The County of Sarpy revised an overlay zoning ordinance to exempt properties platted before the effective date of the original ordinance. In effect, the overlay ordinance imposed additional regulations on land along a specified road corridor. An owner of nonexempt property sought a judgment declaring the exemption unconstitutional as special legislation. The District Court, Sarpy County, entered judgment for county, and the owner appealed.

In considering whether the exemption in the revised ordinance is special legislation, the court first considered whether it created a closed class. The court reasoned that because the real property was alienable, the composition of any class consisting of owners of property in a certain area is subject to constant change. Because the future transfer of property within the exemption’s geographic area was probable, the class was not closed.

The court next addressed the issue of whether the class benefited by the exemption was arbitrarily selected. Here, the evidence established substantial differences between those exempted and those who were not. Only those property owners who filed a plat prior to enactment of the overlay ordinance were exempt. Because the submission of a plat application entails significant expense and planning, to subject those property owners to the design requirements contained in the overlay ordinance after they had already submitted a plat based on the absence of those design requirements would be harsh and unfair. Thus, limiting the exemption to those property owners who had completed the process of actually submitting a plat was a reasonable distinction. Because the exemption was not unconstitutional special legislation, the court affirmed the district court’s judgment.

Dowd Grain Company, Inc. v County of Sarpy, 2015 291 Neb. 620 (NE 8/14/2015)

Posted by: Patricia Salkin | October 6, 2015

NY Launches Geographic Information Gateway

Thanks to Touro Law Professor Sarah Adams- Schoen who posted on the Institute on Land Use and Sustainable Development Law Blog:

The New York Department of State just launched the New York Geographic Information Gateway – . The Gateway is a new educational, interactive and user-friendly website that identifies New York’s diverse land and offshore assets. It provides the public access to free and reliable geographic data, including over 400 datasets, a map viewer and interactive stories describing how the NY Department of State’s Office of Planning and Development uses geospatial information in its planning and development efforts. It offers real-time information, interactive tools, and expert knowledge on New York’s resources, including climate change and community resilience.

As described in the Secretary of State’s press release ( , the Gateway will empower residents, businesses and local governments to improve resiliency, grow the economy and invest in New York State Communities.

Join us on December 11th at the NYS Judicial Institute at Pace Law School in White Plains for the Land Use Law Center’s annual Land Use & Sustainable Development Conference. This year’s theme: Reflecting on the Past, Planning for the Future: Celebrating 100 years of Zoning.

The conference will discuss transformative land use, zoning, and sustainable development laws and policies that are shaping communities in the Tri-State Region, as they respond to current challenges. Conference panelists will use zoning’s centennial as a broad framework to discuss various land use topics and their promise for the future. The Conference will bring together national, regional, and local land use experts to highlight how communities are transitioning towards sustainability, disaster recovery, and revitalization.

Governor Parris N. Glendening, President of Smart Growth America’s Leadership Institute, will be our keynote speaker. Our morning plenary will include Don Elliot, FAICP, Dwight H. Merriam, Esq., Professor John R. Nolon, Dean Patricia E. Salkin, and Professor Michael A. Wolf .

Conference participants can earn CLE, APA-CM, and New York State planning and zoning training credits.

This year’s conference is dedicated to the legacy of Alfred B. DelBello, who was instrumental in creating many significant and lasting land use initiatives during his tenure as Mayor of Yonkers, Westchester’s County Executive, New York’s Lieutenant Governor, and as an innovative legal practitioner: a career of over four decades of innovation and accomplishment.


