Editor’s Note: The posting below originally appeared on the Rocky Mountain Sign Law Blog.

A federal court in Illinois denied a request for a preliminary injunction against the City of Chicago’s recently-enacted short-term rental ordinance.  In its order, the court determined that the ordinance, which seeks to regulate individuals’ rental of units on Internet-based services such as Airbnb, VRBO, or HomeAway, did not affect the plaintiffs’ First Amendment rights to free speech.  The decision marks an interesting constitutional development in continued efforts by local governments to regulate short-term rentals.

In summer 2016, Chicago enacted what it calls the “shared housing ordinance,” or SHO.  The SHO requires hosts of units available for short-term rent to register their housing units with the city prior to listing their units on any Internet-based services.  Airbnb, VRBO, HomeAway and other services are also required to register with the city.  As applied to individuals, the SHO imposes requirements on the services provided by the short-term rental, and also requires individuals to maintain guest registries, and post their licensing information at the unit.

The plaintiffs in the case, including a group that advocates for short-term rentals and individuals who rent units on Airbnb, VRBO, HomeAway, or other platforms, filed suit against the city challenging the licensing and other regulations.  The complaint included claims alleging that the SHO was an unconstitutional prior restraint on speech, that the regulations constitute compelled speech, and was a content-based restriction on speech, all in contradiction of the First Amendment.

On a motion for preliminary injunction, the court squarely rejected the plaintiffs’ First Amendment claims.  The resulting order distinguished between First Amendment-protected speech and commercial activity.  Quoting the Supreme Court’s decision in Sorrell v. IMS Health, the court stated, “[R]estrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct . . . .  [T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”  In the court’s eyes, the plaintiffs had not established that their activities were anything but commercial activity, and that there was no expressive component to the short-term rental business.  The plaintiffs argued that their activities constituted speech because online platforms such as Airbnb gave them opportunities to meet new friends, learn about different cultures, and show visitors around their city.  But the court found instead that a short-term rental arrangement is a commercial transaction and, if such a transaction constituted First Amendment-protected speech, there could be no distinction between free speech and any other commercial transaction that involves interpersonal interaction.  Per the court: “That some hosts or licensees also derive a social benefit from home sharing makes no difference to the dispositive question of whether the SHO regulates economic activity.”

The court’s decision in Livable v. City of Chicago offers yet another development in the law relating to short-term rentals.  Many local governments have quickly established regulations of these new short-term rental forums in order to address some of the land use and business impacts of the “sharing economy.”  This decision, along with other recent decisions, suggests that courts have little patience for creative First Amendment challenges to these regulations.

Keep Chicago Livable v. City of Chicago, No. 16 C 10371, 2017 WL 955421 (N.D. Ill. Mar. 13, 2017).

This appeal arose from the Circuit Court for Anne Arundel County’s entry of a declaratory judgment in favor of appellee, Anne Arundel County, as to all counts and claims stated in a class action complaint filed against it by appellants, William Dabbs, Sally Trapp, Samuel Craycraft, and Roberta Craycraft, “individually and on behalf of all others similarly situated.” Appellants sought refunds of impact fees that, following the fiscal year (“FY”) of collection, were not expended or encumbered within six FYs. The circuit court entered judgment in the County’s favor, ordering that appellants “take nothing in this action.” The court also denied appellants’ motion to revise class definition, as well as their motion for an accounting of County impact fee collections, expenditures, and encumbrances.

