McKee Family I, LLC, challenged a decision of the City of Fitchburg, Wisconsin, to rezone property that McKee owned. McKee argued that, in getting as far as it did in the City’s development planning process, it obtained a vested right in a Planned Development District (PDD) zoning classification for the two lots, and that this vested right precluded Fitchburg from rezoning the property to a Residential–Medium (R–M) classification. McKee argued that when Fitchburg rezoned the property to R–M it improperly prevented McKee from developing the property with the higher housing density, as allowed under the former PDD classification. The circuit court granted summary judgment to Fitchburg, dismissing McKee’s claims. As pertinent to the preserved issues that McKee raised on appeal, the court concluded that McKee did not have a vested right in the preexisting zoning classification and that its constitutional claims failed as a result.

The court first noted that property owners obtain no vested rights in a particular type of zoning solely through “reliance on the zoning” but only acquire vested rights after the submission of a building permit application that conforms to the zoning or building code requirements in effect at the time of the application. Here, even though the council approved a general implementation plan, the City never approved the specific implementation plan and no building permit application was submitted. Applying the building permit rule, the court therefore found that McKee’s claims failed because it never acquired a vested right in the PDD zoning classification.

McKee next argued that a vested right is a necessarily implied authorization in the legislative approval of a PDD district and that the court should decline to apply the building permit rule under the circumstances presented because “PDD zoning is contractual in nature”. The court disagreed, however, and found that legislative acts are presumed not to create contractual rights because the primary function of a legislative body is to make laws that effectuate policies, not to make contracts that bind future legislative bodies. Moreover, there was nothing in the statute to suggest that once a municipality classifies real property with the PDD zoning status the municipality is thereafter contractually obligated to maintain that zoning classification indefinitely, or at least until the property owner consents to a change in the classification. Accordingly, the court held that McKee did not acquire a vested right in the PDD zoning classification under the building permit rule.

McKee Family 1, LLC and JD McCormick Company, LLC v City of Fitchburg, 2015 WL 6739735 (WI App. 11/5/2015)

On May 21, 2013, the voters of the City of Los Angeles approved Proposition D, a measure placed on the ballot by the City Council to regulate medical marijuana businesses (MMB’s), making it a misdemeanor to “own, establish, operate, use, or permit the establishment or operation of a MMB” Medical marijuana business, Optimal Global Healing, Inc., and its chief executive officer (CEO) were convicted of operating medical marijuana business in violation of city ordinance. In this case, Defendants Optimal Global Healing, Inc. and CEO Demarcio Posey appealed the judgment resulting from their convictions for two counts of operating an unlawful MMB. California law allows medical marijuana dispensaries to be lawfully operated notwithstanding California statutes which otherwise make the possession, transportation, and sale of marijuana a criminal act. According to defendants, Proposition D conflicts with zoning laws contained in the Government Code, and is therefore invalid.

Defendants also argued that Proposition D’s regulation of MMB’s affected land use and, as such, contained a zoning component, which in turn required the City’s planning commission “hold a public hearing on the proposed zoning ordinance or amendment” and provide notice thereof as set forth in the indicated code sections. However, because Proposition D was enacted by voters rather than the City Council a hearing before the planning commission was not required. The court found that the removal of the ordinance from the City Council to the electorate rendered the planning commission hearing component of the Government Code inapplicable while simultaneously protecting the rights of the citizenry to notice of the proposed ordinance, and an opportunity to participate in the democratic process of passing the ordinance. As to Defendants’ argument that they lacked the requisite mens rea, the court found that LAMC section, subdivision A, does not use such words as “knowingly,” “willfully” or “intentionally” in specifying the unlawful conduct, or otherwise state an explicit mens rea requirement. Furthermore, the ease with which defendants could determine they were engaged in the prohibited conduct of operating an MMB weighed in favor of strict liability. Accordingly, the trial court’s holding that the People were not required to prove mens rea in order to secure a conviction for the illegal operation of an MMB was affirmed.

People v Optimal Global Healing, 2015 WL 6940135 (CA App. 11/5/2015)

Morningstar Marinas (petitioner) owned land abutting Lake Gaston in Warren County, where it operated a commercial marina known as Eaton Ferry. Petitioner’s property was zoned for business development pursuant to the Warren County Zoning Ordinance. East Oaks, LLC owned land approximately 145 feet away, across a small cove. Under the Ordinance, 8.5 acres of that property were zoned as residential and 1.91 acres were zoned for commercial use. In April 2011, East Oaks filed a petition seeking a conditional use permit to develop a townhouse community (the Townhouse Project) on the residential portion of the property. The site plan for the Townhouse Project showed a proposed access easement for a driveway (the Drive) connecting the boat storage building on the commercial portion of the property to a boat launch area on Lake Gaston located on the residential portion of the property. However, before the Board had an opportunity to rule on the petition, Warren County Planning and Zoning Administrator Ken Krulik issued a formal determination concluding that townhouses were a permitted use in the subject residential district and therefore, a conditional use permit was not required. As a result, East Oaks withdrew its application for a conditional use permit and obtained a zoning permit to develop the townhouses.

