Hogan filed an application requesting that his property be rezoned from “Old Capital Green” to “General Commercial District” for the purpose of allowing the operation of a used auto sales business on the premises. The Jackson City Council passed an ordinance rezoning this property. Ben Allen, individually and in his capacity as President of Downtown Jackson Partners, Inc., filed a bill of exceptions in the Circuit Court of Hinds County, which sought a reversal of the City Council’s decision to rezone the property. The circuit court reversed the Jackson City Council’s decision, and the City appealed.
On appeal, the City contended that the circuit court lacked subject matter jurisdiction because “no proper and signed” bill of exceptions was filed as required by Section 11–51–75, and that Allen’s failure to file a valid bill of exceptions deprived the circuit court of subject matter jurisdiction. After reviewing the relevant legislative history, the court found that the Legislature never intended the signature requirement to be a jurisdictional prerequisite. Thus, the court concluded that although the bill of exceptions was a jurisdictional requirement for the circuit court to hear an appeal, imperfections in it speak to the adequacy of the record to decide the excepted issues rather than to the authority of the court to hear the appeal.
The City next alleged that Allen, as President of Downtown Jackson Partners, lacked standing to bring an appeal because he was not a “person aggrieved”, since Downtown Jackson Partners did not own, or have an interest in, property affected by the rezoning of the subject property. The record indicated that the subject property was located in the Old Capitol Green Mixed Use District, and under Subsection 708.03.04 of the City’s Zoning Ordinance, Downtown Jackson Partners had a direct role in regulating the development of the Old Capitol Green Mixed Use District. Allen claimed that Downtown Jackson Partners would be negatively impacted by the rezoning decision because the subject property would no longer be classified as Old Capitol Green Mixed Use District. As such, Downtown Jackson Partners would no longer be able to ensure that the property adhered to the Old Capitol Green Sustainable Design Guidelines and the Old Capitol Green Master Plan as provided in Subsection 708.03.04. The court therefore found that the circuit court did not abuse its discretion in finding that Allen, in his capacity as President of Downtown Jackson Partners, had standing.
Finally, the City argued that the property owner and lessor, who requested the rezoning, had a basic due process right to be joined or at least to have sufficient notice of the appeal. However, since the City failed to raise the due process argument in the circuit court, it was barred from raising the argument for the first time on appeal. Nevertheless, the court found this argument would still fail as the record indicated no effort on the City’s behalf to ensure that the property owner and lessor received notice of Allen’s appeal to the circuit court. Accordingly, the court affirmed the circuit court’s order reversing the City Council’s decision.
City of Jackson v Allen, 2018 WL 654055 (MS 2/1/2018)

This post was authored by Matthew Loeser, Esq.

At issue in this case was a property owned by Cajun 411, LLC., which formerly housed a strip club and a novelty shop that sold “adult merchandise.” Cajun 411 wanted to open a “family style” restaurant at this location and add a third floor rooftop with seating to the building. The City of New Orleans’s Comprehensive Zoning Ordinances allowed construction up to fifty feet in the French Quarter but the Vieux Carré Commission (VCC) Guidelines stated that rooftop additions on buildings less than three full stories in height were not recommended, and required the review of the VCC and the approval of the City Council. The VCC made a decision to “defer” its application to the New Orleans City Council, and Cajun 411 appealed. At the City Council’s meeting, it heard and granted Cajun 411’s appeal of the VCC’s failure to act on Cajun 411’s application. The Vieux Carré Commission Foundation (VCCF) filed this action seeking injunctive relief pursuant to La. R.S. 25:746(D). A TRO was issued by the district court enjoining Cajun 411, the City, and the City Council from taking any further action regarding a permit for construction of the third floor addition, which was then followed by the district court granting the preliminary injunction.
On appeal, the court first found that the City Council acted within the scope of its constitutional and statutory powers when it heard and ruled on Cajun 411’s appeal from the VCC’s deferral of its application back to the architectural subcommittee. Specifically, the Louisiana legislature, in La. R.S. 25:746, expressly granted authority to the council to hear appeals from the Commission. The VCCF further argued that the VCC’s deferral or failure to act on Cajun 411’s application was not appealable to the City Council because it was not a final decision or recommendation. This contention was rejected, however, as the statute explicitly provided that a concerned party could appeal the failure to act of a commission or an agency to governing body or authority which established it.
As to the preliminary injunction, the court found that there was no evidence in the record regarding what the trial court based its ruling on: that the “public trust” would suffer “immediate and irreparable injury, loss, damage or impairment” unless the City and the Council were enjoined from working out the final details with Cajun 411 for its proposed improvements and issuing a building permit for the same. After a review of the record, the court did not find any reason in support of the preliminary injunction being entered into to stop the City from issuing a building permit to Cajun 411. Accordingly, the court reversed the trial court’s judgment granting the VCCF’s motion for a preliminary injunction.
Vieux Carre Commission Foundation v City of New Orleans, 2018 WL 651668 (LA. App. 4 Cir. 1/31/2018)