Pursuant to the authority set forth in Chapter 350, Acts of 1986, and codified in Subtitle 2 of Title 11 of Article 17 (the “Impact Fee Ordinance”) of the Anne Arundel County Code, the County can impose impact fees for the purpose of requiring new development to pay its proportionate share of the costs for land and capital facilities necessary to accommodate development impacts on public facilities. Appellants first argued that the circuit court erred in determining that the rough proportionality test, or the rational nexus test, had no application to the development impact fees in this case. The court found that the impact fees at issue were imposed by legislative enactment, and did not require landowners to deed portions of their property to the County. Moreover, appellants could not claim that the impact tax compelled property owners to suffer physical invasions of their properties, or “denied all economically beneficial or productive use of land.” Accordingly, the circuit court did not err or abuse its discretion in declining to apply the rough proportionality or rational nexus test to the County’s impact fees.
Appellants contended that the retroactivity of Bill 27-07 interfered with their vested rights, and that impact fee refunds were due. Here, the court found that Bill No. 27-07 did nothing more than codify the County’s procedure, and did not retroactively change County law or policy or purport to take away an accrued cause of action for refunds. As such, the calculation of refunds with consideration of encumbrances pursuant to the County’s procedure in Bill No. 27-07 did not interfere with vested rights. Appellants next argued that the County knowingly violated the Impact Fee Ordinance by denying them a refund of $9.9 million: the amount the County transferred from the General Fund to the Impact Fee Fund to replace fees that were improperly spent on ineligible projects. The record indicated that in FY 2008, the County credited the Impact Fee Fund for the expenditures that the circuit court had determined were improperly spent on projects ineligible for impact fee use, totaling $9.9 million. The court found that no statute authorized a refund of money transferred from the General Fund to the Impact Fee Fund to replace funds erroneously expended. Thus, the court rejected appellants’ contention that they were entitled to a $9.9 million refund.
Appellants’ next contention was based on the County Council’s enactment of Bill No. 96-01, which authorized the County to use impact fees for temporary classroom structures provided they expanded the capacity of the schools to serve new development. Appellants argued that this change in policy was simply “the County’s attempt to prevent the refund of impact fee expenditures.” Furthermore, they argued that Bill No. 96-01 violated the rational nexus doctrine, effected a taking, and was preempted by State regulation. The court likewise rejected this claim, finding that nowhere in the State definition of SRC prohibited the County from applying a definition of capacity for purposes of determining the scope of its use of impact fees broader than the definition used by MSDE for school finance purposes.
Appellants lastly argued that Bill No. 71-08, which prospectively repealed the impact fee refund provisions previously set forth in § 17-11-210, interfered with their vested rights to impact fee refunds in violation of the contracts clause and takings clause of the United States Constitution. Specifically, they argued that Bill No. 71-08 “operates as a substantial impairment of a contractual relationship between the County and special taxpayers” and “is facially unconstitutional for it violates the rational nexus doctrine by eliminating the County’s burden to demonstrate a need for the collection of impact fees.” The court noted that pursuant to § 17-11-210(b), the County was required to determine whether impact fees were available for refund within 60 days following the end of the FY. As such, a claim for a refund of impact fees collected in FY 2003 could not be ripe until August 29, 2009. As this date was after the effective repeal date of January 1, 2009, the court held that the circuit court correctly ruled that appellants were barred from claiming fees collected after 2002, and that they had no vested right that precluded the repeal.
Dabbs v Anne Arundel County, MD, 2017 WL 1180542 (MD 3/30/2017)

Riverside Meadows I, LLC was owned by Fouzia Shahnawaz, and the property she owned was managed by her husband, Shawn Zamir. The property was constructed in the 1920s as a convent and had fourteen bedrooms plus some common areas. At the time relevant to this appeal, Riverside had rented out the rooms in this building to eleven adults. Riverside provided meals, laundry service, and light housekeeping for the residents. The property was zoned as M-1 (low density multifamily residential). As such, the City of Jeffersonville notified Riverside that its use of the Property was in violation of the City’s zoning ordinances. Riverside filed an application for a use variance with the BZA, seeking to operate the Property as a “rooming house.” The City of Jeffersonville’s Board of Zoning Appeals members denied Riverside’s request for a variance, and the Clark Circuit Court denied Riverside’s petition for judicial review of the decision of the BZA.
On appeal, Riverside claimed that the findings of fact entered by the BZA were merely recitations of the relevant statutory language and therefore insufficient. The BZA argued that the statute merely required “written findings of fact,” not specific written findings of fact, and that its bare-bones “findings” satisfied this requirement. In the portion of the form used by the BZA to record its findings, the space left for specific findings was left blank. Accordingly, the court found that the BZA’s “findings” were nothing of the sort required to permit adequate judicial review of the BZA’s decisions. Additionally, there was no provision in the BZA’s “findings” that incorporated the minutes of the BZA’s hearing on this matter. While some of the minutes contained summaries of the testimonies and arguments of the parties for and against Riverside’s request, the court found that this was insufficient to permit judicial review of the reasons for the BZA’s ultimate decision. Thus, the court concluded that the findings entered by the BZA in the present case were insufficient to permit adequate judicial review of BZA’s decisions. The court therefore reversed the judgment of the trial court and remanded the case to the BZA with instructions to enter specific findings.
Riverside Meadows I, LLC v City of Jeffersonville, Indiana Board of Zoning Appeals, 2017 WL 1179578 (IN. App. 3/30/017)