Petitioner appealed Krulik’s formal determination to the Board and argued that the Townhouse Project did not constitute a permitted use in the East Oaks residential property pursuant to the Ordinance. Petitioner filed petition for writ of mandamus, seeking to compel county planning and zoning administrator to place, on Board of Adjustment’s agenda, neighbors appeal from administrator’s determination that easement connecting landowner’s residential and commercial properties did not constitute a commercial use of residential property. The Superior Court, Warren County, issued the writ of mandamus, and Krulik appealed. The Court of Appeals affirmed, and Krulik petitioned for discretionary review, which was denied.

Respondents argued the trial court erred by granting petitioner’s request for writ of mandamus because petitioner lacked standing as a party “aggrieved” to appeal Krulik’s determination. Although subsection 153A–345(b) clearly included the standing requirement that only a “person aggrieved … may take an appeal,” neither the statute nor the Ordinance included any language suggesting that this determination is to be made by a zoning officer. Here, the plain language in both the statute and the Ordinance mandated that the zoning officer forward the documents constituting the record to the Board: an act that is ministerial in nature, involving no discretion. Therefore, the court concluded that these officers are not vested with authority to dismiss or foreclose an appeal based upon their legal determination that the appealing party lacks standing. Accordingly, the court affirmed the Court of Appeals’ determination that the trial court did not err by granting mandamus and by ordering respondents to place petitioner’s appeal on the Board’s agenda.

Morningstar Marinas/Eaton Ferry, LLC v Warren County, 2015 WL 6777106 (NC 11/6/2015)

Andrew Sabo was issued a building permit to construct an attached addition to his residence in Yorktown, consisting of a den and a large garage. Sabo’s neighbor, Nicholas Witkowich, commenced an administrative proceeding before the Zoning Board of Appeals challenging the issuance of the permit. Witkowich contended that the proposed structure was not an addition to the main residence, but was an impermissibly large “accessory” building under section 300–14(D) of the Town of Yorktown Zoning Ordinance. After a hearing, the ZBA issued a determination that the building permit had been properly issued based upon its interpretation of the ordinance. Witkowich commenced a CPLR article 78 proceeding to review the ZBA determination. The Supreme Court granted his petition and annulled the determination of the ZBA, and Sabo then appealed.

Section 300–3(B) of the ordinance in question defined an “accessory” building as a “subordinate building, whether or not attached to the main building via a breezeway or connecting corridor, the use of which is customarily incidental to that of a main building on the same lot.” According the language of this ordinance, an accessory building may be either a detached building or a building attached to the main building by a breezeway or connecting corridor. Here, the ZBA determined that the proposed structure, consisting of an attached den and garage area, was an addition to the main building, not an “accessory” building within the meaning of section 300–3(B) of the ordinance. In reaching its determination, the ZBA considered record evidence that the proposed den area was to be used as conventional living space and not a connecting “breezeway” or “connecting corridor.” Accordingly, the court held that the ZBA’s interpretation of the relevant provisions of the ordinance was neither unreasonable nor irrational. The Supreme Court’s holding was therefore reversed.

Witkowich v Zoning Board of Appeals of Town of Yorktown, 2015 WL 6982380 (NYAD 2 Dept. 11/12/2015)

Plaintiff, SBA Towers VI, LLC maintained that Defendant, City of Coshocton, Board of Zoning Appeals violated two provisions of the Telecommunications Act, (“TCA”) 47 U.S.C. § 332(c)(7)(B)(iii), related to the claim that the Board failed to support the decision to deny SBA’s application for a permit to construct a cellular tower in writing, supported by substantial evidence, and § 3332(c)(7)(B)(i)(II), for purportedly prohibiting the provision of personal wireless services. The parties disagreed as to the proper scope of discovery: SBA contended that no discovery is warranted as a matter of law; the Board countered that the administrative record in this case was limited such that it must be permitted to engage in discovery because it could not adequately defend its position.

The Board argued that the administrative record in this case consisted only of the Board’s denial letter, its May 5, 2015 Meeting Minutes, and two letters from residents opposing SBA’s application for a zoning permit. The Board indicated that the meeting was not transcribed, recorded or videotaped but that the Minutes would reveal that the Board members had a “lengthy discussion” regarding SBA’s zoning permit and that the Board “voted on the appeal.” The court found, however, that a defendant was not entitled to discovery in order to create the record it seeks to defend after it has been sued under § 332(c)(7)(B)(iii). Thus, the Court was limited to the administrative record as it was before the zoning board. Accordingly, the court found that no discovery was permissible to support the Board’s defense that substantial evidence supported its decision to deny SBA a zoning permit to construct a telecommunications tower.

