This post was authored by Matthew Loeser, Esq.

In 2015, Plaintiffs TAL Properties of Pomona, LLC, and Avrohom Manes purchased a residential home. In January 2016, Plaintiffs made repairs to the property, and Village Building Inspector Louis Zummo inspected it and advised Plaintiffs that the repairs were done in accordance with applicable building codes and regulations. Despite Plaintiffs’ compliance, and despite Zummo’s comments that a certificate of occupancy (“CO”) would be issued, Defendants Yagel and Ulman directed Zummo to not issue the CO. Yagel, acting by and through Ulman, claimed that a prior owner of the Property owed the Village $6,379.34, and demanded payment from Plaintiffs in exchange for the CO. Additionally, following the sale of the property, the Village allegedly threatened to withdraw the CO unless Plaintiffs signed an agreement acknowledging that the road accessing the property was not a Village road and that maintenance of the road was the sole responsibility of the property owner. Plaintiffs further alleged that the Village did not require other property owners to sign similar agreements.

Plaintiffs next contended that evidence newly-revealed in the Human Rights Report, revealed evidence of discrimination against Jewish residents of Pomona that existed at the time their SAC was dismissed. Defendants did not dispute this assertion; however, despite all of the newly discovered evidence that Plaintiffs offered, the court found they failed to identify any similarly situated comparators or any substantial burdens on their free exercise of religion. Accordingly, judge CATHY SEIBEL denied Plaintiffs’ motion to vacate her previous judgment or reopen the case under Rule 60(b)(2).

Plaintiffs next argued that the court should grant them relief from judgment under Rule 60(b)(3) based on Defendants’ failure to provide public land and building records in response to Plaintiffs’ FOIL requests, which they claimed prevented them from gathering information on potential comparators. The court found there was no failure to provide discovery here, however, as the case was dismissed before any discovery occurred. While the court noted it was wrong for Defendants to wait until the fifth day to respond to FOIL requests that they could have fulfilled on the spot, that short delay did not substantially imped Plaintiffs’ ability to present their case. Accordingly, Plaintiffs’ motion to vacate judgment and reopen the case was denied.

TAL Properties of Pomona v Village of Pomona, 2019 WL 3287983 (SDNY 7/22/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiff owned property in Oklahoma City, which had been zoned agricultural, or “AA”, and had been zoned AA since Plaintiff purchased the property in 2003. Plaintiff used his property for agricultural purposes, and his single-family rural homestead was also located on his property. Plaintiff made multiple attempts to rezone his property to a zoning classification other than AA, but each request had been denied. In response to the denial of his applications to rezone his property, Plaintiff painted signs on farm equipment and other objects located on his property. These signs included messages that were critical of Plaintiff’s neighbors, the City government, and City officials, including City Councilman Lawrence McAtee and Defendant Locke.

In 2012, Defendant Smith inspected Plaintiff’s property and observed that Plaintiff had noncommercial, expressive signs in excess of the limits provided for in § 3-100(6) on his property. As a result, Plaintiff was issued four municipal court citations for violating the ordinance. a criminal trial was held, and Plaintiff was convicted of all four citations and was fined $400 plus costs for each case. Plaintiff appealed the decision to the Oklahoma Court of Criminal Appeals, reversed Plaintiff’s convictions and remanded the case to the Oklahoma City Municipal Court to dismiss based upon Defendant City’s failure to meet its burden of proof regarding Plaintiff’s property being in a “residential area.” Following the reversal of his convictions, Plaintiff again began displaying expressive signs on his property. In 2014, Plaintiff filed the instant action, alleging that Defendants violated his First Amendment free speech rights as a result of the enforcement of § 3-100(6), retaliated against him for exercising his free speech rights by prosecuting him under § 3-100(6), and selectively enforced the ordinance against him in violation of the Equal Protection Clause of the Fourteenth Amendment.