Clayland Farm was a 106 acre property located in Talbot County, and zoned as a “Village Center.” A Village Center was generally the “preferred location” in rural areas for “single and multi-family residential development.” The owners of Clayland Farm claimed that they could not pursue their land use goals, because of three Talbot County ordinances: two moratoriums on development, and one that limiting sewer availability. Bill Nos. 1214 and 1257, enacted in 2012 and 2014, indefinitely prohibited certain types of development in areas zoned as Village Centers, including Clayland Farm. The moratoriums prohibit owners from seeking or obtaining approval to subdivide their property, and imposed more restrictive zoning density rules by prohibiting subdivision of properties zoned as “Village Centers” into more than two lots. The affected property owners, including Clayland Farm, had no ability to seek a variance from, or a waiver to, the moratoriums and were otherwise unable to challenge them outside of court. The third challenged ordinance established a classification method that determined the availability, if any, and type of sewer system for a property. Clayland Farm filed suit in state court against Talbot County, various county officials, and the Maryland Department of Planning, but these claims were dismissed as unripe. In this case, Clayland Farm Enterprises, LLC appealed the district court’s order dismissing its claims against Talbot County, Maryland, and other defendants for lack of ripeness.

At the outset, the court found that Count I, a facial challenge to the moratoriums, was ripe because Talbot County had been deprived and continued to deprive Clayland Farms of its Fourteenth Amendment rights by enacting and perpetuating the Village Growth Moratorium: an illegal, illegitimate and inequitable regulatory taking. The court determined that Clayland Farm suffered a concrete and certain injury as soon as the moratoriums were enacted; the ordinances prohibited Clayland Farm from subdividing more than one additional lot from its property and from developing more than one dwelling unit on the lot, which had previously been allowed. Additionally, the possibility that Talbot County could enact future zoning or planning ordinances that would affect Clayland Farm’s ability to develop its property did not call into question the finality of the three ordinances that currently restricted Clayland Farm.

Clayland Farm next asserted a procedural due process claim, averring that the enactment of an indefinite moratorium without any post-deprivation remedies facially violated the Fourteenth Amendment of the U.S. Constitution. Because Clayland Farm claimed a concrete injury and had been provided no means to address that injury, the court likewise found this claim was ripe. Count III asserted that the moratorium and the designation of the Clayland Farm property as Tier IV property were so arbitrary that they facially violated the Constitutional guarantee of substantive due process. Count IV, which alleged a conspiracy to commit the constitutional violations in Counts I–III, was ripe for the same reason the events supporting those counts were ripe. Here, the court determined that the claim was ripe when the object of the conspiracy – the enactment of the ordinances – had been accomplished. Lastly, Counts V, VI, and VII were all found ripe because they alleged state law violations or sought injunctive relief based on the enactment of the three ordinances. Even though the district court found the claims were not ripe because Talbot County had not yet reached any final decision, the court found on appeal that Clayland Farm suffered concrete injury when the three ordinances were enacted, even if the ordinances could later be modified. Accordingly, the court reversed the district court’s dismissal of Clayland Farm’s claims for lack of ripeness and remanded the case for further proceedings.

Clayland Farm Enterprises, LLC v. Talbot County, Maryland, 2016 WL 7030627 (12/2/2016)

 

Plaintiff Shane Harrington sought a location for an adult entertainment venue in Seward County, Nebraska. To this end, Harrington spoke with the County’s zoning administrator, who allegedly encouraged him to purchase a building in a remote area of the county. Harrington then entered into an option contract for the purchase of the building, conditioned on receiving necessary approvals from the County, and provided for a July 15, 2015 closing date; this date would be “automatically extended” to accommodate the County’s review, however any extensions beyond September 15 required the express permission of the seller. Harrington alleged that from May to October 2015, the County intentionally delayed his application and held “secret meetings” on the proposal. In September, before any adjudication on Harrington’s requests, the County adopted a new zoning resolution (“the 2015 ordinance”) which further regulated adult establishments. Under the 2015 ordinance, adult entertainment venues were permitted by right in C-2 highway commercial districts, thereby eliminating the need for Harrington’s rezoning request. The ordinance also included regulations not previously included in the 2007 ordinance, such as a prohibition on alcohol, and certain restrictions pertaining to the touching of semi-nude dancers. As a result of the County’s actions, Harrington claimed he was “required to relinquish his purchase option for the subject property.” In this case, Harrington attacked several provisions of the two ordinances on constitutional grounds, and claimed that the County deprived him of property without due process of law.

The record indicated that the 2015 ordinance was approved and went into effect after September 15. Thus, it appeared as though Harrington’s purported loss of the option contract was based not on the substance of the 2015 ordinance, but rather on the terms of the operative agreement. The court was unable to infer that such causal relationship existed, but Harrington also asserted facial challenges to the 2015 ordinance, suggesting that his purported injury extended beyond the option contract. Despite this assertion, the court found that challenging an ordinance based on vagueness or overbreadth does not, itself, excuse or obviate the requirement of constitutional standing.