This post was authored by Matthew Loeser, Esq.

Shop N Save LLC challenged the decision of the City of Des Moines Zoning Board of Adjustment which denied Shop N Save a conditional use permit (CUP) to operate a liquor store. Shop N Save petitioned for a writ of certiorari in the district court, which found that substantial evidence supported the Board’s denial of the CUP and affirmed. On appeal, Shop N Save alleged that the Board acted illegally in denying the CUP.
Here, the Board denied Shop N Save the liquor store CUP based on the store’s proximity to single family residential uses, which it determined “would not adequately safeguard the health, safety and general welfare of persons residing in the adjoining and surrounding residential area.” On appeal, Shop N Save contended there was insufficient evidence to support a finding that issuance of a liquor store CUP would create a nuisance. According to the record, however, two neighbors of the Shop N Save attended the Board’s meeting and spoke in opposition to issuing the CUP – citing the amount of trash generated as a result of the store and complained that the trash came onto their property. Additionally, there were also complaints that the noise the Shop N Save attracted caused their windows to rattle, and that some Shop N Save customers had been urinating in public. In response, Shop N Save failed to provide the Board with evidence to back up its claims that it would resolve these concerns. As the court found substantial evidence supporting the Board’s decision, and because the Board did not act illegally in denying Shop N Save’s application for a liquor store CUP, the court affirmed the district court’s decision.

Shop N Save, LLC v City of Des Moines Zoning Board of Adjustment, 2018 WL 542387 (1/24/2018)

This post was authored by Matthew Loeser, Esq.

In 2014, the Schoelens applied to the Planning Board for a minor subdivision with bulk variances to create a building lot for another family member from their two existing lots. Plaintiff Henry Yu and another neighbor objected to the subdivision plan. The Board voted unanimously to grant the application without any discussion of self-created hardship. Plaintiff then filed an action in lieu of prerogative writs, and claimed that the Schoelens had not demonstrated hardship, that there was no need to have drawn new lot lines so as to require variances for existing sheds, and that any hardship was self-created. Yu also contended that flag lots were not permitted by the zoning ordinance, were completely out of character for the area and were negatively affected neighboring properties. The Law Division judge denied plaintiff’s claim of self-created hardship, and held that although the Schoelens “could have originally made a road to divide the property into various neat lots,” their failure to do so did not equate to self-created hardship.
The record reflected that the Schoelens previously subdivided their seven-acre parcel, creating the existing two lots, and those two lots were configured exactly as they designed. Based on these facts, the court found the Board was required to consider whether the claimed hardship was one of the Schoelens’ own making. As such, the Board’s failure to apply the correct legal standard deprived its decision of the deference that it would ordinarily be afforded. The court therefore reversed the Law Division’s holding.

Yu v Toms Rovers Planning Board, 2018 WL 481588 (NJ App. 1/18/2018)
This post was authored by Mattew Loeser, Esq.

