Taxpayers Bryan Sullins, Kerri Sullins, and Charles Williams filed suit against Pulaski County, Central Arkansas Water, and Buddy Villines in his capacity as Pulaski County Judge (appellees), claiming that appellees had entered into an agreement which necessitated Central Arkansas Water to expend public funds illegally. Specifically, appellants alleged that they and other similarly situated taxpayers had paid the watershed fee imposed by Central Arkansas Water and that it constituted an illegal exaction because the Watershed Protection Agreement between Central Arkansas Water and Pulaski County was illegal. The circuit court ruled that the agreement was a proper contract for administrative services and entered summary judgment in favor of appellees.

Illegal-exaction lawsuits in Arkansas are authorized under article 16, section 13, of the Arkansas Constitution, which provides, “Any citizen of any county, city, or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” Section 3.03 states that Central Arkansas Water will, “assist Pulaski County with the implementation and enforcement of Chapter 8 and the Stormwater Management Ordinance as contemplated hereby” does not enact new policy, but simply provides for the enforcement of the existing ordinance. The court found that the circuit court did not err in ruling that the agreement was administrative, because the provisions of the contract do not delegate rulemaking or policy-making powers to Central Arkansas Water but instead related only to administrative actions, such as implementation and enforcement of the ordinance previously passed by Pulaski County.

The Interlocal Agreement Act expressly authorizes counties to “cooperate in the exercise of any function, power, or responsibility; share the services of any officer, department, board, employee, or facility; and transfer or delegate any function, power, responsibility, or duty.” Because the contract between Pulaski County and Central Arkansas Water was authorized by the Interlocal Agreement Act, the expenditure of funds under the contract was found by the court to not be an illegal exaction, and therefore the circuit court properly granted summary judgment against appellants.

Sullins v Central Arkansas Water, 2015 Ark. 29 (Ark. 1/29/2015)

The opinion can be accessed at: http://law.justia.com/cases/arkansas/supreme-court/2015/cv-14-581.html

Caddyshack Looper, LLC, owned real property adjacent to Lake Michigan on Lake Shore Drive, Long Beach, LaPorte County, Indiana. Caddyshack petitioned for review of decision by town board of zoning appeals denying request for variance from ordinance restricting distance of structures from road and proximity to the lake. Caddyshack now appeals the trial court’s order affirming a decision by the Long Beach Advisory Board of Zoning Appeals (the “BZA”) denying a request for a variance by Caddyshack. On appeal, the issue presented was whether the trial court erred in affirming the decision of the BZA that the seawall constructed on Caddyshack’s property was in violation of the Ordinance and must be removed.

Caddyshack first contended that the Ordinance did not apply to its property or seawall. However, the evidence did not show that the seawall in this case was more akin to a fence or did not constitute a structure as contemplated by the Ordinance or that the BZA or trial court erred in finding that the seawall was governed as a structure under the Ordinance. Pursuant to Ind.Code § 36–7–4–918.5(a) a variance may be approved under this section only upon a determination in writing that: 1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community; 2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and 3) the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property. As to the feasibility of alternatives, the court found the seawall was built to protect the home from storm damage and the evidence shows that there would have been few, if any, practical alternatives to a seawall within the 106.6–foot setback requirement that would adequately protect the property and that could be installed within the setback without damaging the improvements. Furthermore, Caddyshack presented evidence of the work to remove the seawall and estimates of the cost for removal of $247,575 and $295,125.

Accordingly, based on the evidence before the BZA, the court concluded that Caddyshack demonstrated that strict application of the setback requirement will result in practical difficulties in the use of the property under Ind.Code § 36–7–4–918.5(3). The trial court’s holding was therefore reversed in favor of Caddyshack.

