requisite hard look  and made a reasoned elaboration to support its determination.

In the Matter of Williamsville Residents Opposed to Blocher Redevelopment v Village of Williamsville Planning and Architectural Review Board, 2022 WL 4591376 (NYAD 4 Dept. 9/30/2022)

This post was authored by Jennifer Champey, Jacob D. Fuchsberg Touro Law Center

This case, decided by the Appellate Division, First Department of New York, on appeal addresses a matter pertaining to the northern section of a side lot in New York City. The court discusses the application Zoning Resolutions and finds that the Board of Standards and Appeals (BSA) was reasonable in its determination but does urge that inconsistencies in the Zoning Resolution be addressed.

The petitioner claims that the lot in question was below curb level and therefore in violation of New York City Zoning Resolution § 33-293. This section requires, that in a commercial district near a rear lot line in a residential district, “an open area at curb level” be apparent. The BSA, however, asserted that the side yard of this lot was in compliance with ZR §33-22. The later section is less strict and states that a yard which is higher than curb level should not have its “natural grade level disturbed” solely to ensure compliance with the section. Due to this language, the resolution can hardly be deemed a requirement. The court reasoned that this was substantial evidence in showing that the BSA’s finding was rational an “adequate to support a conclusion of ultimate fact.”

Rachmanov v Board of Standards and Appeals of the City of New York, 2022 WL 16984198 (NYAD 1 Dept 11/17/2022)

This post was authored by Matthew Loescher, Esq.

The trial court found that trees on Suzanne Yopek’s property were a public nuisance that had to be abated because, under federal regulations, they encroached into the area used by aircraft when they land or take off from the Brighton Airport. This area was also known as an approach protection area (APA). In this case, Yopek appealed the trial court’s order granting defendant Brighton Airport Association, Inc.’s (BAA) motion for summary disposition, and denying in part its motion for summary disposition.

On appeal, Yopek contended that the trial court erred by using federal, rather than state, standards to identify the protected area. The trial court held that, according to the Michigan Department of Transportation’s (MDOT) Bureau of Aeronautics survey, there was an encroachment of the APA under federal regulations. The court further found that the purpose of the Aeronautics Code was to protect the public by regulating the areas surrounding airports. By this reasoning, the violation of federal regulations by way of an encroachment into what those regulations recognize as an APA constituted a public nuisance that was required to be abated. Conversely, under MCL 259.156, only structures or plantings that encroach on APAs as defined by Michigan state Aeronautics Commission constitute a nuisance. Importantly, there was no reference to federal regulations in MCL 259.156. AS the statute was clear and unambiguous, judicial construction was neither appropriate nor permitted. Accordingly, the trial court erred by misreading the statute and rejecting Yopek’s assertion that only state standards applied.

The court next found that the trial court’s erroneous conclusion that the federal standards applied led it to err in finding that there was no factual dispute regarding whether Yopek’s trees encroached into the APA. The record reflected that the trial court found that MDOT’s updated inspection of the runway “determined that under the Michigan Aeronautics Code, the trees are not encroaching, however, under the Federal Air Regulations the trees are encroaching into the APA.” In his argument against this, Yopek emphasized that MCL 259.156 requires that, in order for a court to declare her trees a public nuisance subject to abatement, the trees must encroach upon any APA “determined by the Michigan aeronautics commission in the state plan for approach protection areas.” Here, the May 2021 survey provided by MDOT-OA explicitly declared that there were no “encroachments observed” according to the “aeronautics commission general rules.” As such, the court determined the trial court erred by finding that there was no genuine issue of material fact that there were obstructions on Yopek’s property that encroached on the APA.

Yopek next alleged that the trial court erroneously failed to address her claim that BAA was not entitled to seek equitable relief because, according to her, BAA had “unclean hands.” On remand, the trial court was instructed to consider whether the BAA acted unfairly: by extending the runway or taxiing area, including whether BAA took any actions to make the trees on Yopek’s property qualify as a nuisance when they did not constitute a nuisance before that action; or by operating in conflict with a local zoning ordinance.

Lastly, the court noted that because the parties did not make any claims in their pleadings involving the validity of the original easement, and Yopek did not consent to the trial court’s consideration of the issue, the trial court’s resolution of the validity of the original easement was beyond the scope of the case. Accordingly, the court held that the trial court should not have addressed the validity of the original easement.

Yopek v Brighton Airport Association, Inc., 2022 WL 4390551 (MI App. 9/22/2022)

This post was authored by Matthew Loescher, Esq.

In this case, a special permit applicant filed suit against his neighbor for libel per se, libel per quod, slander per quod, and defamation, alleging neighbor’s comments at a planning and zoning commission meeting caused reputational damage to his standing in community and profession and falsely accused him of criminal misconduct and being untrustworthy. The Superior Court, Judicial District of Stamford-Norwalk, granted the neighbor’s motion to dismiss on grounds that court lacked subject matter jurisdiction and denied the applicant’s motion to reargue. Applicant appealed, and the Appellate Court affirmed.