Harrington next alleged that the 2007 zoning ordinance effectively banned all sexually oriented businesses by “prohibiting Adult Establishments in over 99.9% of Seward County.” He further contended that an hours of operation provision, which required adult businesses to close from 12:00 a.m. to 6:00 a.m., amounted to an unlawful prior restraint. Fatal to this claim, however, was the fact that Harrington did not own, or sufficiently allege an intention to own, property in the County, so that he would “benefit in a tangible way from the court’s intervention.” Absent the necessary allegations of demonstrable, particularized injury and redressability, the court held that there could be “no confidence of a real need to exercise the power of judicial review.” Accordingly, to the extent that Harrington challenged the hours of operation restriction in the 2007 ordinance, the claim was be dismissed without prejudice.

Even assuming the existence of a property interest, the court found the nature of Harrington’s due process claim was unclear. While Harrington claimed not to have received proper notice of a June 22 meeting, public records were published in local newspapers in the weeks prior to the commission’s meeting. Furthermore, the publicly-available transcript of the meeting reflected that Harrington and his attorney were not only in attendance at the June 22 meeting, they presented at it. Moreover, even assuming that he had a property interest, his takings claim was unripe since he had not adequately pursued available state law remedies, such as the filing of an inverse condemnation action. Lastly, as to the Open Meetings Act claim, the Court declined to exercise supplemental jurisdiction.

Harrington v. Seward County, Nebraska, 2017 WL 1080931 (NE 3/22/2017)

The Plaintiffs, Gary and Jennifer Hunter, owned property abutting a 100-foot undeveloped stretch of Jillian Court on the north. To the west of the Hunters’ property was 13 acres of undeveloped land which Defendant JAYSAC Company, LLC purchased in 2014. Prior to that purchase, the City of Highland Heights Planning and Zoning Committee voted to allow the 100-foot unpaved grass portion of Jillian Court “to be treated as a driveway unless there are more than two lots developed, in which case it would have to be developed as a public right-of-way according to the City’s subdivision regulations.”

The court found that use of the term “driveway” was an erroneous characterization, as the area in question remained an unpaved street. When Plaintiffs and their neighbors became upset with JAYSAC accessing its 13 acres by crossing the 100-foot unpaved section of Jillian Court, they filed open records requests and drafted a signed petition asking City officials to either create a cul-de-sac or other turnaround at the end of Jillian Court or leave it in its current grass form. In response, the City spent $9,369.69, and JAYSAC spent some of its own money, to extend the paved portion of Jillian Court by 10 feet, add a drainage area at the end of the street, remove bushes and trees, add dirt and level the unpaved portion of the street, plant grass, and place a temporary block at the end of the paved portion to prevent vehicles from driving on the freshly planted grass. The Plaintiffs then filed this action under 42 U.S.C.A. § 1983 alleging violations of the Fifth and Fourteenth Amendments, along with two Kentucky state law claims and a claim for declaratory relief.

Here, the original plat map for the subdivision indicated that this area was a City street. Even though City of Highland Heights employees referred to this area as a “driveway,” the record demonstrated that the City of Highland Heights maintained the stretch as an unpaved public street, which JAYSAC or any person was free to use. For the street to have been closed, the City would have had to bring an action under KRS 82.405. This action was never filed, nor did the City cut off access to the unpaved portion to create an informal closure. As such, a taking never took place. The Court then dismissed the remaining state law claims without prejudice. Hunter v. City of Highland Heights Jaysac Company, LLC, 2017 WL 1028568 (2017) Court of Appeals of Kentucky Holds Failure to Name Property Owner was a Fatal Omission to Complaint

In 2014, AT & T filed for permission to construct a cell phone tower in a neighborhood zoned as B–1 (Neighborhood Business). Pursuant to Kentucky Revised Statute (KRS) 100.9865(12), contiguous landowners and landowners within 500 feet of the proposed tower were duly notified of the application. The Hill ‘N Dale Neighborhood Association (of which Carlin Robbins and Rebecca Lutz are members) opposed the tower as inappropriate, unnecessary, and damaging to property values. The Planning Commission approved the cell tower application, and the Circuit Court affirmed. In this case, Robbins and Lutz appealed from the opinion and order of the Fayette Circuit Court dismissing their claim against the Lexington–Fayette Urban County Planning Commission and New Cingular Wireless, PCS, LLC d/b/a AT & T Mobility. Robbins and Lutz first contended that the circuit court erred in holding that KRS 100.987 did not provide for an independent grant of authority to appeal separate and apart from KRS 100.347. Here, Robbins and Lutz conceded that KRS 100.347(2) conferred jurisdiction and venue in Fayette Circuit Court but dispute that the procedural requirements of KRS 100.347(2) must be followed to vest jurisdiction, and that there were no procedural requirements set forth in KRS 100.987. Moreover, the court found that Robbins and Lutz were aware prior to or at the Planning Commission hearing of the property owner’s identity, yet they chose not to name the owner as a party to the complaint or appeal filed 30 days later. The court held that this omission was fatal to their cause of action.