Caddyshack Looper, LLC v Long Beach Advisory Board of Zoning Appeals, 22 NE 3d 694 (Ind. App. 12/4/2014)

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/12041401ebb.pdf

Daniel Epifano, acting through David S. Huntington, submitted an application to the Fairfield Zoning Board of Appeals for variances that would permit the construction of a single-family residence on an unimproved parcel in a flood plain zone. Ultimately, however, they sought permission for the construction of a three story commercial building located entirely within the flood zone. On the close of a public hearing, the Board approved the requested variances and the decision was published in a newspaper circulated within the community. Eight residents of Old Damn Road (Plaintiffs) then appealed the decision.

In an unreported decision, the court first held that that five of the eight residents had standing due to the close proximity of their property to the subject parcel.
The court next determined that the defendant’s property was not entitled to preexisting nonconforming use status because the previous use had been abandoned for years.

The court rejected the argument that the chairman of the Zoning Board of Appeals had a conflict of interest when he voted for the defendant’s application because the father of his son-in-law was the personal attorney for the defendant. In finding that the municipal governments would be seriously handicapped if remote or speculative interests required the disqualifications of a zoning official, the court said that there were no personal or pecuniary interests in the subject matter of the application, or any relationship with any of the parties who were before the Zoning Board of Appeals. Further, the court said that the chairman was not related, by blood or marriage, to the defendant, was not a part owner of the parcel on question, and the fact that his daughter was married to the son of the personal attorney and cousin of an owner to the property was too attenuated to provide the basis for a personal interest claim against the chairman. Therefore, there was no conflict of interest.

Finally, the court found that the defendant presented a showing of hardship in his request for variances because the specific topography of the property in dispute allowed for construction on only 3,200 square feet, and the building of a residential property is a permitted use in a flood plain district upon the approval of a special permit by the zoning commission. The court concluded in saying that the absence of any vote concerning a Coastal Area Management application does not impact the decision to grant the requested variances.

Coppola v. Zoning Bd. of Appeals of Town of Fairfield, 2014 WL 2055635 (CT. Sup. unrep. 1/24/2014)

Verizon sought to construct a new wireless telecommunications facility consisting of an approximately 150 foot tall monopole (the “Monopole” or the “Tower”) and associated equipment and installations (together the “Facility”). However, under the Town of East Fishkill’s Zoning Code (the “Code”), a special permit issued by the Board is required for the construction of a wireless communication facility within the R–1 (Residential) Zoning District, and the maximum height of a freestanding tower in a residential area is 110 feet. Plaintiffs submitted their joint application with a detailed cover letter to the Town for a special permit with requests for a 40 foot height variance and a wetland/watercourse disturbance permit to install the Facility on the Site. The Board retained its own wireless consultant, Ronald Graiff, P.E. to review and advise the Board on RF issues related to the Application. The Board relied on the conclusion in Graiff’s Initial Report that “the proposed site only provides approximately 20% new coverage (un-duplicated) and nearly 80% overlaps with existing coverage ….,“ and denied the Application.

Under the Telecommunications Act of 1996, the local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7) (A), but may not, among other things, “prohibit or have the effect of prohibiting the provision of personal wireless services.” To establish the first prong of an effective prohibition claim, a plaintiff must establish that a significant gap in wireless coverage exists. At oral argument, Defendants conceded that despite the Denial’s conclusion, they were not contesting the gap. This concession, alone, was sufficient to satisfy the first Willoth prong under the effective prohibition test. Under the second prong of the Willoth test, a local government may deny an applicant’s proposal if an applicant may “select a less sensitive site, … reduce the tower height, … use a preexisting structure or … camouflage the tower and/or antennae.” The court found that the record demonstrated the Plaintiffs satisfied their obligation to make an effort to evaluate alternative locations, and the Board’s denial of the Plaintiffs’ application has left the Plaintiffs with no feasible means of filing the gap. Accordingly, Plaintiffs were granted summary judgment on their effective prohibition claim.