· Planning Ethics in a Changing Environment (for Professional Planners)

· Ethics for Attorneys

· Driving to a New Destination – Strategies for Reducing Car Use in Low Density Areas

· Facilitating Clean Energy Deployment through Local Land Use Law Reform: A Detailed Roadmap

· Integrating Sustainability in Policy, Planning and Zoning

· Retooling Economic Engines: Building Waterfronts for the 21st Century

· Missing Middle Housing: A Key to Affordable Walkable Neighborhoods

· Trends in Zoning: Changing Downtowns & Retrofitting Office Parks

· Case Law Update

· Forecasting the Future

October 22, 2015
1:00 – 2:30 PM ET

CM 1.50
L 1.50
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning for Religious Uses Under The Religious Land Use & Institutionalized Persons Act on Thursday, October 22, 2015 from 1:00 to 2:30 PM ET. Registration is $20 for PLD members, $40 for nonmembers, and $45 for the webinar and PLD membership.

Enacted in 2000, the Religious Land Use & Institutionalized Persons Act (RLUIPA) has significantly affected the ways in which local governments plan for religious uses. In some cases, local governments have capitulated under the threat of RLUIPA litigation. In many others, local governments have instead vigorously defended their comprehensive plans of development and review of religious land use applications against such claims. The presenters, who advise local governments and represent religious land use applicants, will explain several different strategies and approaches that can be used to avoid RLUIPA litigation, including through revisions to local zoning codes and accommodating religious uses when appropriate. The presenters, all with RLUIPA litigation experience, will also discuss the different types of RLUIPA claims, the life of an RLUIPA case from start to finish, and approaches that they have found successful.

Speakers include: Daniel P. Dalton, Dalton & Tomich, PLC (Detroit, MI); John B. Murphey, Rosenthal, Murphey, Coblentz & Donahue (Chicago, IL); Noel W. Sterett, Mauck & Baker, LLC (Chicago, IL); and Evan J. Seeman, Robinson & Cole, LLP (Hartford, CT).

Register here:

In 1993, the Patereks, owners of PME, an injection molding company, sought to relocate their business within Macomb County, Michigan to the Village of Armada. The Patereks found a former high school auto shop that suited their needs and they purchased the building. The garage, however, was located in a neighborhood with zoning restrictions that limited commercial activity to “general business,” and injection molding was classified as a “light industrial activity.” The Patereks could commence operations at the garage only if they first obtained a Special Approval Land Use permit (“SALU”) by successfully petitioning the Village of Armada Planning Commission. Plaintiffs John and Cynthia Paterek, along with their company Paterek Mold & Engineering, Inc. (“PME”), appealed the district court order granting summary judgment in favor of Defendants Ben Delecke, Commissioner of the Village of Armada Planning Commission, and the Village of Armada (collectively “Defendants”), in this § 1983 action. Specifically, Plaintiffs appealed the adverse judgment on their First Amendment retaliation, substantive and procedural due process, and equal protection claims. Plaintiffs also appealed the district court’s decision to dismiss two motions seeking to hold Defendants in contempt of court.

In Plaintiffs’ retaliation claim, the letter from the Village Council threatening Paterek’s removal from the DDA chairmanship, in concert with the timing of his removal from the DDA following shortly after his dispute with the Planning Commission, constituted strong circumstantial evidence of a retaliatory motive. The Village’s disparate treatment of Paterek during the outside storage dispute and Delecke’s strained reading of the SALU to prohibit a barbeque grill from a lunch area under the theory that it constituted “outside storage of any materials, supplies, or parts” provided additional circumstantial evidence that, when considered together, was sufficient for the court to preclude summary judgment. Likewise, as to the substantive due process claim, the court found a reasonable jury could find that Defendants acted arbitrarily and capriciously in deciding to: issue outside storage citations based on Paterek’s barbeque grill; seek prosecution against Paterek for his failure to apply for a new SALU; and issue Paterek a COO that restricted his operating hours beyond that authorized by his pre-existing SALU for the workshop. This was due in large part to Delecke admitting to handling Paterek in a different manner than other business owners; and Delecke’s assertion that a barbeque grill (situated next to an authorized lunch area) constituted outside storage strains credulity. Moreover, the decision to withhold Plaintiffs’ building permits for the apartment until Plaintiffs applied for a new COO at the workshop, in the Building Inspector’s own words, was odd.