Defendants, David Miller and Donald Miller, were qualified medical marijuana patients along with defendant, Katherine Null, who served as David’s registered medical marijuana primary caregiver. During 2014, Null directed David to construct a medical marijuana structure in Donald’s backyard for containing the cultivation of medical marijuana for patients connected to Null through registration under the Michigan Medical Marihuana Act (“MMMA”). Defendants failed to obtain a construction permit for the medical marijuana outdoor growing facility, never got permits before installing an electrical and watering system, and never obtained a certificate of occupancy. After learning that defendants built their medical marijuana facility outdoors that failed to comply with zoning and construction regulations, plaintiff filed a declaratory judgment action seeking the trial court’s determination of the validity of its zoning and construction regulations and its right to enforce them as they applied to the cultivation and use of medical marijuana in zoned residential locations and subdivisions. In this case, plaintiff appealed from the trial court’s judgment declaring that plaintiff could not enforce its zoning ordinance’s prohibition against outdoor growing of medical marijuana because the ordinance conflicted with the provisions of the MMMA, and was therefore preempted.
The local ordinance at issue, Zoning Ordinance § 40.204 restricted home occupations and home-based businesses. Specifically, § 40.204(13)(e) required that all medical marijuana was to be contained inside the house in residential zoned areas. Here, the court noted that plaintiff’s home occupation ordinance § 40.204(13), subparts (e) and (f) clearly prohibited the outdoor growing of medical marijuana that the MMMA otherwise permitted. As such, the court found that plaintiff’s prohibition effectively denied registered caregivers the right and privilege that the MMMA permitted. Furthermore, the MMMA did not grant municipalities authority to adopt ordinances that restricted registered caregivers’ rights and privileges under the MMMA. Accordingly, the court held the local ordinance was void and preempted by the MMMA.
Charter Township of York v Hiller, 2018 WL 472187 (MI App. 1/18/2018)
This post was authored by Matthew Loeser, Esq.

Esco Products, Inc. purchased property in the Township of Jefferson to manufacture custom optics for military, automotive, medical, and communications customers. The existing building on the property operated as an office, warehouse, and storage facility for a company that distributed and installed office furniture and equipment. Esco proposed no physical changes to the existing building, driveways, or parking lot and proposed no additional construction on the property. Esco required two variances for its proposed use: a use variance, as the property was located in the O Zone; and a “c” variance, since the amount of land between the existing building and the nearest residential boundary line did not meet the required length for a planted buffer in accordance with the Township’s ordinance. The Board of Adjustment of the Township of Jefferson granted Esco’s variance requests subject to specific conditions. Plaintiffs Robert and Sandra Fisher, neighboring property owners, appealed this decision, and the Law Division affirmed the Board’s approval of Esco’s variance applications.

On appeal, the court rejected plaintiffs’ contention that the Board’s approval of a use variance was inconsistent with the Township’s master plan, zone plan, and zoning ordinance. The Law Division judge found the Board’s resolution reconciled the master plan with Esco’s planned use, since the proposed use was similar to the previous office and storage use on the property. The judge further found that the high-tech fabrication and manufacturing operations by Esco were similar to activities that would take place in scientific, engineering or research laboratories, which were permitted in the O Zone. Accordingly, the court affirmed the holding of the Law Division, finding there was substantial credible evidence to support the Board’s findings.

Fisher v. Board of Adjustment of the Township of Jefferson and Esco Products, Inc. 2018 WL 482072 (NJ App. 1/18/2018)