The Board also denied the application on the grounds that the proposed tower would lower property values. Here, the proposed Site is near four large ham radio towers in the neighborhood, and neighbors opposing the Application acknowledged that the ham towers existed on property along Dartantra Drive at the time they purchased their homes. Therefore, the court found the Board’s decision was not based on substantial evidence. Accordingly, the Court ordered that the Board to grant the application and issue all required permits.

Orange County-Poughkeepsie Limited Partnership v Town of Fishkill, 2015 WL 409260 (SDNY 1/30/2015)

Barbara and William Layton appealed from an order of the Court of Common Pleas of Beaver County, which reversed an order of the New Sewickley Township Zoning Hearing Board (ZHB) that had concluded that the dog-rescue operation run by Richard and Noreen Kohl (Applicants) was a non-permissible “kennel” under the Township’s zoning ordinance and denied the Applicants’ request for a variance. The trial court determined that because Applicants did not receive “economic gain” or a profit for their efforts, their dog-rescue operation was not a “kennel” and, therefore, was not a prohibited land use under the Ordinance. The Layton’s presented two issues in their statement of the questions involved: 1) whether the Ordinance’s restriction on “kennels” in suburban residential zones precludes use of a two-acre residential site as an incorporated, licensed animal rescue operation, keeping between twenty-two and forty large breed dogs; and 2) whether the trial court abused its discretion to the extent it found as a fact that a one-acre fenced-in area located on the two-acre residential site was not an “area set aside” within the Ordinance’s meaning of the definition of “kennel.”

The applicable ordinance defined kennel as “Any structure, pen or area set aside for the breeding, boarding, show, grooming or keeping of dogs, cats or similar domestic animals. For purposes of this Ordinance, the keeping of five (5) or more such animals for economic gain shall be deemed a commercial kennel.” Where the words of the ordinance are ambiguous, courts construe the ordinance in favor of the landowner. Here, there was no language in the definition of “kennel” that clarified how many dogs an individual can “keep” before being designated a “kennel” under the Ordinance. Although “dogs” is written in the plural, implying two or more, the absence of a conclusive number leaves an individual guessing, without a sufficient guidepost, at what point his ownership of more than one dog qualifies as a kennel. Accordingly, because the language comprising a “kennel” was facially ambiguous it was construed in favor of Applicants as the landowners.

Kohl v New Sewickley Township Zoning Hearing Board, 2015 WL 249186 (PA Commwlth 1/21/2015)

The opinion can be accessed at: http://www.pacourts.us/assets/opinions/Commonwealth/out/126CD14_1-21-15.pdf

Tri–Cities Holdings LLC and a group of individual plaintiffs (collectively “Plaintiffs”) wanted to open a methadone maintenance clinic to treat opiate-addicted individuals in the City of Johnson City, Tennessee. Tri–Cities obtained an option to lease property in the City, but the chosen location did not meet all the requirements of a section of the City’s zoning code applicable to methadone maintenance clinics. Plaintiffs appealed the district court’s orders that (1) failed to grant their motion for a preliminary injunction barring enforcement of certain Tennessee statutes and the Johnson City, Tennessee zoning code, based on the court’s conclusion that Plaintiffs’ substantive claims are not ripe; (2) failed to grant their motion for partial summary judgment for the same reason; and (3) dismissed without prejudice their state law claims against the Tennessee state defendants. The district court found that Plaintiffs’ facial challenge to the zoning ordinance was premature, and invited them to reopen the case when Tri–Cities obtained a decision on its certificate of need (“CON”) and license applications. Tennessee Health Services and Development Agency (“HSDA”) then held a public hearing on Tri–Cities’s application for a certificate of need and denied the application.

The Sixth Circuit considered four factors in reviewing the district court’s order denying injunctive relief: whether Plaintiffs have shown a strong likelihood of success on the merits; whether Plaintiffs would suffer irreparable injury without the injunction; whether issuance of the injunction would cause substantial harm to others; and whether the public interest would be served by the issuance of the injunction. As to the likelihood of success, the court agreed with the district court that the Plaintiff’s claims were not ripe. This is because if Tri–Cities’s state administrative appeal is ultimately unsuccessful, it cannot open its clinic, and until that appeal process is complete, the court cannot reasonably determine if Tri–Cities was denied a CON due to some Catch 22 dilemma, or whether the denial was based on issues having nothing to do with Johnson City’s zoning ordinance or disability discrimination. Because the claim was not yet ripe, it was not found to have a likelihood of success.

