City of Gulfport, Mississippi for the operation of an adult entertainment retailer. Artz already had signed a lease for commercial office space and had generated a business plan. But, the new zoning regulations prevented Hotboxxx from opening its adult business at the location where it had obtained a lease. Hotboxxx brought an action against the city, challenging the constitutionality of the city zoning ordinance, which restricted areas of town in which adult businesses could be located. The City removed the action from the Chancery Court to federal court. The federal District Court dismissed the action for lack of standing. Hotboxxx then filed an amended complaint, contending it had standing to sue because, under the Mississippi standard for standing, it had a colorable interest. The district court dismissed the case for lack of standing without prejudice, finding that, under the federal standing requirements, Hotboxxx’s claim was “speculative and hypothetical” because it was undisputed that the application was not complete.

Hotboxxx filed a new complaint in the Chancery Court, citing the same issues from in the first suit. Gulfport then filed a Motion to Dismiss under the principle of res judicata. Hotboxxx responded to the Motion to Dismiss, claiming that dismissal without prejudice did not preclude a second suit and that standing requirements are different for Mississippi. Additionally, Hotboxxx claimed that Gulfport has a ministerial duty to advise the applicant of any omissions in its application.  The Chancery Court dismissed with prejudice for lack of standing, stating that the application was incomplete. Further, under res judicata, it determined the instant case was different from the one originally filed, but all the material issues that this Court must address have already been addressed by the Federal District Court. Hotboxxx appealed.

The Mississippi Supreme Court affirmed and held that: 1) the lower court did not commit reversible error in finding that privilege license application was incomplete and invalid; and 2) the applicant’s initial status as lessor of commercial property located in area of city affected by ordinance did not create colorable interest required to confer standing.

On the matter of whether the license application was invalid, the court stated that they will not interfere with the findings of a chancellor unless the findings were “manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 166 (Miss.2011) The Chancery Court stated in its Final Judgment that it had “considered the testimony of parties and other witnesses as well as documentary proof and evidence and argument of counsel” and, further, that it had “judged and weighed the credibility and veracity of the witnesses and documentary evidence submitted” to conclude that Hotboxxx had not submitted a valid and proper application. This Court upheld the chancery court’s finding that the privilege license application was incomplete and invalid. Further, the application was missing the required signature by Hotboxxx and was not notarized or completed by a member of the General Finance Department. The instructions required the application to be signed in the presence of the General Finance Department or otherwise notarized. Artz testified he did not sign the application in the presence of the department, and it was not notarized. Thus, the application was not complete.

With respect to whether, regardless of the invalid application, Hotboxxx argued that its lease of the commercial building constituted a colorable interest, giving it standing to challenge the zoning ordinance. Hotboxxx stated that its chosen location for the business was in violation of the ordinance, and therefore, experienced an adverse effect from the enactment of the ordinance. The City argued that Hotboxxx did not have an injury because Hotboxxx submitted an improper application; therefore, regardless of the Ordinance, Hotboxxx was not able to engage in the business. The City then argued that the colorable interest claims by Hotboxxx did not prove an injury because they must be supported either with evidence found in the record or presented at trial, and Hotboxxx’s lease states it is void if it is unable to obtain a license.

Hotboxxx did not submit a valid license application, but maintained that it had signed a lease and claims it was fully registered as a business entity with a business plan. Although Hotboxxx may have been registered as a business with a business plan, the signed lease was the only evidence linking Hotboxxx to the zone of the city affected by the ordinance. The Court also has held that “Any property owner or person having an interest in property which is or may be affected by a permit or variance illegally issued or denied is an aggrieved party and may apply to the court for relief.” Belhaven Improvement Ass’n, Inc. v. City of Jackson, 507 So.2d 41, 46 (Miss.1987) The court stated that although Hotboxxx had an interest in land affected by the ordinance, when Hotboxxx failed to submit a valid application and failed to obtain a license, the lease became void, and Hotboxxx no longer had an interest in the land. Here, Hotboxxx’s lease was pendent on obtaining the appropriate licenses. The chancery court held the application for the privilege license to be invalid. Thus, the lease was void, and Hotboxxx had no interest in the land, and therefore, under Mississippi case law, no standing.