On appeal, the court found that given the absence of procedural safeguards to ensure the reliability of a proceeding before a planning and zoning commission, the public benefit to be derived from statements made by the public during a special permit application hearing before such a commission was not sufficiently compelling to outweigh the possible damage that untruthful statements could cause to individual reputations to warrant granting absolute immunity to such statements. Additionally, the limited authority of the commission to reject evidence or otherwise limit what information was brought before it to ensure the reliability of the proceeding, and the lack of a public policy rationale for extending the “strong medicine” of absolute immunity in this context, supported the court’s finding that a public hearing on a special permit application before a town’s planning and zoning commission was not quasi-judicial.

Having concluded that a hearing on a special permit application before a town’s planning and zoning commission was not quasi-judicial in nature, the court further held that the Appellate Court incorrectly determined that the defendant’s statements were entitled to absolute immunity. The judgment of the Appellate Court was therefore reversed and the case was remanded with direction to reverse the trial court’s judgment and to remand the case to the trial court for further proceedings.

Priore v Haig, 2022 WL 4099434 (CT 9/7/2022)

This post was authored by Matthew Loescher, Esq.

The Jefferson County Board of Commissioners granted Appellant Tina Gilgen a conditional use permit that allowed her to place a mobile home on real property she owned with her husband, Kelly Gilgen, in Jefferson County. As the Gilgen property fell within the City of Ririe’s area of impact (“AOI”), the City of Ririe petitioned for judicial review, asserting that the County erroneously approved Gilgen’s application by applying Jefferson County zoning ordinances within the AOI instead of City ordinances, which would have resulted in a denial of Gilgen’s application. The district court entered an order granting the City’s petition, reversing the County’s original decision, and remanding the matter to the County. On remand, the County issued an amended decision that denied Gilgen’s application for a conditional use permit. Gilgen then filed three motions for reconsideration from the district court’s order remanding the case, alleging the district court did not have jurisdiction to consider the City’s petition. These motions were denied, and Gilgen appealed.

On appeal, Gilgen argued that the district court erred as a matter of law in determining that it had subject matter jurisdiction over the City’s petition for judicial review. Conversely, the City contended that the district court had jurisdiction to grant the declaratory relief it sought by virtue of Local Land Use Planning Act (“LLUPA”). Here, the record reflected that the City failed to include LLUPA as a statutory basis for its appeal of the County’s decision in its petition filed with the district court. The court found that even if the City’s petition had pleaded LLUPA, that statute did not offer any support to the City. The court noted that LLUPA limits judicial review to “affected persons”, which it defines as “one having a bona fide interest in real property” which could be adversely impacted by a land-use decision. Nevertheless, the district court agreed with the City, holding that because Gilgen’s property was located within the “area of impact” controlled by the AOI Agreement between the City and the County, and because Gilgen’s property was subject to the City’s ordinance, the City was an affected person with an interest in real property that might be adversely impacted.

The court noted on appeal that the AOI Agreement between Jefferson County and the City of Ririe required the County to apply the City’s ordinances outside its city limits, but within the AOI. Here, Jefferson County conceded it did not apply the City’s ordinances when it originally granted Gilgen’s conditional use permit. As such, the County erred in its application of the AOI Agreement. The proper avenue for relief would have been for the City to file an original action seeking declaratory relief under Idaho Code section 10-1201, or pursuing injunctive or other appropriate relief under the APA as provided in section 67-6527. Accordingly, the court vacated the district court’s judgment, finding the City lacked standing to file a petition for judicial review.

City of Ririe v Gilgen, 515 P.3d 25 (ID 8/9/2022)

This post was authored by Kevin Sun, Jacob D. Fuchsberg Touro Law Center

Larry and Kristi Whaley applied to rezone a 1.87 vacant lot zoned residential to allow for a commercial use. His lot was surrounded by other commercial lots, and he desired to sell it, the sale of which was conditioned on the rezoning. The village board granted the application and rezoned property. Miller, the neighboring property owner appealed. Miller alleged that when Whaley submitted the application, a Trustee, who is a the mother of Kristi Whaley, actively participating in the rezoning. Miller claimed that as a result the vote violated his constitutional due process rights to be heard in a fair and impartial hearing. The explanation was that there was no conflict of interest since she will not receive any portion of the proceeds. During the hearing, only 2 residents supported the sale, but 9 residents opposed it. Despite this, the rezoning proceeded forward as the Trustee, the family member of the Whaleys, cast the deciding vote in a 2-1 split.

On appeal, the Court held that the village board’s decision to rezone property from residential to commercial was legislative act and that the circuit court had jurisdiction to consider any purported error in village board’s legislative act of rezoning property from residential to commercial.  As to the alleged conflict of interest, the Court held that the participation of village board trustee in a proceeding to rezone property from residential to commercial, even though trustee was property owner’s mother, did not violate due process.