Presbyterian Church of Toms River submitted an application for a use variance to the Township of Toms River Zoning Board of Adjustment so that it could lease part of its parking lot to an off-site automobile dealership for the storage or parking of its automobiles. Carr, a resident of the Township and President of the Township’s Council, opposed the application, alleging the Church was required to present proof of “special reasons, proof of hardship or something of the planning nature” in order to obtain the variance. The Board granted the Church’s application, and the plaintiffs filed an action in lieu of prerogative writs in the Law Division challenging the Board’s action on various grounds. The trial court affirmed the Board’s action, and Carr appealed.
On appeal, Carr first argued that the Board did not have authority under the Municipal Land Use Law (MLUL) to adjourn the matter and continue the vote at the September 10, 2015 meeting, so that another eligible member could vote on the application. Here, the record indicated that after five of six members voted at the September 10, 2015 meeting, the sixth member unexpectedly abstained from voting due to a perceived conflict of interest. Thus, the Church’s application only garnered four affirmative votes, which was one short of the five votes required by N.J.S.A. 40:55D-70(d) for a use variance. The trial court judge found that the Board acted in good faith to preserve the integrity of the hearing process and that such action was “clearly within” the Board’s discretion. Furthermore, there was no provision of the MLUL that precluded the Board from taking this course of action. As such, the court found that the Board’s action was not arbitrary, capricious, or unreasonable.
Carr next contended that the Board’s action in granting the use variance to the Church was arbitrary, capricious, unreasonable, and unsupported by the record. Specifically, Carr argued that the Church failed to establish special reasons for the grant of the variance and the trial court erred by affirming the Board’s action. The court agreed that the proposed use of a portion of the Church’s parking lot did not meet the generally accepted view of an inherently beneficial use, and was not ancillary to the Church’s use of the property for church-related purposes. Despite this, the court found that the Church established “special reasons” for the variance by showing that the under-utilized section of its parking lot was “particularly suitable for the proposed use.” Additionally, the Board imposed conditions in its resolution that were intended to ensure that the proposed use had a minimal impact on the surrounding properties. Moreover, since the proposed use was not substantially different from the present allowed use of the property, no expert testimony was required. As the proposed use was indistinguishable from its present use, and the record indicated that the variance could be granted without any substantial detriment to the zoning ordinance or the zone plan, the trial court’s decision was affirmed.

Collins v Presbyterian Church of Tons River, 2018 WL 481780 (NJ App. 1/17/2018)

This post was authored by Matthew Loeser, Esq.

Editor’s note: Thank you to Kelly A. Pressler, Esq., senior counsel at Jacobowitz and Gubits, LLP for this contribution.

BT Holdings, LLC (“BT”) purchased approximately 65 acres located in Chester, Orange County in the mid-80s.  At that time, the property was located partially in the Town of Chester and partially in the Village. The property remained vacant and unused until 2004 when the Town changed the zoning on the portion of the land within its borders.   BT began pursuing development of the site, meeting with the Town and Village officials to collaborate on a development plan.  The Village requested that BT annex the land entirely into the Village borders, allowing the Village to reap all of the tax benefits and permitting BT to use the Village’s municipal water supply. BT petitioned for annexation in January 2008.  An extensive, highly specific SEQRA review took place, concluding with the Village’s Findings statement in December 2011.  During the SEQRA review, the Village, as lead agency, reviewed a very specific development plan for luxury townhomes and senior housing arranged to create a neighborhood configuration.  The  Village also tasked BT with developing and drafting a new zone which would apply to the project; that new zoning was also part of the SEQRA review.  The Village’s Findings statement was approved unanimously and the Village Board voted in favor of the annexation.     The Town voted against annexation and two lawsuits were commenced, with BT and the Village fighting the Town to allow the annexation.  Those two lawsuits were settled via two Stipulations of Settlement, signed by all three parties, in approximately June 2013.  In the Stipulations, the Town agreed to rescind their SEQRA findings and adopt the Village’s, allowing the annexation; BT agreed to a reduction in the overall number of units in its project; and the Village agreed to allow construction of the proposed project in the manner set forth in the SEQRA Findings.   Once the annexation became final, the Village refused to assign any zoning to BT’s property, including the zoning that was drafted and reviewed during SEQRA process.  In November 2014, the Village Board voted against three different zoning districts for BT’s property, and also voted against assigned existing zoning to the Property, choosing again to leave the property un-zoned.   BT filed a lawsuit for breach of contract and breach of implied covenant of good faith and fair dealing.  After a jury trial in Orange County Supreme Court, the jury unanimously found the Village of Chester and its Board of Trustees liable for breaching both Stipulations of Settlement and the implied covenant of good faith and fair dealing contained in each Stipulation.  The jury awarded BT $2.375 million in damages.