Hotboxxx, LLC v City of Gulfport, 154 So 3d 21 (Miss. 1/8/ 2015)

The opinion can be accessed at: http://caselaw.findlaw.com/ms-supreme-court/1689158.html

Landowners who lived between 1,300 and 3,200 feet from a wind turbine known as “Wind 1” that was installed on town land at its wastewater treatment facility (“WWTF”), alleged significant distress from sound pressures and noise from the operation and sought an enforcement action by the Town of Falmouth’s building commissioner asserting that the town was in violation of town’s zoning by-law by operating the wind turbine without a special permit. The building commissioner denied the landowners’ request, and they appealed. The zoning board of appeals affirmed. The Superior Court affirmed, and landowners appealed.

At trial, the landowners had argued that the building commissioner and the ZBA incorrectly interpreted the by-law to allow the issuance of a building permit for Wind 1 without a special permit, citing § 240–166 of the by-law which provides that a petitioner may apply for a special permit to allow construction of a windmill. The judge, however, deferred to the opinion of the building commissioner, affirmed by the ZBA, that the by-law “does not apply in the limited circumstance where the Town itself desires to construct and operate a windmill for municipal purposes in a district where all such purposes are permitted as of right.” The court stated that in reaching the decision that a special permit was not required, the building commissioner determined that Wind 1 is a “municipal purpose” that falls within the enumerated community service uses permitted as of right in § 240–30B of the by-law, which includes: “All municipal purposes, including the administration of government, parks, playgrounds, recreation buildings, Town forests, watershed, water towers and reservoirs, beaches, fire and police stations and armories.”

On appeal, the Court determined that as in other districts of the by-law, windmills are specifically designated in the public use district as an accessory use by special permit. Therefore it logically followed that windmills could not have been intended to fall within the more general municipal purpose as of right within § 240–30B of the by-law. Furthermore, § 240–18 of the by-law states that where an activity might be classified under more than one of the within uses, “the more specific classification shall govern; if equally specific, the more restrictive shall govern. Uses not classifiable under any category listed for the applicable district are prohibited, except that a use listed nowhere in Articles V through XIII may be allowed on special permit if the Board of Appeals determines that it closely resembles in its neighborhood impacts a use allowed or allowed on special permit in that district.” Furthermore, § 240–17 of the by-law states: “No building or structure shall be erected, altered or extended and no premises shall be used, except as provided in Articles V through XIII, the district use regulations.”

The Court noted the classification of windmills as a permitted municipal purpose failed to consider § 240–33G(5), which is part of a comprehensive scheme to include wind turbines in the by-law and control their placement and impact in the town. Courts are not to look at provisions of a by-law in isolation; they must read them contextually. Windmills were added as Art. XXXIV of the by-law by an amendment authorized by a vote of the town meeting on September 10, 1981. The public use district, identified as art. VII, was amended to include windmills as a special permit use in § 240–33G(5) of the by-law, and the ZBA is the permit-granting authority.

Because the by-law does not contain any exemption for the town from its provisions, it is apparent that the decisions of the ZBA and the Superior Court judge, which relied on an incorrect interpretation of the by-law, are not entitled to deference.

The landowners also asserted that the town failed to obey the use permit requirements in § 240–166D of the by-law which requires considerations of potential impacts on neighbors as well as safety in the operation of windmills, and it appears that many of the requirements are specific to wind turbines and are not found in local or Massachusetts building codes. The building commissioner testified that he issued a conventional use and occupancy permit and did not assert that such a permit indicated compliance with the requirements of § 240–166D. The Court held that the Town must also comply with these requirements.