At the outset, the court noted that even assuming Plaintiff had shown a constitutional violation and that the law was clearly established at the time the violation occurred, Defendants Locke and Smith demonstrated extraordinary circumstances, specifically reliance on the advice of counsel and on the City’s Sign Code, and were therefore entitled to qualified immunity.

Plaintiff first asserted that the City’s Sign was facially unconstitutional. The record reflected that while the City’s Sign Code generally required a permit for signs; the Sign Code, allowed for certain exceptions to that requirement. As the City’s Sign Code imposed content-based restrictions on speech, the court found that Sign Code would violate the First Amendment unless the provisions survived strict scrutiny, which required Defendant City to prove that the restrictions furthered a compelling interest and were narrowly tailored to achieve that interest. Defendant City claimed the purpose of the Sign Code was to increase safety, lessen congestion on the streets, conserve residential values, provide for improved community appearance, and encourage the most appropriate use of land. The court found, however, that a municipality’s asserted interests in traffic safety and aesthetics, while significant, have never been held to be compelling. Furthermore, Defendant City had not shown that limiting certain categories of signs was necessary to eliminate threats to traffic safety, to lessen congestion on the streets, to improve the aesthetics of the City, or to encourage the most appropriate use of land, but that limiting other categories of signs was not. For the same reasons, the court found the City’s Sign Code violated the Fourteenth Amendment and was unconstitutional.

The court next found that the prospect of criminal prosecution and/or a daily fine of $400 would likely chill a person of ordinary firmness from keeping his noncommercial, expressive signs up on his property. Additionally, the record reflected that Plaintiff presented evidence, which when viewed in his favor, supported a finding that Defendant City’s citation and prosecution of Plaintiff for his signs in 2012 were substantially motivated as a response to the messages contained on Plaintiff’s signs. Specifically, Plaintiff submitted evidence that indicated that due of the content of the signs, Defendant City had been attempting to get rid of Plaintiff’s signs for years and only in 2012 did the City, and particularly the Municipal Counselor’s Office, find a way to accomplish that through the use of § 3-100(6). Accordingly, the court held that Defendant City was not entitled to summary judgment as to Plaintiff’s First Amendment retaliation claim.

As to the state constitutional claims, the court noted that pursuant to the Oklahoma Governmental Tort Claims Act (“OGTCA”), “a claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.” Moreover, the Oklahoma Supreme Court held that notice is a jurisdictional prerequisite to bringing a claim under the OGTCA and that failure to present the required notice “results in a permanent bar of any action derivative of the tort claim.” Since Plaintiff failed to show that he presented the required notice under the OGTCA, the court found that Plaintiff’s Oklahoma Constitution claim was barred.

Knutson v City of Oklahoma City, 2019 WL 3291574 (WD OK 7/22/2019)

This post was authored by Matthew Loeser, Esq.

An interested party commenced an article 78 proceeding seeking writ of mandamus to compel the New York City Department of Buildings to issue a final notice of violation of city administrative code arising from building construction. The Supreme Court, New York County, granted the petition to compel respondent Department of Buildings (“DOB”) to issue a notice of violation to the past and present owners of intervenor Sofitel New York Hotel to the extent of directing DOB to issue a final determination.

The court noted at the outset that the DOB’s determination not to issue a notice of violation to the past and present owners of the Sofitel Hotel for failure to comply with Administrative Code of City of N.Y. § 27–860 following its own inspection involved the exercise of discretion, rather than the performance of a mandatory, non-discretionary act. As such, a writ of mandamus to compel was not available as a remedy. The court therefore found that petitioner was also not entitled to a writ of mandamus compelling DOB to issue a final determination on petitioner’s request, which would afford petitioner further administrative review by the New York City Board of Standards and Appeals, as it failed to identify any authority establishing that it had a clear legal right for the same.

The court lastly noted that assuming that DOB’s letter to petitioners was a final determination permitting article 78 review, the fact that the determination involved the exercise of discretion did not mean that it was unreviewable under CPLR 7803(3). Notwithstanding this, the court found that petitioner failed to establish that DOB’s determination not to issue a violation was arbitrary and capricious or constituted an abuse of discretion.