SBA Towers VI, LLC v City of Coshocton Board of Zoning Appeals, 2015 WL 6935032 (SD OH 11/10/2015)

Plaintiffs-appellees Orange County, County Poughkeepsie Limited Partnership, d/b/a Verizon Wireless, and Homeland Towers, LLC, a tower company, sought to construct a new wireless communications tower in the Town of East Fishkill, New York. The defendants-appellants, the Town of East Fishkill and the Town of East Fishkill Zoning Board of Appeals, denied the plaintiffs’ request for a special permit, a 40–foot variance, and a wetlands/watercourse disturbance permit. The plaintiffs brought claims under the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) (the “TCA”), asserting that the Town’s denial of its application amounted to an effective prohibition of wireless services and that the Town’s decision was not supported by substantial evidence. The district court granted summary judgment in favor of the plaintiffs.

At the outset, the court first noted that the TCA’s “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user’s ability to reach a cell site that provides access to land-lines.” In making the determination of whether a significant gap exists, courts consider the gap’s physical size, the number of wireless users affected by the gap, the location of the gap, and drop call or failure rates. Here, the Town’s conclusion that any coverage gap was de minimis was contradicted by the plaintiffs’ uncontested radio frequency analyses, propagation maps, and drive test data demonstrating a significant coverage gap in the area: specifically, two coverage gaps of 2 miles on the Taconic State Parkway and 1.6 miles on Route 82. Furthermore, it was undisputed that the gaps affect approximately 35,000 commuters on a daily basis. Finally, the plaintiffs investigated thirteen single-site options and two multisite options as alternatives to their proposed facility and determined that none of these sites would adequately remedy the coverage gap. Accordingly, no alternative sites or preexisting structures could have supported a facility that would remedy the coverage gaps. The court therefore held that the district court properly granted summary judgment in favor of Verizon and Homeland on their claim that the Town’s denial of their application constituted an effective prohibition of wireless services in violation of the TCA.

Orange County-County Poughkeepsie Limited Partnership v Town of East Fishkill, 2015 WL 6875162 (2nd Cir. CA 11/10/2015)

Charles and Betsy Diefenderfer (Appellants) appealed from an Order of the Court of Common Pleas of Northampton County dismissing Appellants’ land use appeal of a zoning ordinance regulating digital billboards, which was enacted by the Palmer Township Board of Supervisors. On appeal, Appellants contended that the Board’s decision to amend the pending Ordinance’s regulations, with respect to the permitted hours of illumination for digital billboards, represented a “substantial amendment” to the Ordinance such that the Board was required to advertise a summary of the amendment pursuant to the Pennsylvania Municipalities Planning Code (MPC), prior to enactment of the Ordinance. Appellants further contended that the illumination from the billboard shined directly into their home and has deprived them “of the quiet and peaceful enjoyment of their property, prevented them from sleeping or otherwise enjoying their home and caused deterioration in their health and well-being.”

The Township contended that the removal of the single subsection governing hours of illumination was miniscule compared to the rest of the Ordinance –thus, it was unsubstantial. The court disagreed, finding this change reflected a “significant disruption of the continuity” of the Ordinance to the extent that it substantially increased the negative impact of the Ordinance on landowners living close to digital billboards. Because the court concluded that the change to the Ordinance was substantial, it found the Township did not substantially comply with Section 610 of the MPC when it did not advertise the change before the Ordinance was enacted. Due to the Township’s failure to comply with Section 610 of the MPC, Appellants and similarly situated landowners were prevented from commenting on the proposed change before it was enacted. Accordingly, the court held that Appellants met their burden under Section 5571.1 of the Judicial Code and that the Ordinance was “void from inception.”

Diefenderfer v Palmer Township Board of Supervisors, 2015 WL 6919451 (PA Commwlth 11/10/2015)