Drummey v. Town of Falmouth, 2015 WL 790013 (MA App. 2/26/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/ma-court-of-appeals/1693214.html

Posted by: Patricia Salkin | April 17, 2015

EPA Releases EJ 2020 Action Agenda for Comment

From the EPA website:

EPA is seeking input on its draft EJ 2020 Action Agenda framework (PDF) (5 pp, 162K). EJ 2020 will help EPA advance environmental justice through its programs, policies and activities, and will support our cross-agency strategy on making a visible difference in environmentally overburdened, underserved, and economically distressed communities.

Strengthening our collaborations with the communities we serve, our governmental partners and all other interested stakeholders will be key to achieving meaningful outcomes in these communities.

EJ 2020: over next five years, EPA will focus on

  • Deepening environmental justice progress in EPA’s programs to improve the health and environment of overburdened communities
  • Collaborating with partners to expand our impact in overburdened communities
  • Demonstrating progress on outcomes that matter to overburdened communities

EJ 2020 is a strategy for advancing environmental justice … It is not a rule.

Under Plan EJ 2014, EPA laid a foundation for integrating environmental justice in all EPA programs, including rulewriting, permitting, enforcement, science and law. There have been many significant milestones over the last four years of building EJ into the agency’s regulatory practice, including guidance for rulewriters, enhanced public participation for EPA-issued permits, building EJ into our enforcement targeting and resolution of enforcement cases, EJSCREEN, EJ legal tools, and many others. We have also revitalized environmental justice across the federal family, assembled promising practices from our rich history of working with communities, and initiated the development of a cross-cutting Environmental Justice Research Roadmap.

The open public comment period for the draft EJ 2020 Action Agenda framework (PDF) (5 pp, 162K) will last from April 15, 2015 to June 15, 2015. We will be reaching out to many groups and communities for comment from April til June. Written comments should be sent to ejstrategy@epa.gov.

For more information or to participate in dialogue sessions with EPA, please contact Charles Lee (lee.charles@epa.gov), Deputy Associate Assistant Administrator for Environmental Justice, or your Regional or Program Point of Contact.

This draft framework for EJ 2020 outlines our thinking about the current efforts that require continued and focused attention, and what additional challenges we should undertake. We hope to have a robust dialogue with the communities we serve, our governmental partners and all other interested stakeholders on whether this framework addresses the most important work. This is just a draft; all comments and suggestions to inform and shape EPA’s EJ action agenda are invited and encouraged.

See: http://www.epa.gov/environmentaljustice/ej2020/

The Court found substantial evidence in the record supporting the Zoning Board’s conclusion that granting two requested area variances would cause increased population density from the presence of an apartment building in a neighborhood comprised of single-family homes, that the variances necessary to accommodate an apartment building would be substantial, and that the petitioners’ difficulty was self-created because they were aware of the property’s zoning classification when they purchased the property.  Because the board reviewed the appropriate statutory factors in making its determination, and rendered its determination after considering the appropriate factors and properly weighing the benefit to petitioners against the detriment to the health, safety and welfare of the neighborhood or community if the variances were granted, the action taken by the Board was not illegal, arbitrary, or an abuse of discretion. Accordingly, the appeal was dismissed and the judgment of the trial court was reversed.

People, Inc. v City of Tonawanda Zoning Board of Appeals, 2015 WL 1280303 (NYAD 4 Dept. 3/20/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_02257.htm

Steven Sherman, a real estate developer, initially filed this suit on January 12, 2012, in the Supreme Court for Orange County, New York, alleging that for over the previous decade, the Town wrongfully obstructed his efforts to develop MareBrook, a 398 acre parcel of land he purchased in 2001. Plaintiff claimed that by implementing a series of amendments to the local zoning laws that specifically targeted his project, and otherwise engaging in conduct that frustrated his ability to even begin development, the Town violated his rights to freedom of religion, freedom to petition, substantive due process, procedural due process, equal protection, and his right not to have his property taken without just compensation under the federal and New York state constitutions. Pending before the Court in this case was the Town’s renewed motion to dismiss following the Second Circuit’s reversal of this Court’s determination that Sherman’s federal takings claim was unripe.