See, http://www.recordonline.com/news/20171128/village-of-chester-ordered-to-pay-24m-to-developer

Editor’s note: This post originally appeared on Ancel Glink’s Municipal Minute here: http://municipalminute.ancelglink.com/2017/12/federal-court-dismisses-challenge-to.html

As short term rentals become more popular, local governments have had to rethink their current residential use restrictions to address this new use. Many local governments have relied on their “exclusionary” zoning ordinances that permit only those uses expressly listed in the zoning district as permitted or special/conditional uses to prohibit short term rentals. Others have adopted amendments to their zoning ordinances to expressly restrict and/or regulate short term rentals. Morgan County’s application of its zoning regulations to a short term rental was recently the subject of a legal challenge in May v. Morgan County, (11th Cir. Dec. 21, 2017), which upheld the county’s ban on short term rentals in single family dwellings.
In 2010, the county enacted a ban of short term rentals in single family homes, defined as any rental for less than 30 consecutive days. In 2011, the county cited May, the owner of a lakefront single family home for violating that ordinance. She subsequently filed a civil rights lawsuit, arguing that her short term rental use was “grandfathered” under the zoning ordinance since she had started renting her home in 2008, 2 years prior to the county’s ban on these rentals. Her first lawsuit (filed in state court) was dismissed because she failed to exhaust her administrative remedies by seeking zoning relief and that her challenge to the short-term rental ban was time-barred because she didn’t bring her lawsuit within 30 days of adoption of the ban.
After her first case was dismissed, she filed a rezoning application with the county and a request that the county revoke the ban on short term rentals. After both applications were denied, she filed a second lawsuit, this time in federal court, arguing she had a grandfathered right to rent out her home and that the county violated her “grandfathered constitutional rights,” which she claimed were protected civil rights.
The case made its way to the 11th Circuit Court of Appeals, which dismissed her claims based on the “Rooker-Feldman” doctrine which states that federal courts do not have jurisdiction to review state court decisions. Here, the state court had already decided her claims against enforcement of the county’s short-term rental ban and she could not attempt to relitigate those claims in federal court.
May v Morgan County, 878 F.3d 1001 (11th Cir. CA 12/21/2017)

Editor’s Note: This post originally appeared on the Rocky Mountain Sign Law Blog here: https://www.rockymountainsignlaw.com/2017/12/ninth-circuit-rules-ventura-county-conditional-use-permitting-scheme/#more-2436

Michael Fowler, a resident of Ventura County, California, cultivated a garden on a portion of his agriculturally-zoned 40 acre property and began renting it out for wedding ceremonies and similar events with much success. However, due to changes to the County’s permit requirements, Mr. Fowler is now required to obtain a conditional use permit (CUP) before hosting any additional weddings on his estate.  With reservations already on his books, Mr. Fowler submitted the required application.  Officials tasked with reviewing his application found that the use would cause no adverse impacts and recommended granting the permit; however, after receiving complaints from neighbors, these same officials denied his application.  The Board of Supervisors upheld the denial on appeal.  This seemingly capricious denial forced Mr. Fowler to chose between breaking the law and dashing the dreams of couples who had already booked his venue by essentially cancelling their weddings.  Sensibly, he chose the latter “option,” resulting in at least one scathing review of his business and untold reputational harm.

Thwarted but not defeated, Mr. Fowler challenged the permitting scheme in the Untied States District Court for the Central District of California, claiming, among other things, that it abridges his customers’ right of free speech in violation of the First Amendment. The District Court dismissed his suit on all grounds and Mr. Fowler timely appealed his case to the Ninth Circuit.

There, the Ninth Circuit first held that Mr. Fowler has standing to challenge the County’s permitting scheme, noting that (i) vendors have well-established third-party standing to advocate for the rights of their customers and (ii) Mr. Fowler’s “injury” is redressable through elimination of the CUP scheme.

That threshold matter firmly settled, the Ninth Circuit then held that the ordinance was not a valid time, place, and manner restriction on speech for two reasons. First, the Court found that the CUP scheme lacks definite and objective standards upon which officials must base their decisions.  Second, the Court noted that the CUP scheme lacks a specific time limit in which officials must reach their decision.  According to the Ninth Circuit, these deficiencies within the CUP scheme give permitting officials “unbridled discretion” in direct violation of the First Amendment.  With this ruling in hand, Mr. Fowler may once again request injunctive relief in District Court, though it remains to be seen whether wedding bells are in his future.


Epona v. County of Ventura, 2017 WL 6044233 (9th Cir. Dec. 7, 2017)

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