Plaintiffs’ sole contention on their procedural due process claim was that they were not afforded any notice with regards to the Planning Commission meeting where Delecke threatened to revoke Plaintiffs’ SALU and warned that Plaintiffs would be ticketed if they failed to conform to Delecke’s understanding of what items constituted outside storage. However, this claim failed since their SALU was not actually revoked.

On their Equal Protection claim, Plaintiffs showed a number of incidents concerning businesses that were allowed to operate without a COO, or were issued a COO after a failed inspection, or were not subjected to inspection prior to being granted a COO when the business had previously been operated under different ownership. Because a jury could reasonably find, that PME was treated differently, not on account of any rational basis, but instead due to animus, this claim survived summary judgment. Finally, viewed in the light most favorable to Plaintiffs, the facts suggested that Delecke used his government post to harass and retaliate against Plaintiffs by causing tickets to be issued and by denying Plaintiffs the rights bestowed to them under their SALUs. Thus, Delecke was not entitled to qualified immunity. Similarly, the court found that the Village could also be found liable under a theory of municipal liability.

Paterek v Village of Armada, 2015 WL 5210554 (6th Cir. CA (MI) 9/8/2015)

Philip M. Behe (“Matt Behe”) and his father, Philip L. Behe, purchased through North Carolina Special Warranty Deed property consisting of a 101.76 acre tract, which Matt Behe wished to subdivide approximately two acres out of the parent tract for a kennel to be used as a bird-dog training facility. Matt Behe owned Rocky River Gun Dogs, LLC, which has trained world and national championship bird dogs. On 5 September 2012, Matt Behe and his wife, Megan Behe, filed an application with Rockingham County to rezone the two-acre tract from Residential Agricultural to Highway Commercial—Conditional District. The application was approved by the Rockingham County Board of Commissioners (BOC). On 24 October 2013, plaintiffs, Good Neighbors of Oregon Hill Protecting Property Rights and Ashley M. Wyatt (“Neighbors”), sought a preliminary injunction and a declaratory judgment in superior court that the rezoning ordinance adopted by the BOC was void and of no legal effect. The Superior Court, Rockingham County, granted summary judgment for Neighbors, and the county appealed.

The North Carolina trial courts must consider whether the zoning activity in the case constituted spot zoning; and if so, whether the zoning authority made a clear showing of a reasonable basis for the zoning. The trial court determined that because Matt Behe was the sole owner receiving a special benefit, this was a spot zoning case; however, the tract of land in question was not owned by a single person when the application for rezoning was filed and when the BOC made its determination, rather it was jointly owned by Philip Behe and Matt Behe. Accordingly, the court held the rezoning did not constitute spot zoning as North Carolina courts have defined it. Furthermore, the trial court’s scope was to review the BOC’s decision to see if it was supported by the evidence, and not to weigh the evidence presented by one party and then make a finding that there was “a strong potential” for certain negative outcomes if the zoning change were upheld. Accordingly, the court reversed the trial court’s order and remanded for a new summary judgment hearing.

Finally, the trial court’s order held that the Applicant began excavation and installation of the structure intended for use under the rezoning before securing the zoning permit from the defendant as specifically prohibited under the Zoning Ordinance at Section 15–2(a). However, there was no evidence that Matt Behe, as applicant, failed to obtain or comply with all required permits and approvals. Accordingly, the court found that because the case did not involve spot zoning, the burden was on plaintiff to show that the zoning change was invalid. The case was therefore reversed and remanded.

Good Neighbors of Oregon Hill Protecting Property Rights v County of Rockingham, 774 S.E. 2d 902 (NC App. 7/21/2015)

Kathryn Mills and her husband, Luke Dellmyer, sought to operate a horse farm and riding business on the subject property, which was a permitted use in an RA zoning district. The subject property is bordered entirely by a 40–foot tree line, another tree line essentially bisects the subject property, and is encumbered by an extensive utility easement. In this zoning appeal, David Tidd (Objector) challenged whether the Lower Saucon Township Zoning Hearing Board erred in granting Green Gables Investment Partners, LP’s (Applicant) request for a dimensional variance from the Lower Saucon Township Zoning Ordinance’s requirement that all areas used to corral or pasture horses be at least 100 feet from all lot lines.