As a preliminary matter, the Court noted that Sherman incorrectly relied on the Second Circuit’s conclusion that his takings claim constitutes a continuing violation. Under the continuing violation doctrine, where a plaintiff can demonstrate an ongoing or continuing violation of his federally protected rights, the plaintiff is entitled to bring suit challenging all conduct that was part of the violation, even conduct that occurred outside the limitations period. Under federal law, a claim arising under § 1983 accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action. The court found that in order for Sherman to be entitled to the benefit of the tolling provision of § 1367(d), Sherman I must have been dismissed pursuant to § 1367(c). Since there was no dispute that Sherman I was voluntarily dismissed pursuant to Fed.R.Civ.P. 41(a)(1) (A)(i), a circumstance not contemplated by § 1367(c), Sherman’s federal constitutional claims must have accrued on or after January 12, 2009. 

As to the retaliation claim, the Circuit Court’s opinion that the Town “singled out Sherman’s development, suffocating him with red tape” over the course of a decade to “make sure he could never succeed in developing MareBrook,” was sufficient to show that the defendants’ conduct was motivated by or substantially caused by [the plaintiff’s] exercise of speech. Evidence that Village repeatedly refused the plaintiffs’ requests to enforce zoning codes and ordinances over a nine-year period was sufficient to constitute a continuing violation. Conversely, Sherman’s due process claims did not constitute a continuing violation because they were based on discrete acts by the Town that were readily discerned by Sherman at the time the acts were taken. Finally, because Sherman’s complaints concerned the exercise of discretionary acts, the Town was entitled to immunity from his state law claims. Therefore, Defendants’ motion to dismiss was granted in part and denied in part.

 Sherman v Town of Chester, 2015 WL 1473430 (SDNY 3/31/2015)

Riverfront Development Group, LLC (Applicant) filed an application for a special exception and a variance from the City of Harrisburg Zoning Code section 7–309.16, which the Board interpreted as providing a restriction of a maximum of two units per lot, in order to erect two, two-unit rental apartment buildings and to waive portions of the setback and accessory parking requirements. Riverfront appealed from an order of the Dauphin County Court of Common Pleas, affirming the decision of the City of Harrisburg Zoning Hearing Board that denied Applicant’s variance and special exception application.

The Applicant first argued that the Board abused its discretion in interpreting the Zoning Code contrary to its plain meaning. Section 7–309.14(a) of the Zoning Code permits the construction of “one or two-family detached dwellings having a floor area of four hundred (400) square feet or more for each family” in an RLB so long as the buildings are in conformance with the remainder of the Zoning Code. The Board argued that, in interpreting its own ordinance, the language of the Zoning Code prohibits the construction of more than one two-family unit per lot in an RLB.  However, the Applicant asserted that section 7–309.14(a) allows for the construction of as many units as feasible within the dimensional restrictions of the Zoning Code, so long as the units are one- or two-family. The court found that the Board had an obligation to construe the words of an ordinance as broadly as possible to give the landowner the benefit of the least restrictive use when interpreting its own Zoning Code, and any doubt must be interpreted in favor of the landowner. Thus, the Board improperly read into the Zoning Code a rule that there may only be one dwelling per lot. Accordingly, the court held that the Board abused its discretion in denying Applicant’s variance and special exception application on the grounds that Applicant’s proposal to build two dwellings on one lot was not in accordance with the Zoning Code, and reversed the trial court.