New York City Yacht Club v. New York City Department of Buildings, 172 A.D.3d 606 (1 Dept. 5/28/2019)

This post was authored by Matthew Loeser, Esq,

Plaintiff New Horizons Rehabilitation, Inc. was an Indiana not-for-profit corporation that assisted persons who have intellectual and developmental disabilities in the southeastern Indiana counties of Ripley, Dearborn, Ohio, Franklin, Decatur, and Switzerland. No more than four adults were allowed to live in a home full time, and they were assisted by New Horizons staff. Before a resident moved into a New Horizon home, a contractor hired by the Bureau of Developmental Disabilities was required to complete an inspection check list to make sure the overall environmental conditions were satisfactory. In 2013, New Horizons was donated an unimproved piece of real estate in Lawrenceburg, Indiana, on the condition that it would build a supported living home for adults with intellectual and developmental disabilities on the property. While New Horizons was attempting to negotiate with Lawrenceburg, its Executive Director, Marie Dausch, was informed that the planned home had to be approved by DHS because it was deemed to be a commercial building.

In January 2017, New Horizons settled its lawsuit with the city of Lawrenceburg. Pursuant to that agreement, Lawrenceburg would treat the proposed New Horizons home the same way it would treat any single-family dwelling for zoning purposes. In February 2017, Executive Director of the Indiana Department of Homeland Security (“DHS”) informed Lawrenceburg officials that the planned home was a Class 1 structure that had to be submitted to DHS for review and release. New Horizons applied for a variance from the Fire Prevention and Building Safety Commission (“Commission”) so that it would not be required to install a commercial fire suppression system – as required in Class 1 structures – in the proposed home. The Commission denied the request to obtain a variance because the cost of the fire-suppression system would have to be over 10% of total building costs, and here the cost was about 5% of total building costs. Following that denial New Horizons makes claims under the Rehabilitation Act, 29 U.S.C. § 794; the Fair Housing Amendments Act, 42 U.S.C. § 3604(f); and the Americans with Disabilities Act, 42 U.S.C. §12132.

The court first noted that the FHAA requires accommodation if such accommodation is reasonable, and is necessary to afford a handicapped person the equal opportunity to use and enjoy a dwelling. New Horizons contended that “DHS denied a reasonable accommodation here by denying the variance request that would have allowed the home to open without a commercial fire suppression system.” The court found that at the heart of this claim was whether or not New Horizons’ residents should be forced to shoulder the cost of a sprinkler system when they would not have to bear that cost if they were able to continue living with their families. The court found this was tantamount to telling a disabled person that he or she should go live in an apartment building or long-term care facility because the law makes that easier on them, was the very discrimination New Horizons complained of. Moreover, the court reasoned the FHAA would be toothless if a defendant could avoid liability by pointing to the other housing options a plaintiff had in different types of housing or different areas of the city. Accordingly, the court granted New Horizons’ Motion for Summary Judgment as to its reasonable accommodation claim under the ADA, FHAA, and Rehabilitation Act.

The court next analyzed the disparate treatment claims under the ADA, FHAA, and Rehabilitation Act, which involved “a showing of intentional discrimination, provable via either direct or circumstantial evidence.” New Horizons claimed that the “commercial or non-commercial” distinction between Class 1 and Class 2 structures was “both illusory and in violation of the above statutes.” Specifically, family homes with three or more foster children are Class 2 structures, but New Horizons’ proposed supported living facility for three intellectually or developmentally disabled adults was treated as a Class 1 structure. The court found that without being held to a strict definition of the word “tenant,” DHS would be able to treat foster children differently from adults with intellectual and developmental disabilities and offer no basis for the distinction other than the arbitrary declaration that New Horizons’ clients were tenants, but foster children were not. As such, court granted New Horizons’ Motion for Summary Judgment as to its claim of disparate treatment under the ADA, FHAA, and Rehabilitation Act.

