The Rhode Island Ethics Commission opined that it is permissible for the spouse of a deputy zoning official to petition the town council for an amendment to the zoning use regulations to allow the deputy zoning official to open and operate an art studio and gallery on her spouse’s property. Under Rhode Island statute a public official is prohibited, among other things, from participating in any matter in which s/he has an interest and that is in substantial conflict with the proper discharge of their public duties. Further, public officials may not represent themselves nor any other person before an agency of which s/he is a member or by which s/he is employed, and public officials are prohibited from authorizing another person to appear on their behalf in front of an agency of which they are a member or employed. The Commission concluded that since it was the spouse and not the deputy zoning official who wished to appear before the council, and that the zoning official was neither a member of the town council nor employed by it and that further the council did not appoint the zoning official, there would be no prohibition.

RI Ethics Commission, Advisory Opinion No. 2019-22 (March 29, 2019)

Note: This summary appears in the April 2019 Religious Freedom in Focus published by the US Department of Justice and is available at: https://www.justice.gov/crt/religious-freedom-focus-volume-79-april2019#church

On March 29, a federal judge in New York ruled that the Village of Canton must allow the Canton Christian Fellowship Center to begin holding worship services at a property the church purchased in the Village’s commercial district. The U.S. District Court for the Western District of New York held that the church had shown a likelihood of success in its challenge under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) that the Village had treated it less favorably than nonreligious assemblies and institutions. The court also found that the church would be irreparably harmed if not allowed to begin using the property for Sunday worship on March 31 since it had nowhere else to go, and held that issuing an emergency “preliminary injunction” was in the public interest.

The case, Christian Fellowship Centers of New York, Inc. v. Village of Canton, involves a congregation that purchased a building in the Village’s commercial zoning district that had previously been used as a “gentleman’s club” to use as a church. After the Village denied zoning approval, the church sued, alleging that the Village violated RLUIPA by excluding it while allowing various nonreligious assemblies in the same district.

On March 26, the Justice Department filed a Statement of Interest supporting the church’s request for a preliminary injunction. The United States argued that the church had shown a likelihood that it would succeed on its claim that the Village violated RLUIPA’s “equal terms” provision because there is no basis on which to exclude places of worship while allowing fraternal organizations, theaters, social clubs, and other nonreligious assemblies.

Section 2(b)(1) of RLUIPA states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” This provision, according to lead sponsors Senators Edward Kennedy and Orrin Hatch, was included in RLUIPA because “[z]oning codes frequently exclude churches in places where they permit theaters, meetings halls, and other places where large groups of people assemble for secular purposes. . . . Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters and skating rinks—in all sorts of buildings that were permitted when they generated traffic for secular purposes.” (quoted in DOJ’s Report on Enforcement of RLUIPA).

The federal court agreed with the church and the United States.  The court held that since the Village’s commercial zone “permits property owners to host meetings for nearly every purpose – business, governmental, ‘educational,’ ‘fraternal,’ ‘social club,’ ‘charitable,’ or ‘philanthropic,’-except for religious purposes,” the Village has likely violated RLUIPA by excluding the church. The court likewise held that a state law meant to protect churches from the purported offensiveness of being near liquor-serving establishments could not be used as a reason to exclude the church when the church simply wants to be treated the same as other assemblies in the zone as required by federal law.

Christian Fellowship Centers of NY, Inc v Village of Canton, 2019 WL 1428344 (NDNY 3/29/2019)

This post was authored by Amy Lavine, Esq.

The New York State Court of Appeals issued a decision on historic preservation regulations last month in Matter of Save America’s Clocks, Inc. v City of New York, 2019 WL 1385906 (N.Y. 3/28/2019). The case involved a historic building in New York City that was particularly notable for its clock tower and the gallery space that overlooked the large and ornate mechanical clockworks. These parts of the building were designated as an “interior landmark” under the New York City Landmarks Preservation Law, and this required the owner of the building to obtain approval from the Landmarks Preservation Commission (LPC) before for making any changes or modifications that would affect its historic character. When the property was purchased in 2013 by a developer that planned to convert the structure into luxury housing, it accordingly submitted its plans to the LPC and requested a certificate of appropriateness (COA). The LPC then held two public hearings and conducted a site visit, and it ultimately concluded that the developer’s restoration investments would outweigh any negative impacts that might result from the developer’s proposal.