Riverfront Development Group, LLC v City of Harrisburg Zoning Hearing Board, 109 A.3d 358 (PA Commwlth 1/30/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1690961.html

Plaintiff Safe Harbor Retreat, LLC proposed  an “executive retreat” for persons suffering from alcoholism and other forms of substance abuse.  Senior Building Inspector Thomas Preiato determined that Safe Harbor met the criteria of “functioning as a family unit” pursuant to sections 255–1–20 (Family) and 255–8–50 (Occupancy by a family).  As a result of BI Preiato’s determination, Safe Harbor claims to have expended significant funds and effort to establish the Premises as a community residence. BI Preiato then reversed his position to Safe Harbor, informing Safe Harbor that it was operating an unauthorized “Semi–Public Facility, in a residential district,” and that, pursuant to Town Code, a “Special Permit” is required. Rather than seek a special permit from the Town’s Planning Board, Safe Harbor instead filed an “Application” to the Town’s ZBA to “appeal” BI Preiato’s determination, claiming that its residents continue to be treated as the functional equivalent of a family, apparently to relieve it from special permit and variance requirements of the Town Code.

According to the Town, Safe Harbor was required to obtain a “final decision” from the Town on its request to operate at the Premises, but failed to do so because it never applied for a special permit from the Town. The federal district court therefore found that because of Safe Harbor’s failure to seek a special permit, the Town has not rendered a final decision regarding Safe Harbor’s use of its Premises; nor has the Town had the opportunity to make an accommodation through the Town’s “established procedures used to adjust the neutral policy in question,” namely, special permit and variance procedures. Accordingly, the Court found that this action was not ripe, and dismissed it without prejudice.

Safe Harbor Retreat, LLC v Town of East Hampton, 2015 WL 918771 (EDNY 3/2/2015)

Plaintiffs David Witt and Kinuyo Gochaku Witt brought an action against the Village of Mamaroneck and Building Inspector Robert Melillo pursuant to 42 U.S.C. § 1983.  The action arose from the legal requirements Defendants imposed on Plaintiffs in connection with their efforts to repair their home in the aftermath of Hurricane Irene.  Plaintiffs maintained that similarly situated homeowners were not subjected to the same treatment, which therefore constituted a violation of their equal protection and substantive due process rights under the Fourteenth Amendment.  Plaintiffs also alleged a Monell claim against the Village. These claims were dismissed, and the Plaintiffs were given leave to amend their complaint. The Amended Complaint consisted of equal protection, substantive due process, and procedural due process claims, along with a Monell claim against the Village and various claims for relief under state law.

Here, Plaintiffs did not allege that other damaged properties had a similar market value and required the same relative dollar amount of repairs. Furthermore, beyond the houses located on their street block, Plaintiffs did not make any allegations with respect to the market value of the other homes identified in the SAC, and the SAC was silent as to whether the other homeowners on Plaintiffs’ block spent the same, or even a similar amount, on repairing their homes. Since Plaintiffs failed to allege differential treatment from similarly situated individuals, their equal protection claim was dismissed. The failure to establish other similarly situated property owners also led to the dismissal of the Plaintiffs’ “class of one” and selective enforcement claims.

As to the due process claims, the court found that even if Plaintiffs had carried their burden of establishing the deprivation of a cognizable property interest, it was doubtful that Defendants’ acts against their land were arbitrary, conscience-shocking, or oppressive in the constitutional sense, and not merely incorrect or ill-advised.  Here, under Chapter 186 of the local code, a homeowner may appeal the application of Chapter 186 by the building inspector to the Board.  The court found that to the extent that Defendants genuinely believed that Plaintiffs were subject to Chapter 186, they were within their right to enforce it. Finally, the court held that a Monell claim cannot be made absent an underlying constitutional violation; a §1983 claim can only be brought against a municipality if the action that is alleged to be unconstitutional was the result of an official policy or custom. Because Plaintiffs did not establish a constitutional violation, their Monell claim also failed. Accordingly, the Defendants’’ motion to dismiss was granted.