Objector first argued that, although Applicant asserted the trees on the subject property constitute a unique physical characteristic causing hardship, Applicant did not show, how the trees were in any way unique to the subject property. The court noted that in establishing hardship, an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose. Here, there was an approximately forty-foot tree line around the entire border of the subject property and another tree line that passed through the middle of it. Dellmyer indicated that the tree line acted as a physical hardship to the subject property because it significantly limited the usable area barring the financial and environmental detriment of significant tree removal. Thus, placing the combined pasture and perimeter fence at the 100–foot setback would create approximately 6.5 acres of unusable land. Dellmyer’s testimony was not challenged or contested before the ZHB, and as a result the court found that the determination that Applicant had demonstrated an unnecessary hardship to warrant granting the variance request from the 100–foot setback was supported by substantial evidence in the record.

Tidd v Lower Saucon Township Zoning Hearing Board, 118 A. 3d 1 (PA Cmwlth 5/29/2015)

Premier Tierra Holdings, Inc., owned a tract of property in the Village of Tiki Island, located in Galveston County. Premier desired to develop or sell the property for a mixed-use marina development, so it filed a declaratory judgment action against the City seeking a determination of its vested rights under chapter 245 of the Texas Local Government Code. Premier asserted that chapter 245 required the City to consider the approval of an application for a permit solely on the basis of the regulatory scheme existing at the time the first plat application for a project is filed, and therefore certain provisions of the City’s zoning ordinance could not be applied to its project because Premier filed its plat application before the City approved the ordinance. Premier sought a declaratory judgment action against the City, and the 212th District Court, Galveston County, denied city’s plea to the jurisdiction.

The court noted at the outset that chapter 245 contains a number of exemptions from its operation, including certain municipal zoning regulations and other specified land use regulations. Under it, a city also may require compliance with technical requirements relating to the form and content of a permit application in effect at the time the application was filed, even though the application is filed after the date an applicant’s rights accrue. The City argued that Premier never appealed the denial of its plat application, and did not challenge the City’s denial in this lawsuit. Because the project could not go forward, the City argued any request for declaratory relief would be moot. Although the court agreed with the City that Premier failed to present a justiciable controversy, it disagreed that Premier’s claims failed on two separate and distinct grounds of mootness. Alternatively, the court concluded that Premier’s request for declaratory relief failed to present a justiciable controversy because the record did not disclose the reasons why the City denied the 2010 plat application; Premier had never requested that the City certify the reasons for the denial; no plat or permit applications had since been denied for any specified reasons; and Premier had not challenged the City’s denial of its plat application in this or any other proceeding.
Here, the court found Premier’s failure to request the City to certify the reasons for its denial of the 2010 plat application, its failure to seek any further plat or permit applications that could have been challenged if denied, and its calculated refusal to challenge the denial of the 2010 plat application as “irrelevant” effectively precluded the trial court from considering and determining the basis for the City’s disapproval of Premier’s plat application. The court therefore sustained the City’s plea to the jurisdiction, and rendered judgment dismissing Premier’s case without prejudice.

Village of Tiki Island v Premier Tierra Holdings, Inc., 464 S.W. 3d 435 (TX App. 5/5/2015)

Kay Loring owned a small parcel of land located in a residential area of the City of South Portland. Because of its size, the lot was nonconforming until 1973, when the City issued a variance that brought it into dimensional conformity. Based on the 1973 variance, in 2013 the City’s Building Inspector issued a building permit to Loring, authorizing her to construct a single-family house on her lot. Mary E. Campbell and Maureen and Edward Conroy (collectively, Campbell), who own nearby lots, appealed the issuance of the permit to the South Portland Board of Appeals, which affirmed the Building Inspector’s action. The Superior Court affirmed the Board’s decision. On appeal, Campbell argued that the evidence presented to the Board did not support its findings about the size of the lot and the existence of a variance; that the 1973 variance is no longer effective; and that the building permit is not lawful because the proposed development would exceed the density restrictions for that zoning district.