The petitioners, a coalition of opponents to the project, commenced this litigation seeking to overturn the LPC’s decision granting the COA. Their appeal was limited to two issues: whether the LPC had authority to approve changes that would restrict public access to an interior landmark, and whether it was reasonable for the LPC to allow the clock tower to be converted to electric power. The trial court ruled in the petitioners’ favor on both issues and annulled the LPC’s decision. A majority of the Appellate Division affirmed, although one judge wrote a separate dissent. The Court of Appeals also failed to reach a consensus judgment, and one judge wrote separately in dissent, but the majority reversed the decisions made by the trial and appellate courts and instead concluded that the LPC’s decision was rational and entitled to deference.

In affirming the LPC’s decision, the court emphasized that it conducted an extensive deliberative process, including holding several public meetings and encouraging a dialogue between staff members and the property owner. It ultimately based its decision on its findings that “the main lobby, stair hall, clock tower rooms and banking hall w[ould] be fully restored, and the clock mechanism and faces w[ould] be retained, thereby preserving these significant features.” As the court noted, these were all reasonable considerations within the purposes of the landmarks law.

The petitioners claimed more specifically that the COA was unreasonable because it would allow the clock tower to be closed off from public access. They claimed that this was inconsistent with the landmarks law, which defined an “interior landmark” as “[a]n interior, or part thereof, any part of which is thirty years old or older, and which is customarily open or accessible to the public, or to which the public is customarily invited, and which has a special historical or aesthetic interest or value.” But the court was more persuaded by the LPC’s position that “public access is a threshold condition, not an ongoing one.” This was the logical conclusion to draw from the general structure and purposes of the COA procedure, the court explained, as the alteration and even demolition of designated properties was inherently contemplated by the COA process.

The court also concluded that it was reasonable for the LPC to allow the clock to be electrified. It quoted the dissenting Appellate Division opinion on this point, which noted that “the operation of the clock would be modernized by electrification, thereby assuring its continued maintenance for the foreseeable future, and the visibility of exterior clock faces to the public would be enhanced by LED or some other form of modernized lighting, while the clock faces would remain in their original, pristine condition. The COA also makes plain the LPC’s finding that the developer’s plan would ensure that “the clock mechanism and faces will be retained, thereby preserving these significant features.” As with the issue of public access, the court found that these were reasonable considerations and that the LPC’s determination “constituted a rational exercise of [its] discretion based on its unique expertise.”

As a final matter, the court found that the LPC’s determination was not subject to any error of law based on remarks made by the LPC’s attorney at one of the public hearings. The petitioners could not porove that the LPC’s decision was based on these statements, and as the court explained, the LPC’s reasons were actually set forth in the COA and showed that it appropriately “determined the work to be appropriate.”

Save America’s Clocks Inc. v City of New York, 2019 WL 1385906 (NY 3/28/2019).

This post was authored by Amy Lavine, Esq.

The Fairways of Halfmoon operated a golf course with a pro shop, clubhouse, restaurant, bar, and banquet house. In 2017, Fairways applied for an amendment to its site plan and special permit to allow an addition to its bar and restaurant that would be operated as a brewpub. Several nearby property owners, including the petitioners, complained that a brewpub wasn’t a permitted use in the Agriculture-Residence district and that it would have negative effects on the character of the neighborhood. The planning board granted Fairways’ application despite these objections, however, and the petitioners then commenced legal challenges seeking to overturn this decision.

At the outset, the court found that the case was neither moot nor barred by laches. Fairways had argued for dismissal on these grounds, due to the fact that that the brewpub addition was substantially completed by the time the petitioners’ appeal was heard. The court found that substantial completion was insufficient to render the petitioners’ claims moot, however, since Fairways could still be ordered to remove the addition or it could be enjoined from using the space as a brewpub. As to laches, the court found no basis to dismiss the petitioners’ claims because they promptly pursued both administrative and judicial review, and thus there was no evidence of any “neglect in promptly asserting a claim” so as to justify laches.

The court next addressed whether the planning board complied with the State Environmental Quality Review Act. During the application process, the planning board had characterized the’ proposed addition as a type II action not requiring environmental review, but in its resolution approving the project the planning board called it an unlisted action and issued a negative declaration instead. The court noted that this may have been a clerical error, but in any case the planning board sufficiently reviewed the proposal’s environmental impacts and received input from the public and interested agencies. This review determined that the project would have minimal impacts and that the impacts would be limited to the already disturbed areas on the golf course property, and the proposal itself addressed impacts related to parking and waste disposal issues. In short, the court found that the planning board’s negative declaration was reasonable, even if it might have provided a more reasoned elaboration for the basis of its determination.