Next the court examined, whether Plaintiffs would suffer irreparable injury without the injunction. Plaintiffs contended that individual opiate addicts lack methadone treatment, and must drive long distances to obtain that treatment. The driving of long distances, however, was not found to be irreparable harm caused by the denial, without prejudice, of their request for injunctive relief. Finally, the court found the public interest went against the granting of an injunction because the State of Tennessee and the public “have a strong interest in regulation of medical facilities consistent with Tennessee’s health plan and that a CON is granted only when the need for the facility is properly established. Accordingly, Plaintiff’s motion for a preliminary injunction was denied.

Tri-Cities Holdings LLC v Tennessee Health Services and Development Agency, 2015 WL 364004 (6th Cir. CA 1/29/2015)

The opinion can be accessed at: http://www.gpo.gov/fdsys/pkg/USCOURTS-ca6-14-05456/pdf/USCOURTS-ca6-14-05456-0.pdf

View Outdoor Advertising wanted to erect a billboard in the Town of Schererville, but had been blocked from doing so by a relatively new ordinance prohibiting all billboards. View claimed this ordinance violated its free speech rights, that it did not receive proper due process regarding its request for a variance, and that the decision of the Defendant Town of Schererville, and its Board of Zoning Appeals, to deny the variance was arbitrary and capricious. View further claimed that the ordinance violates its First Amendment right to commercial speech by banning all billboards, and that its due process rights were violated when it did not receive notice of the meeting before the Council.

A restriction on otherwise protected commercial speech is valid only if it seeks to implement a substantial governmental interest, directly advances that interest, and reaches no further than necessary to accomplish the given objective. The court noted that there was no doubt that this ordinance fulfilled its stated goal of improving the aesthetics of the Town. The sign ordinance was found to be narrowly tailored because by banning these signs, the City did no more than “eliminate the exact source of evil it sought to remedy.” Thus, the First Amendment claim was dismissed. Similarly, View’s due process claim was dismissed since it was given an opportunity to be heard and present evidence before the ZBA made its decision. Finally, because the above mentioned federal claims were dismissed, the arbitrary and capricious claim was remanded to state court.

View Outdoor Advertising, LLC v Town of Schererville Board of Zoning Appeals, 2015 WL 331940 (ND Ind. 1/22/2015)

Boni Enterprises, LLC and Country Club Acres, Inc. owned contiguous parcels of property in the Town of Clifton Park, Saratoga County. Petitioners submitted a revised application for site plan review to the Town of Clifton Park Planning Board, outlining a plan to build 74 one-family dwellings on the Boni parcel and 15 commercial buildings to be used as office buildings, warehouses and flex space on the CCA parcel. The Planning Board contended that it was unable to consider the application because respondent Steven M. Myers, the Town’s Zoning Enforcement Officer, believed that there were zoning issues with petitioners’ site plan. The Zoning Board of Appeals of the Town of Clifton Park upheld Myers’s interpretation which, determined that multiple one-family dwellings could not be constructed on Boni’s parcel. Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking review of the ZBA’s determination.

The court first noted that although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law. Petitioners argued that the word “buildings” in the last sentence of § 208–33(B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. Despite this, the court found that the respondents were correct that the words building and dwelling were not synonymous and could not be used interchangeably, because a dwelling is a subset of the broader term building. Therefore, the plain language of the Town Code, strictly construed against the municipality, was interpreted as permitting multiple buildings, including one-family dwellings, on a single lot as long as they do not exceed the density limitations. For that reason, the court found that the ZBA’s determination must be annulled to the extent that it incorrectly interpreted that portion of the Town Code.