New Horizons further claimed there was no rational basis supporting Indiana’s zoning laws as applied to its clients. The court found that the rational basis of “safety” that Defendants offered for the zoning scheme was sufficient to defeat an Equal Protection challenge. Although New Horizons presented a compelling argument that its residents were better-prepared than the average family for safety hazards such as fires, it failed to show that there was any rational reason for code. Accordingly, New Horizons’ Motion for Summary Judgment was denied as to its Equal Protection claim, and Defendant’s Cross-Motion for Summary Judgment was granted. For the aforementioned reasons, the court granted New Horizons’ motion for a permanent injunction, and DHS was permanently enjoined from enforcing the requirements of a Class 1 structure on New Horizons’ Lawrenceburg, Indiana home indefinitely.

Lastly, while the Defendants argued they could not be liable for damages because they had sovereign immunity under the Eleventh Amendment against New Horizons’ ADA and FHAA claims, the court found Defendants would still owe damages under the Rehabilitation Act. Specifically, the court noted that Congress expressly made its intent clear that a state is not immune for a violation of Section 504 of the Rehabilitation Act of 1973 if a state program receives federal funding. Additionally, New Horizons contended that it was not a for-profit corporation, and any money damages it received would directly benefit its clients, who were aggrieved by the State’s failure to grant a variance in New Horizons’ favor. the Court therefored awards damages in favor of New Horizons in the amount of $30,400.00.

New Horizons Rehabilitation, Inc. v State of Indiana, 2019 WL 3253706 (SD IN 7/19/2019)

This post was authored by Matthew Loeser, Esq.

Appellant CKC Holdings, L.L.C. applied for a special use permit to build a self-storage facility on approximately 30 acres of land in unincorporated Platte County. The Platte County Board of Zoning Adjustment (“BZA”) denied CKC’s application. CKC then petitioned the Circuit Court of Platte County for judicial review. The circuit court affirmed the BZA’s decision, and CKC appealed.

On appeal CKC argued that the BZA decision was not based on substantial and competent evidence and was against the weight of the evidence; that the BZA issued inadequate factual findings; and that one of the BZA’s members should have been disqualified due to bias. The court affirmed, but because a published opinion would have no precedential value, the court provided the parties an unpublished memorandum, setting forth the reasons for this order.

State v. Board of Zoning Adjustment of Platt County, 2019 WL 3416994 (MO App. 7/30/2019)

This post was authored by Matthew Loeser, Esq.

Respondent Insource East Properties, Inc., as contract vendee for two adjoining and undeveloped parcels of real property in the Town of Southampton, Lots 6 and 32, sought an area variance that would allow it to merge the parcels and construct one single-family dwelling thereon. The parcels were landlocked lots that only had access to Old Sag Harbor Road by way of a 50–foot–wide deeded right-of-way, which had been in existence since 1949, over neighboring properties. The petitioner, a neighbor whose adjoining property was situated to the north of the subject parcels, opposed the application for an area variance on the grounds that the new construction would have a negative impact upon and interfere with her use and enjoyment of her own property and that the hardship was self-created. Following a hearing at which the petitioner testified, the Town of Southampton Zoning Board of Appeals granted the application for an area variance to allow zero feet of road frontage for the subject parcels. Following this, the petitioner commenced this proceeding pursuant to CPLR article 78 to annul the determination. The Supreme Court denied the petition and dismissed the proceeding, and the petitioner appealed.

The record reflected that at the time of the area variance application the parcels were located in the CR–200 residential zoning district, which required a minimum lot area of 200,000 square feet and a lot width of 200 feet. In 1957, when the Town Code was enacted, the parcels had been designated as being in a C residential zoning district, which required a minimum lot area of 15,000 square feet and a lot width of 100 feet to be conforming. As Lot 32 had a lot area of approximately 12,495 square feet, it was found to be nonconforming upon the enactment of the Town’s zoning ordinance, but had been a “lot” prior to that. The record further indicated that this zoning requirement was changed in 1972 so that the parcels were considered to be in an R–40 zoning district, which required a minimum lot area of 40,000 square feet and a lot of width of 150 feet to be conforming. The court found that Lot 6 remained in conformance with the Town Code despite this change and would have been considered a “lot.” In 1983, the area was upzoned to its present CR–200 designation. Accordingly, Lot 6, which was comprised of 54,042 square feet, was rendered nonconforming at that time, thus changing its status from a “lot” to a nonconforming lot.