Plaintiff New Life Evangelistic Center, Inc. (“New Life”) is an interdenominational Christian church and Missouri non-profit corporation that operates a homeless shelter in Saint Louis City (hereinafter the “Facility” or “NLEC”). According to New Life, the Facility houses on average between 225 and 250 individuals per night and, on a cold night, this number could be as high as 300 individuals. On March 16, 1976, the City issued New Life hotel permit No. 84777, which allowed New Life to provide 32 beds at the Facility. On April 26, 2013, a petition was submitted to the City’s Board of Public Service seeking a hearing before the Board to have the Facility declared a “detriment to the neighborhood” pursuant to Chapter 11.72.010 of the St. Louis City Revised Code. The Board declared the Facility a detriment to the neighborhood and revoked New Life’s Permit effective May 12, 2015, unless on or before that date New Life provided documentation that it was in compliance with the hotel permit’s 32–bed requirement for at least 30 days or that it had obtained the necessary permit and/or license to operate its facility. Rather than appeal this decision, New Life New filed this action against the City for declaratory relief, injunctive relief, and damages pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In its analysis, the court first noted that in Williamson County, the Supreme Court held that “a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Here, the Board held it would revoke New Life’s hotel permit unless New Life provided documentation that it was in compliance with the hotel permit’s 32–bed requirement for at least 30 days, or that it had obtained the necessary permit and/or license to operate its facility. The Order granted a three-month grace period, from February 17, 2015, to May 12, 2015, in which New Life could have attempted to conform to one of those two options. Therefore, there was no claim of immediate injury. Moreover, since the court could not determine that the City definitively barred New Life from using the building as it wished until the City evaluated a completed application and determined how it will apply its land use regulations to the Facility, the futility exemption did not apply. Likewise, no hardship was found since New Life had failed to show an immediate injury. Accordingly, the court held that New Life’s RLUIPA claims were unripe.

New Life Evangelistic Center, Inc. v City of St. Louis, 2015 WL 6509338 (ED MO 10/27/2015)

For something different – I decided to write an essay on how being a law school dean is much like engaging in the land development process.  Over the holidays I invite you to take a look at the essay and feel free to send me your thoughts on what I may have missed.  The essay can be downloaded here:

In 1999, SBJ Associates, LLC, purchased a 382–acre parcel of property in the Town of Huntington and submitted to the Town Board of the Town of Huntington a “proposed master plan” for a residential planned use development (“R–PUD”).  On March 8, 2004, Greens at Half Hollow (“GHH”) conveyed approximately 84 acres of The Greens at Half Hollow to the defendant Greens Golf Club, LLC (“GGC”), including the combined building and its related outdoor recreational facilities. In 2011, the Greens at Half Hollow Home Owners Association, Inc. (“HOA”), for itself and on behalf of its members, the Boards of Managers of each of the five condominiums of The Greens at Half Hollow, and four individual unit owners, commenced this action against GGC and GHH, successor in interest to original developer and owner of private golf club located adjacent to the development, alleging, that successor’s transfer of community building and related outdoor recreational facilities to golf club owner amounted to theft and violated zoning ordinance’s requirement that community building and related facilities be used for exclusive use of development’s residents. The Supreme Court, Suffolk County, granted in part and denied in part plaintiffs’ motion for summary judgment and defendants’ motion for summary judgment and both parties appealed.

Town Law § 268(2) provides a mechanism by which a Town or, as here, at least three taxpayers who meet certain requirements, may enforce a zoning ordinance. However, while the statute spoke of an unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use, or division of land, it did not provide for a transfer of title as a remedy. The defendants then contended that even if the individual plaintiffs may use Town Law § 268(2) to seek enforcement of this portion of Town Code § 198–21.2(F)(1)(b), it may not be enforced because the Town lacked the authority to regulate who owns or occupies land. The court found that the town does not act in excess of its authority when it creates a zoning district for senior citizens, or when it limits the occupancy of dwelling units within a planned retirement community to persons aged 55 or over. Because these were valid exercises of a town’s zoning power, the court found a town may also limit the use of a recreational facility within a senior residential community to those seniors living there. Accordingly, the Supreme Court properly granted the branch of the plaintiffs’ cross motion for summary judgment on the first cause of action seeking exclusive use of the community building portion of the combined building and its associated outdoor recreational facilities, including the swimming pool and tennis courts.

The court also found that Town Law § 268(2) did not permit a cause of action to recover damages allegedly sustained by the individual plaintiffs on account of the zoning violation or to disgorge profits obtained during the period of violation, since any such claims would be governed by the contractual relationships between the parties in the purchase agreements and incorporated documents. Additionally, the defendants were given an easement over the common areas and common elements, including roadways, walkways, and landscaped areas, for ingress, egress, and the retrieval of golf balls. The court noted that absent an express agreement, all persons benefitted by an easement must usually share ratably in the cost of its maintenance and repair. Here, the C & R Declaration and the Declaration of Condominium expressly allocated all common expenses to the unit owners according to their percentage interests in the common elements, which constituted an express agreement relieving the defendants of any such obligation. Finally, the court upheld the trial court’s holding that the covenant to pay social membership fees to GGC runs with the land so as to bind subsequent purchasers.

Greens at Half Hollow Home Owners Association, Inc. v Greens Golf Club, LLC, 2015 WL 5568995 (NYAD 2 Dept. 9/23/2015)

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