As to the issue of notice, even though the notice given here did not state that the proposed ordinance would repeal Local Law No. 2 (1970) of the Town of Clifton Park, the notice did state that the proposed ordinance would amend the zoning ordinance in relation to two business districts and identified the geographical area that would be affected, which included the CCA parcel. Accordingly, the record establishes that the Town gave the required notice that in general terms described the proposed ordinance, and the respondents were entitled to a declaration that Local Law No. 8 was properly enacted. Finally, as the record did not reflect that the Town has adopted an official zoning map, the failure to update its zoning map, which is unofficial and available merely as a reference tool, did not affect the validity of Local Law No. 8. The court therefore reversed the dismissal of the petitioner’s claims and held that the Town Code of the Town of Clifton Park did not prohibit petitioner Boni Enterprises, LLC from constructing multiple one-family dwellings on a single lot in the B–1 district

Boni Enterprises, LLC v. Zoning Bd. of Appeals of Town of Clifton Park, 2015 WL 176221 (N.Y. A.D. 3 Dept 1/15/2015)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2015/518906.pdf

Both the Chatham County–Savannah Metropolitan Planning Commission (“MPC”) and the Mayor and Alderman of the City denied Vantage’s request to construct a wireless transmission tower. The court granted Vantage’s motion for summary judgment because of the failure on the part of the government to provide reasons for the denial of the variance, and remanded the matter back to the City with instructions to include a list of detailed reasons explaining its decision.

The Court noted that the Telecommunications Act of 1996 (“TCA”) requires that each decision denying a request must “be in writing and supported by substantial evidence contained in a written record.” At the time of the City’s decision, the Eleventh Circuit had held that a letter similar to the Letter that was provided here was sufficient. However, the United States Supreme Court recently reversed and remanded that decision, holding that “localities must provide reasons when they deny cell phone tower siting applications.” See, T–Mobile S., LLC v. City of Roswell, Ga., 2015 WL 159278 (Jan. 14, 2015). The Court noted that “in order to determine whether a locality’s denial was supported by substantial evidence, as Congress directed, courts must be able to identify the reason or reasons why the locality denied the application.” Although those reasons need not be given in the same document denying an application, “the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.” “These reasons need not be elaborate or even sophisticated, but clear enough to enable judicial review.”

The District Court noted that here, the Letter did not provide any reasons for the locality’s decision. Therefore, it was difficult for the Court to determine whether the City had violated the substantive provisions of the TCA because the City did not state its reasons for its decision. The Court could not therefore reach the question of whether substantial evidence supported the City’s decision. Although the City failed to comply with the TCA, The Court said it did not act in bad faith as it was complying with then-current law. Therefore, the Court did not grant Vantage’s request for either money damages or a writ.

Vantage Tower Grp., LLC v. Chatham Cnty.-Savannah Metro. Planning Comm’n, 2015 WL 300257(S.D. Ga. 1/20/2015)

In 1991, Hurricane Bob destroyed, leaving vacant, what was once a lawful prior nonconforming single family dwelling located on a waterfront lot in the Swifts Beach area of Wareham. In a consolidated appeal, the question presented was whether there was a right to rebuild on the property. The Massachusetts Land Court Department found that the new owner had no right to rebuild, recreate, or replace the nonconforming residential structure formerly on the property as that right had been abandoned.