The petitioners’ claims regarding the zoning ordinance focused on the prohibition of “commercial facilities or amusement parks” in the Agriculture-Residence district. The court noted, however, that the ordinance did permit “[p]rivate or public recreation or playground area[s], golf club[s], country club[s], or other open recreation uses” as special uses, and that Fairways already operated a restaurant, bar, and banquet house under the terms of a special permit it received in the 1990s. Moreover, the zoning code allowed special uses for clubhouse bars that were accessory to golf clubs, and Fairways had indicated that its brewery would be limited to on-site retail sales under the terms of its restaurant brewer’s license. Accordingly, the court found that the planning board acted reasonably in deciding to approve the project, and it was under no obligation to refer the matter to the zoning board for a determination as to whether the brewpub would be a prohibited “commercial facility.”

In addition to their claims against the planning board, the petitioners had also written to the town code enforcement director after Fairways’ application was granted. Their letter asked, as a general matter, whether a brewpub could be built in the Agriculture-Residence district in accordance with the town building code. The code enforcement director explained in response that the building code did not regulate where buildings could be constructed and noted that zoning issues should be addressed to the planning board. This interpretation was later upheld by the zoning board, and the court held on appeal that it was unnecessary to address this aspect of the petitioners’ challenge. The court emphasized that the zoning board’s determination “arose from a vague question” about “a generic brewpub,” and the determination also had no practical impact on the planning board’s prior approval or Fairways’ subsequent request for a building permit. In light of these considerations, the matter was moot and a ruling from the court would have amounted to an improper advisory opinion.

Micklas v Town of Halfmoon Planning Bd., 2019 WL 1389230 (NYAD 3 dept. 3/28/2019).

This post was authored by Amy Lavine, Esq.

In a decision released in March, the Third Department of the New York Appellate Division reversed a zoning denial for a synagogue and Orthodox Jewish educational facility that was proposed in the Town of Wawarsing. Places of worship, the court found, were defined in the ordinance to expressly include not only traditional religious spaces such as churches and synagogues, but also related religious education uses such as school halls and student housing.  Matter of Yeshiva Talmud Torah Ohr Moshe v Zoning Bd. of Appeals of The Town of Wawarsing, 2019 NY Slip Op 02409 (NYAD 3 Dept. 3/28/19).

The proposed development in this case included two synagogues, classroom facilities, on-site residential space for the rabbi, and student dormitory and dining facilities. Although “places of worship” were a permitted use in the zoning district where the property was located, the town’s municipal code officer and the zoning board of appeals determined that the proposed facility would be more akin to a school or a camp, neither of which were permitted uses.

The Third Department reversed the zoning denial on appeal and held that the Yeshiva qualified as a “house of worship” under the plain terms of the zoning code. The town conceded that the synagogues and rabbi’s residence were permissible under the classification for “houses of worship,” and the court pointed out that the express language of the zoning ordinance included the types of school faciilities that made up the rest of the Yeshiva’s proposal. In particular, the ordinance defined a place of worship as the “[u]se of land, buildings, and structures for religious observance, including a church, synagogue, or temple and related on-site facilities such as monasteries, convents, rectories, retreat houses, and fellowship or school halls.” As the court explained, this definition clearly encompassed the Yeshiva’s proposal for an on-site school hall to provide religious education attendant to the site’s use for synagogue worship, and the Yeshiva’s student housing facilities were similar in nature to the examples of permissible “related on-site facilities” provided in the ordinance, such as monasteries and retreat. The court noted in conclusion that “this definition unambiguously includes the living facilities proposed for students of the school, particularly in light of petitioner’s representation that its purpose in constructing the facility is to provide religious instruction at a location with tranquil natural surroundings that facilitate reflection and study — a use that is consistent with a retreat house — and, thus, such facilities are permitted uses under the Town’s zoning ordinance.”

Matter of Yeshiva Talmud Torah Ohr Moshe v Zoning Bd. of Appeals of The Town of Wawarsing, 2019 NY Slip Op 02409 (NYAD 3 Dept. 3/28/19)

This post was authored by Amy Lavine, Esq.