Because neither Loring nor her predecessors in title actually built on the lot within two years of the issuance of the variance in 1973, Campbell argued that the variance expired and was no longer in effect, Loring’s lot reverted to one that is treated as having an area of 4,703 square feet, and the Building Inspector therefore was without authority to issue the permit. However, the variance was only as to the size of the lot. Since section 27–302 did not apply to a dimensional variance, the two-year expiration period created in that provision was inapplicable. Campbell next argued that the building permit was improperly issued because the proposed permitted development on Loring’s lot will violate the density limitations prescribed in section 27–534 of the City’s ordinance. However, because Campbell did not properly present this challenge to the Board, it was not preserved for judicial review. Accordingly, the judgement of the Superior Court was affirmed.

Campbell v City of South Portland, 2015 WL 5255482 (ME 9/10/2015)

Rancho de Calistoga (“the Park”) is a mobile home park located in Calistoga, California, which encompasses 26.5 acres, was originally developed by Hal C. Aguirre and R.C. Roberts. When the Roberts and Aguirre partnership dissolved in the mid–1970’s, one of the parcels was transferred to Aguirre, who formed Rancho de Calistoga (“Rancho”). The City of Calistoga had no form of mobile home rent control until 1984, when the City adopted an ordinance that enabled mobile home park tenants to challenge rent increases. The ordinance authorized a yearly rent increase equal to the lesser of 100% of the percent change in the Consumer Price Index or 6% of the base rent. In 2010, Rancho decided to notice a rent increase from $471.39 to $625 per month, but an administrative hearing officer, W. Scott Snowden, issued a decision in which he rejected Rancho’s request and instead allowed a rent increase to a total of $537.59 per space per month. Rancho filed a Petition for Writ of Administrative Mandamus in the Napa County Superior Court against the city and administrative hearing officer, asserting regulatory takings and separate “as-applied private takings” challenges to city’s mobile home rent control ordinance, as well as due process and equal protection claims against officer. The United States District Court for the Northern District of California, granted city’s motion to dismiss.

As to the as-applied regulatory takings claim, Rancho argued that even if the taking was for a public purpose, the rent subsidy should be paid by the government if the rent is neither excessive nor the result of monopoly power. The court found, however, that the argument was in fact just another formulation of a facial attack on the ordinance. Even if the claim were cognizable through an as-applied attack, the court found it would fail because it was not a regulatory actions that was functionally equivalent to a classic taking in which government directly appropriates private property or ousts the owner. Even though Rancho claimed the diminution in market value from $16,580,000 to $11,850,000 under rent control, or 28.53%, as well as lost income, the court found this economic impact was an inevitable consequence of the rent-control scheme but not an unconstitutional one. Rancho also filed a separate “private takings claim,” arguing that the application of Ordinance 644 to rent increases constituted an unconstitutional private taking because any purported “public use” is pretextual. However, this argument failed because it was simply a reframing of a facial challenge to the ordinance through an attack on the stated purposes of the rent-control scheme.

Rancho’s equal protection claim was analyzed under the rational basis review because mobile home park owners are not a suspect class. Here, the ordinance articulated just distinguishing characteristics, including the potential hardship posed by rent increases and the fact that mobile home park residents “are in a unique position in that they have made a substantial investment in a residence for which space is rented or leased” and the associated relocation costs. Furthermore, there was no evidence that Snowden’s decision was politically motivated or otherwise arbitrary. Accordingly, the court affirmed the district court’s dismissal of Rancho’s due process and equal protection claims.

Rancho De Calistoga v City of Calistoga, 2015 WL 5158703 (9th Cir. CA (CA) 9/3/2015)

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