Noting that Section 6 of G.L. c. 40A protects “structures or uses lawfully in existence or lawfully begun” from subsequent changes in zoning ordinances and bylaws. The Bylaws similarly protect lawfully preexisting nonconforming uses and structures in certain circumstances. These protections, however, do not apply to uses or structures that have been abandoned. While Section 6 of G.L. c. 40A permits municipalities to establish provisions that protect the right to carry out alteration or reconstruction of nonconforming structures, municipalities also are authorized to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.” G.L. c. 40A, § 6. In the instant case, Bylaw § 1341 restricts nonconforming uses abandoned or not used for a period of two years or more. The Bylaws, however, did not include a similar time limitation as to nonconforming structures. Massachusetts law distinguishes abandoned nonconforming uses from abandoned nonconforming structures. Section 6 of G.L. c. 40A did not explicitly cause current zoning requirements to apply to abandoned or unused uses or structures if a municipality has elected not to regulate in this area. Massachusetts appellate courts, however, have decided that after sufficient time passes, abandonment will apply apart from local bylaws, even if there be no specific time limit in the municipal law.

The court ruled that Bylaw § 1341 by its words applied only to uses, not structures. The court stated that Wareham Bylaws do not enumerate a period of years after which a once lawfully nonconforming structure would be considered to have been abandoned if not rebuilt. The court stated, “abandonment may be found apart from ordinance.” The court concluded that abandonment “apart from the bylaw” was applicable here.

Next the court turned to determining whether abandonment had taken place. The court stated that abandonment requires a showing of “(1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment,” and noted that “Lapse of time is not the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use.” Therefore, “an owner can by his diligent efforts have some control over a period of vacancy, and if he allows an extended time to elapse with only desultory and equivocal action in the meantime, he runs the risk of a sustainable finding of abandonment and discontinuance.” Dobbs v. Board of Appeals of Northampton, 339 Mass. 684, 687 (1959).

Other factors such as “evidence that a property has not been maintained, secured, or protected may be viewed as consistent with, if not indicative of, an intent to abandon.”
The court stated that Chiaraluce had the burden of showing that the nonconforming structure had not been abandoned, and here he failed to sustain this burden. The Court noted that an individual cannot continually let pass available opportunities to rebuild, allowing a property to lie vacant for decades, and then take advantage of a bylaw adopted by the town over fifteen years after the destruction of the original nonconforming structure.

The Court found that the original owners formed an intent to abandon rights to reestablish a dwelling structure after the hurricane’s destruction, noting that although the previous owners applied for and received a permit to reconstruct the dwelling on the property, no action was taken by the family to rebuild. Further, the sale of the property to Chiaraluce demonstrated intent to abandon rights to proceed with reconstruction of the dwelling. The owners sold the property for consideration of only $5,000. Chiaraluce admitted during testimony that the property was purchased with the intent to use it as a parking area to accommodate occupants of his residential building next door. This demonstrated an intent on the part of both the original owners and Chiaraluce not to maintain or preserve any still existing ability to reconstruct the prior nonconforming dwelling on the property.

The unexplained eight year period in which Chiaraluce repeatedly missed opportunities to reconstruct a dwelling on the property was the most clear demonstration of the intent to abandon the structure. Although the “blanket permit” rebuilding rights secured by the Olsens was still in effect in 1993 when Chiaraluce purchased the property, no action was taken to preserve or extend the permit to build. Instead Chiaraluce let the permit lapse. Chiaraluce took no action consistent with a desire to preserve the nonconforming structure for nearly eight years. By the time he did apply for a building permit, the better part of ten years had elapsed following the demolition of the hurricane-damaged cottage. The total inaction by Chiaraluce and the long stretch of years beyond the expiration of the extended permit with no real effort or resources expended in the direction of rebuilding, indicated abandonment.

The Court reiterated that with only specific exceptions, zoning regulations are used and intended to fulfill the legislative goal of “eventual elimination of nonconforming uses.” Nonconforming uses and structures are disfavored by the legislature which, subject to carefully defined statutory protections, encourages bylaws that “extinguish nonconforming uses” and structures. See Bartlett v. Board of Appeals of Lakeville, 23 Mass.App.Ct. 664, 667 (1987). In a shoreline community such as Wareham, zoning restrictions serve to mitigate adverse residential concerns such as excessive density and overcrowding.

Chiaraluce v. Ferreira, 2014 WL 7466508 (Mass. Land Ct. 12/ 31/2014)

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