Emmert claimed that the county had advised interested buyers that his property had been set aside for the highway and couldn’t be purchased. But as the court explained, this allegation alone did not show that any “final decision” had actually been made. He also claimed that the county had impeded his attempts to lease one of his parcels by refusing to grant occupancy permits to his potential tenants. This allegation was still insufficient to state a ripe takings claim, however, because he hadn’t sought any other development approvals and thus it wasn’t clear that the county “would deny approval for all uses that would enable [Emmert] to derive economic benefit from the property.” In another allegation, Emmert claimed that the county had “refused to allow any construction” on his property until he completed a comprehensive plan, but the court held that this claim was also unripe because he hadn’t made any attempt to submit a comprehensive plan.

In his final takings challenge, Emmert alleged that the county initially indicated it would buy certain properties but then subsequently declined to go through with these purchases. But the mere “indication” that the county would purchase a property did not amount to a final action, the court explained. Moreover, if the county ultimately decided not to acquire the properties, then there would be no actionable taking for Emmert to challenge.

Emmert v. Clackamas County, 2019 WL 1375615 (9th Cir. 3/22/19).

This post was authored by Amy Lavine, Esq.

A recent appellate division case in New York considered whether a municipal economic development agency could use its eminent domain powers to take property owned by another municipality and used for a bus depot. While the court acknowledged that economic revitalization was a sufficient public purpose to support the use of eminent domain, it nevertheless concluded that the taking had to be rejected because the parcel was already devoted to an existing public use. Matter of City of New York v Yonkers Indus. Dev. Agency, 2019 WL 1272475 (NYAD 2 Dept. 3/20/19).

The property at issue in this case was located in the Yonkers but owned by New York City, which leased it to the Metropolitan Transportation Authority (MTA) for the operation of a bus depot. In March 2017, the Yonkers Industrial Development Agency (IDA) determined that the property was underutilized and adopted a resolution to condemn the parcel so that it could be redeveloped for “productive uses” in accordance with its local urban renewal plan. The resolution only authorized the condemnation of New York City’s fee interest in the property, however, and it excluded the MTA’s leasehold rights.

The court began its analysis by explaining that the “public use” test has been broadly interpreted in New York “as encompassing virtually any project that may confer upon the public a benefit, utility or advantage.” Under this test, the New York courts have accepted condemnations intended to boost the local economy and create jobs, as well as for more traditional public uses like infrastructure and utilities. To bring a successful challenge against a proposed municipal condemnation, the court explained, the property owner “has the burden of establishing that the determination does not rationally relate to a conceivable public purpose.”

Applying these standards to the facts of this case, the court concluded that New York City failed to meet its burden of showing that the IDA’s proposed condemnation had no conceivable public purpose. As the court noted, the taking was intended for the purposes of urban renewal and to increase the economic viability of the City of Yonkers, and these were sufficient and legitimate public purposes to support the use eminent domain.

Regardless of the public use issue, however, the court agreed with New York City that the condemnation was prohibited under the doctrine of prior public use. This rule generally holds that land already devoted to a public use cannot be taken by eminent domain, except where there is specific legislative authority for the taking or where the new use would not substantially interfere with the existing public use. The IDA conceded that the MTA’s bus depot was a preexisting public use and that there was no legislative authorization for the condemnation, so the only issue was whether the proposed redevelopment taking would materially interfere with the bus depot. The court found that it would, and that the IDA’s decision to exclude the MTA’s leasehold interest from the condemnation did not change this result. As the court explained, the taking was premised  on the IDA’s determination that the property was “underutilized” and nothing in the resolution or urban renewal plan suggested that continued operation of a bus depot would be part of the property’s redevelopment. Various comments at the public hearing also provided evidence that the IDAconsidered the bus depot to be an “undesirable” use of the property for purposes of redevelopment, all of which confirmed that the condemnation and new public use would materially interfere with the existing bus depot public use.