The court next noted that the ZBA had the power to grant area variances to those parcels and was specifically empowered to grant a variance “modifying the yard requirements of a nonconforming lot which qualified under the terms of § 330–115D as to ownership, but where compliance with the dimensional provisions of this chapter is not feasible”. The court found that upon merger of the two parcels as proposed by Insource, the new merged parcel would remain nonconforming “in the same respect” in that it would continue to be nonconforming as to lot width and lot area. It further determined that the ZBA’s determination to grant the application for an area variance to allow zero feet of road frontage for the subject parcels had a rational basis. Here, the evidence before the ZBA supported its findings that the requested relief would not: produce an undesirable change in the character of the neighborhood, have an adverse impact on the physical or environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. The court this determination would apply even if the proposed variance was arguably substantial and the alleged difficulty was self-created.

Lastly, the court held that the ZBA rationally concluded that the benefit sought, specifically a variance that would enable the construction of a single-family dwelling on a lot without road frontage, could not be achieved by a feasible alternative method which would not require an area variance. Accordingly, the Supreme Court’s determination that the ZBA’s decision granting the application for an area variance was not irrational or arbitrary and capricious, was upheld.

Nowak v. Town of Southampton, 2019 WL 3436629 (NYAD 2 Dept. 7/31/2019)

The United States Court of Appeals for the District of Columbia Circuit concluded that a Federal Communications Commission (FCC) deregulation order was arbitrary and capricious because it eliminated historic preservation review under the National Historic Preservation Act (NHPA), including tribal consultation and environmental review under the National Environmental Policy Act (NEPA), for construction of small wireless facilities or small cell radio towers transmitting a cellular signal in an effort to expedite the rollout of the next generation of wireless service known as 5G. The Court of Appeals concluded that the FCC failed to justify its determination that the public interest did not require review of the deployment of hundreds of thousands of small cells.  The Court said, ” In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction.” Further, the Court held that the FCC inadequately addressed the harms of deregulation and the agency’s portrayal of deregulatory harms as negligible, the FCC’s order was inconsistent with its longstanding policy, and the FCC did not satisfactorily consider the benefits of review.

United Keetoowah Band of Cherokee Indians in Oklahoma v. Federal Communications Commission, 2019 WL 3756373 (DC Cir. CA 8/9/2019)

This post was authored by Matthew Loeser, Esq,

Vineyard Oil and Gas Company (“Objector”), a limited liability company that operated within the Commonwealth of Pennsylvania, constructed, owned, and managed wireless communications facilities in Pennsylvania and elsewhere. Objector owned real property located at 10299 West Main Street, North East, Pennsylvania, which was directly adjacent to the north of the property owned by Jacob R. Jones located at 10325 West Main Street, North East, Pennsylvania. In 2016, Jones and Applicant entered into an Option andTelecommunications Facility Lease Agreement. Pursuant to the Agreement, Jones leased a portion of the property to Applicant for the purpose of erecting and operating a wireless communications facility on it. Applicant submitted the Application to the ZHB, requesting a variance from the Ordinance’s setback requirements and for the construction of a freestanding antenna support structure in lieu of a monopole support structure. The ZHB unanimously voted in favor of granting the Application, and objector appealed to the trial court. which affirmed the ZHB’s decision.

On appeal, Objector first contended that Applicant’s evidence was insufficient to satisfy the requirements under the Pennsylvania Municipalities Planning Code (“MPC”) and the Ordinance for a dimensional variance. The court found that although the ZHB concluded that the stream bisecting the Property and the floodplain conditions constituted an unnecessary hardship, it failed to consider the repair shop and the salvage yard for which the property was currently being productively used. Since Jones was already making reasonable use of the property, the court held that Applicant had not established an unnecessary hardship that entitled it to the variances it requested.