In determining that the Trustee did not violate the State code of ethics for public officials and employees, the Court analyed WIS. STAT. §§ 19.41-19.59, specifically paragraph 19.59(1)(c) which provides that a local public official is generally barred from taking official actions in which the official or an immediate family member has a substantial financial interest:

Except as otherwise provided in par. (d), no local public official may:

1. Take any official action substantially affecting a matter in which the official, [or] a member of his or her immediate family … has a substantial financial interest.

2. Use his or her office of position in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, [or] one or more members of the official’s immediate family either separately or together[.]

The Court said that standing alone, this paragraph could be read to prevent the Trustee from participating in the proceedings provided that the Whaleys are considered “immediate family members.” However, the Court continued, the paragraph that immediately follows WIS. STAT. § 19.59(c) contains an exception for actions that modify a municipal ordinance, and that exception is applicable here. Paragraph 19.59(1)(d) provides:

Paragraph (c) does not prohibit a local public official from taking any action concerning the lawful payment of salaries of employee benefits or reimbursement of actual and necessary expenses, or prohibit a local public official from taking official action with respect to any proposal to modify a county or municipal ordinance.

As a result, the Court concluded that there was not statutory conflict of interest and Miller’s due process rights were not violated.

Miller v. Zoning Board of Appeals of Village of Lyndon Station, 2022 WL 3650752 (WI App. 8/25/2022)

This post was authored by Christina Conroy, Jacob D. Fuchsberg Touro Law Center

The Valentins, a Black couple of Haitian origin who have lived in the town of Natick, Massachusetts for about 30 years and work as condominium developers, submitted an application for a permit to develop a condominium project and establish affordable housing in their predominately white neighborhood. Following a denial, they brough this action was brought under the Fair Housing Act (FHA) and Massachusetts Civil Rights Act (MCRA) against the town, the town planning board, the town historical commission and the chair of the town historical commission for the violation of their due process and equal protection rights. They allege that the denial of their application was motivated by discrimination on the basis of color, race and national origin. The Complaint also alleged that the Board had not denied a permit for any condominium project for over a decade. Noteably, each of these projects had been sponsored by white applicants. In response, the Town moved to dismiss the action for failure to state a claim.

In early 2019, the Valentins worked with Natick Planning Board to develop the Historic Preservation Bylaw. This bylaw sought to preserve historic properties by permitting redevelopment in the form of condominiums and other multi-family units. In August 2019, they applied for a special permit and site plan approval, pursuant to the new bylaw, to renovate an existing historical structure to allow eleven condominium units, as well as affordable housing units.

Originally, the Planning Board agreed that the project would benefit the historic character of the town, as well as preserve the historic structure, but several neighbors began a campaign against the project and created a website to promote their message. The website featured comments where the Valentins were attacked with racist remarks and accusations of manipulating the new bylaw. In response to the neighborhood opposition, the Board informed the Valentins that a substantial revision of the plans must be done before they approve the project.

After revisions were submitted, a Town Meeting was held where the Board requested assistance from Town Counsel as to whether the revised proposal was authorized under the new bylaw.  Counsel issued an opinion that the revised proposal was indeed authorized under the new bylaw, but the Town Board disregarded the opinion and interpreted the bylaw to curtail the proposed project. The Board suggested the Valentins withdraw their application without prejudice and the Valetins agreed under the guise that they had no further options available.

Two months later the Valentins renewed their application, but the neighbors had begun a new campaign to repeal the new bylaw. The Town Board delayed their decision of the application until the repeal was decided at the Town Meeting. In total, twenty-nine hearings and 14 work-group session were held in regards to the project over a seven-month period.

The Town Board declared two new interpretations of the bylaw in reference to the definition of “historic building” and size limitations for all new construction.  Contrary to the legal opinion of Town Counsel, the Board reduced the gross volume of the proposed project.  Again, the Valentins submitted revised plans which reduced the number of units from eleven to seven which then was compliant under the new bylaw. Chair of the Historic Commission, Stephen Evers, who had been corresponding with the neighbors, then alerted Town Board members that he was concerned that the project was too large. He also joined the campaign to repeal the bylaw. During the following public meeting the Town Board alerted Ms. Valentin that any repeal of the bylaw would not adversely affect any application currently before the Board.  The following month, the Town Board voted to approve the layout of the project, but did not move to discuss or vote on the special permit, as it had done for other developments, and instead scheduled it after the Town Meeting vote to repeal the bylaw. The bylaw was repealed and at the next meeting the Board denied the Valentin’s application solely on the basis of the repeal of the bylaw.

The Court found that the developers stated disparate treatment claim under FHA; further that they sufficiently alleged that town interfered with their rights under FHA; and that they properly stated both an equal protection and substantive due process claim.  However the Court found that the developers failed to state procedural due process claim and that they failed to state MCRA claim. Finally the Court held that the comments by chair of town’s historical commission in opposition to plan by developers were not entitled to protection under First Amendment.

Valentin v. Town of Natick, 2022 WL 4481412 (D. Mass. Sept. 27, 2022).

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