Matter of City of New York v Yonkers Indus. Dev. Agency, 2019 WL 1272475 (NYAD 2 Dept. 3/20/19)

The following is sponsored by the American Planning Association’s Planning Law Division:

Webcast — How Land Use and Natural Resource Regulations are Shaping the Legal Cannabis Industry

Thursday, March 21, 2019 | 2:00–3:30 p.m. ET
CM | 1.50 | Law
CLE through Illinois State Bar
This webinar will explore how various land use and natural resource regulations shape the development of the legal cannabis industry. The scope of the conversation will range from regulatory options municipalities may consider as the legal cannabis industry develops to how individual businesses are fostered or stifled as a result of certain regulations. One goal of this webinar is to help practitioners identify key cannabis industry issues they should consider in working with either government officials or business owners.
Speakers include Erin Lapeyrolerie, PLD’s 2018-19 Curtin Fellow, Karla Chaffee, Esq., Counsel for Robinson & Cole LLP in Boston, Sunshine Lencho, Esq., Senior Associate at Hinman & Carmichael LLP in San Francisco, Joanna Hossack, Esq., Associate at Clark Neubert LLP in Sacramento and San Francisco, and Christina Sava, Managing Attorney at Anthony Law Group in Oakland.

To register click here: https://www.planning.org/events/eventsingle/9170641/

This post was authored by Matthew Loeser, Esq.

Pasco County passed Ordinance No. 11-15 with the goal of preserving, protecting, and providing for “the dedication and/or acquisition of right-of-way and transportation corridors that are necessary to provide future transportation facilities and facility improvements to meet the needs of projected growth.” Under this Ordinance, when an entity seeks a development permit for land that adjoins a transportation corridor the County requires a right-of-way dedication as a “condition of approval.” This “right-of-way dedication” is a dedication by the entity to the County of lands “within the development site or expanded development site which are within the transportation corridor.” In 2006, Hillcrest applied to the County to develop its property with a 83,000 square-foot retail shopping center and three commercial spaces. The County notified Hillcrest that pursuant to the Ordinance, it would require the dedication of 140 feet for the future development of State Road 52. In response, Hillcrest submitted a proposed site plan that had no improvement inside the 140-foot area, and reserved its rights to object to the dedication of any land without compensation. The County then approved the preliminary site plan.

After failing to reach an agreement concerning the dedication, Hillcrest filed a seventeen-count complaint in the District Court. The District Court granted summary judgment for Hillcrest on the facial substantive-due-process claim, but denied summary judgment on the as-applied claim. On appeal, the court vacated the District Court’s holding, and found that the claim was barred by the statute of limitations. In 2014, prior to the court issuing its decision in the first appeal, the parties entered into a partial settlement agreement. Pursuant to this agreement, in exchange for a 100-foot strip of Hillcrest’s property, the County would compensate Hillcrest $4.7 million. In exchange Hillcrest forfeited nearly all of its claims against the County, including its takings claim, but expressly reserved its as-applied substantive-due-process claim.

The court first noted that Hillcrest did not allege denial of any fundamental right in its substantive due-process claim. Additionally, Hillcrest did not assert an enumerated right allegedly infringed by an unconstitutional condition; instead, Hillcrest sued under substantive due process, which was unenumerated. In doing so, Hillcrest relied on Kentner v. City of Sanibel, 750 F.3d 1274, 1279−80 (11th Cir. 2014), which held “state-created rights are infringed by a ‘legislative act,’ the substantive component of the Due Process Clause generally protects that person from arbitrary and irrational government action.” Here, however, as Hillcrest challenged the application of the Ordinance, rather than anything inherent in its design, the County’s actions were characterized as executive, not legislative.

The court held that an as-applied challenge to a land-use statute never gives rise to a substantive-due-process claim when the sole basis for the challenge is allegedly arbitrary behavior that does not infringe on a fundamental right. Accordingly, regardless of how arbitrarily or irrationally the County allegedly acted with respect to Hillcrest, Hillcrest had no substantive-due-process claim. The District Court’s grant of summary judgment was therefore reversed.

Hillcrest Property, LLP v. Pasco County, 2019 WL 580259 (11th Cir CA 2/13/2019)

Posted by: Patricia Salkin | February 16, 2019

NYC Makes Zoning Resolution Available On-Line

The following is from CityLand:

The City’s zoning laws are now instantly accessible to New Yorkers. On February 6, 2019, Department of City Planning Director Marisa Lago announced the release of the City’s digital Zoning Resolution online platform. The online platform will serve as a green replacement for the 1,570-page physical copy of the Resolution, which will no longer be printed to save money, increase government transparency, and fight climate change. It will also be a more interactive replacement for the static PDFs currently on the City Planning website.

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