Objector next argued that Applicant’s evidence was insufficient to satisfy the Ordinance requirements for a special exception to erect a self-supporting cell tower structure in lieu of a monopole structure for cell tower antennas. Here, the testimony offered in support was deemed insufficient to support the conclusions that: “the cost of erecting a monopole would preclude the provision of adequate service to the public, or erection of a safe antenna support structure requires a type other than a monopole” and/or “the proposed antenna structure would have the least practical adverse visual impact on the environment and closely resembles a monopole.” Since the court found Applicant failed to establish the elements necessary for the ZHB to approve a self-supporting structure, it held the ZHB abused its discretion by determining that Applicant satisfied the requirements for the special exception.

Lastly, Applicant’s relevant evidence only established that a service coverage gap existed and that Applicant’s proposed service would fill that gap. The court found that evidence was insufficient to support a finding that the proposed service would fill an existing significant gap “in the ability of remote users to access the national telephone network” and/or that it was “the least intrusive on the values that the denial sought to serve.” Accordingly, the court held that the TCA did not support the grant of the dimensional variance and special exception. Thus, the trial court’s order was reversed.

Vineyard Oil and Gas Company v. North East Township Zoning Hearing Board, 2019 WL 3432069 (PA Cmwlth 7/31/2019)

This post was authored by Matthew Loeser, Esq.

Since 2005, the Township and Turbotville Borough participated as a joint planning commission for zoning and land use planning. In 2013, the Board notified Turbotville that it would withdraw from the Joint Commission effective January 1, 2015. The Board subsequently hired consultant KPI Engineering (“KPI”) to draft a new zoning ordinance exclusively for the Township. The Township then formed the Zoning Ordinance Committee (“ZOC”), which consisted of Board members, Joint Commission members and Township residents, to provide KPI input during the proposed ordinance drafting process. ZOC met several times in early-to mid-2014 to review KPI’s proposed ordinance, which KPI eventually presented to the Board. The Board adopted the Ordinance, and James Yannaccone filed a complaint in the trial court against the Board requesting that the Ordinance be declared void. In this case, Yannaccone appealled from the Northumberland County Common Pleas Court’s order declaring the Lewis Township Board of Supervisors’ Ordinance No. 2014-7 valid and in full force and effect.

On appeal, Yannaccone first contended that the trial court erred by recognizing ZOC as a valid planning agency. While Section 201 of the MPC set forth that planning commissions and/or planning departments shall be created “by ordinance,” it was silent with respect to planning committees. Section 201 of the MPC only stated that the Board “shall enlist a planning committee to prepare a proposed ordinance for the Board’s review and adoption”. The record also reflected that ZOC was made up of 10 people: the three Board members, Joint Commission members, and Township residents. Although Section 202 of the MPC set forth that planning commissions “shall have not … more than nine members,” the court found that the MPC did not similarly limit planning committees.

Yannaccone next claimed that the trial court erred by holding that the Board’s monthly meetings strictly complied with the requirement in Section 607(b) of the MPC that “the planning agency shall hold at least one public meeting pursuant to public notice”. The trial court held that the Board substantially complied with the statutory requirements and the public was given the opportunity to participate, as the Board advertised and conducted its monthly public meetings at which ZOC was discussed, at least one ZOC meeting was announced at an open Board meeting, and the Board’s meeting minutes were available to the public. Despite that the Board complied with the notice and hearing requirements of Section 608 of the MPC, however, Section 607(b) of the MPC explicitly stated that “the planning agency” is the entity mandated by Section 607(b) of the MPC to hold at least one public meeting after public notice. While the record before the trial court established that ZOC meetings were public, they were neither published in a newspaper of general circulation nor posted as Section 703 of the Sunshine Act mandated. Since none of ZOC’s meetings took place after “public notice,” the court held that the Board did not substantially comply with Section 607(b) of the MPC, and the trial court erred by finding otherwise. Furthermore, the Board’s failure to issue public notice of at least one of ZOC’s public meetings was found to be a fatal flaw that invalidated the Ordinance’s enactment and rendered it void from inception.        