Witt v Village of Mamaroneck, 2015 WL 1427206 (SDNY 3/27/2015)

The opinion can be accessed at: http://www.village.mamaroneck.ny.us/pages/mamaroneckny_attorney/Witt%20033114.pdf

Frontier, a private developer, filed an application with the Town to rezone the Property from a mobile home park to a five hundred (500) residential unit with one (1) and two (2) bedroom apartments and up to forty-five thousand (45,000) square feet of retail space. On December 29, 2011, the Town Board of the Town of Babylon granted Frontier’s application to change the zoning from E Business and B Residence to Multiple Residence use, subject to various conditions and covenants under Resolution 743. By Resolution Number 551, the Town Board of the Town of Babylon adopted the relocation plan (“Plan”) for mobile homes and households on the Property, subject to the approval of the Town Attorney. The Plan provides for a maximum of twenty-thousand dollars ($20,000) per household in relocation assistance, limited to residents in a household who: (1) actually occupy a unit; (2) are in good standing; (3) submit, to the Independent Relocation Consultant, the name and contact information of the resident who will receive the relocation assistance on behalf of the household; and (4) vacate the premises within ninety (90) days of receiving a notice to vacate. The complaint alleges that defendants violated: (1) the Fair Housing Act, 42 U.S.C. § 3601 et seq.; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1982; (4) 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment; and (5) 42 U.S.C. § 3608 and its “affirmatively furthering” obligations.

Frontier contended that this case should be dismissed for lack of subject matter jurisdiction because plaintiffs’ claims were based upon the incorrect premise that the relocation plan required Frontier Park residents to sign a release giving up their “rights” to the one-hundred (100) affordable/workforce units. The complaint, however, contained no allegations that any plaintiffs executed the documents associated with the Relocation Plan, nor did it allege that plaintiffs applied for the affordable/workforce housing units which were denied based upon their agreement to the Plan. The court found that plaintiffs could not plausibly allege that execution of the Plan documents foreclosed any “right” to the affordable housing because the Plan contains no such provision; nor could plaintiffs allege that they applied for and were denied affordable/workforce housing as a consequence of agreeing to the Plan’s terms.

The court held that the complaint contained allegations wholly unsupported by the public record and by the documents upon which it is based and which have been included in, or affirmatively omitted from, its exhibits. The court found that the improper conduct was willful as Resolution 494 did not nullify Resolution 743 and none of the documents attached to plaintiffs’ complaint confer any rights to the affordable/workplace housing, or foreclose plaintiffs from applying for such housing, as a consequence of agreeing to the Plan. Accordingly, Frontier’s motion to dismiss for lack of subject matter jurisdiction was granted, plaintiffs’ complaint was dismissed with prejudice, and Frontier’s motion for Rule 11 sanctions was granted.

Amityville Mobile Home Civic Ass’n v. Town of Babylon, 2015 WL 1412655 (E.D.N.Y. 3/26/ 2015)

The Zoning Board of Appeals of the Town of Brookhaven denied the petitioner’s application for an area variance to maintain an accessory apartment on the subject premises.  The trial court upheld the denial and the petitioner appealed.  Judicial review is limited to ascertaining whether the action taken was illegal, arbitrary and capricious, or an abuse of discretion.  In reaching its decision, the Zoning Board of Appeals of the Town of Brookhaven engaged in the balancing test prescribed by Town Law § 267–b(3)(b). The court found that the ZBA’s conclusion that the grant of the variance would produce an undesirable change in the character of the neighborhood and a detriment to nearby properties was based on the testimony of the attendees at the public hearing and the ZBA’s own familiarity with local conditions. Furthermore, it found that the hardship alleged by the petitioner was self-created, for zoning purposes, as the petitioner acquired the property subject to the restriction. Finally, it was not arbitrary and capricious for the ZBA to have concluded that there was a feasible alternative to the variance, as the petitioner could have easily reduced the size of the accessory apartment. The court therefore affirmed the dismissal of petitioner’s claims.

Hatgis v DeChance, 2015 WL 894771 (NYAD 2 Dept. 3/4/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D44506.pdf

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