Lastly, since this case involved an ordinance validity challenge brought in accordance with Section 1002-A(b) of the MPC, rather than a land use appeal filed pursuant to Section 1002-A(a) of the MPC, the court found that Section 1002.1-A of the MPC was inapplicable. Moreover, the court held that even had this matter involved a land use appeal, because Yannaccone filed his validity challenge within 30 days, the strict compliance standards in Section 1002.1-A(d)(1) of the MPC would apply, rather than the sufficient notice and direct affect provisions in Section 1002.1-A(d)(1) of the MPC. Accordingly, the trial court erred by relying on Section 1002.1-A of the MPC in reaching its conclusion.

Yannaccone v. Lewis Township Board of Supervisors, 2019 WL 3755213 (PA Cmmwlth 8/9/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiff owned a 4.2-acre parcel in Rye, which had been part of a larger parcel owned by the Green family in the early 1990s. The Green homestead was still standing, and the plaintiff resided there. When the Greens still owned the property, one of the Green brothers built a tool shed: a small, one-story structure with no chimney or heating unit. In the mid-1960s, it was improved by the addition of a tiny kitchen, bathroom, dormered second half-story, electrical service, a connection to a water well, and an underground holding tank for waste water. The tool shed/cabin was not used as a residence at any time before the Town adopted its first zoning ordinance in 1953, which prohibited more than one dwelling per lot.

The record reflected that the tool shed/cabin was next used as a dwelling in 1991 when the then owners rented it out as a second dwelling. The Town building inspector issued a cease and desist letter to those owners, explaining that using the tool shed/cabin as a second dwelling violated the ordinance. The letter stated that the tool shed/cabin “is not, nor has it ever been, a legal dwelling,” and, thus, “could not be legally occupied.” Although the water district disconnected the tool shed/cabin from the water line, the owners reconnected it, ignored the cease and desist letter, and rented out the cabin to multiple tenants from 1991 to 2000, when they sold the parcel to the plaintiff’s immediate predecessor-in-title, Robert MacLeod. In 2003, one of MacLeod’s neighbors complained that MacLeod had installed a mailbox for the tool shed/cabin. The building inspector sent a letter to the complaining neighbor dated July 8, 2003, which stated the second dwelling was a legal use and may continue indefinitely. In 2005, MacLeod obtained an opinion letter from an attorney regarding the lawfulness of using the tool shed/cabin as a second dwelling. The trial court inferred from the attorney’s letter that neither MacLeod nor his attorney knew about the July 8, 2003 letter. MacLeod sold the parcel to the plaintiff in 2006. This case arose after the plaintiff appealed the building inspector’s 2016 notice of violation to the Town’s zoning board of adjustment (ZBA”), which upheld it. the trial court upheld the ZBA’s decisions and ruled in favor of the Town on the plaintiff’s municipal estoppel claim.

On appeal, the plaintiff’s main contention was that he “carried out his own due diligence and inspected the property and reviewed the property file,” which contained the July 8, 2003 letter, “as part of his preparation to purchase said property.” The court noted, however, that there were no documents in the appellate record demonstrating that plaintiff saw or was aware of the July 8, 2003 letter before he purchased the subject property in 2006. Moreover, in plaintiff’s August 11, 2016 email to his counsel, the plaintiff stated that he read the July 8, 2003 letter “last week.” As such, plaintiff could not be said to have relied on that letter. Accordingly, the court upheld the trial court’s determination that the doctrine of municipal estoppel did not bar the Town from enforcing its zoning regulations and building code.

Manuel Barba v. Town of Rye, 2019 WL 2743416 (NH 6/24/2019)

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