Robbins and Lutz next argued that the trial court erred in not granting leave to amend their complaint to include the property owner. They cited CR 19.01 in support of this argument, but the court found that the civil rules did not apply in this type of litigation until after the appeal had been perfected. Here, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it was required to dismiss the appeal for want of jurisdiction. Accordingly, the order of the Fayette Circuit Court was affirmed.

Robbins v. Lexington-Fayette Urban County Planning Commission, 2017 WL 1034493 (2017)

 

Roger Aiello owned fifteen acres of residentially zoned property in Braintree, located directly north of the commercially zoned locus. Aiello’s property consisted of a number of parcels, including a prior nonconforming catering business and a “semi-agricultural use,” a goat pasture. In 1994, when the property was owned and occupied by the former owner, Ainslie Corporation, the board granted a special permit and site plan review approving a proposed 3,750 square foot addition subject to thirty-four conditions. In 2008, the next owner McCourt filed an application for a special permit to modify the 1994 special permit by removing conditions 18, which restricted the use of the addition to storage only, and 31, which prohibited permanent outdoor storage. The board characterized the uses proposed by McCourt as “contractor’s yard, light manufacturing, non-residential garage, and automotive repair,” and noted that they were “by-right” uses in the commercial district. The board justified the removal of these conditions because the “owner/operator does not have the interior storage needs of the previous tenant.” On appeal to the Land Court, the judge concluded that Aiello lacked standing to appeal, and reasoned that the noise and odors coming from the locus were the result of the uses allowed for decades either by right or specifically allowed pursuant to the decisions of the board, including the 1994 special permit.

The court first noted that “crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.” Here, McCourt admitted in its application that it had been using the property in a manner that violated the two conditions it sought to have removed. Those uses prompted complaints of noise, odors, and visual impacts from Aiello and caused him to install a fence in an effort to reduce the impact. Moreover, the noise impact from use of the parking area as a contractor’s yard with all of the attendant noise associated with the movement of vehicles and materials was found to be more than de minimis. As such, the court found the trial judge’s finding that Aiello lacked standing was erroneous.

The court next analyzed the trial court’s finding that the proposed fencing was inadequate to meet the requirements of the landscape and buffer zone regulations or to satisfy the criteria relevant to exceptions from the buffer zone requirements. Since McCourt did not argue on appeal that the judge’s decision on the merits with regard to visual impact was wrong, the court determined that the board must reconsider the allowance of the special permit modification.

Aiello v. Planning Board of Braintree, No. 15-P-1321 (4/14/2017)

The opinion can be accessed here: http://law.justia.com/cases/massachusetts/court-of-appeals/2017/15-p-1321.html

In 2002, Scasny obtained approval to construct a 292 square foot detached two-car garage that included a driveway. Over time, the two-car garage became a 644 square foot two level building with a bathroom that included a toilet and tub; a kitchen area with a kitchen sink and cooking area; a laundry room with a washer and dryer; a large recreation room with cable television; two air conditioned levels; and a furnace and hot water heater. The Village’s Board of Zoning Appeals (“BZA”) denied Scasny’s request to be able to cook on the premises and the Council affirmed the BZA’s decision. Appellants Tim Scasny and Lynne Hamill appealed the trial court’s decision affirming the decision of the appellee Mayfield Village Council, which denied Scasny’s request to have the ability to cook in the second building on his property.

On appeal, Scasny argued that the common pleas court incorrectly applied Mayfield Village Codified Ordinance 1113.08(f) to his property. Pursuant to Mayfield Village Codified Ordinances 1153.02(a), Class U–1 uses included: (1) single-family dwelling; (2) farming, nursery, truck gardening, or (3) any municipal use by the Municipality. Here, the property was further designated as being in the U–1 District that was within the Class A–1 District; this meant that a further restriction applied that “no building shall be used and no building shall be erected which is arranged, intended or designed to be used as a semi-detached single family dwelling or double house.” As such, Scasny was only permitted to have one single-family dwelling on his property. The court found that Scasny’s structure qualified as a “dwelling unit” since cooking was permitted within the building. This was distinguished from “Accessory living accommodations”, which were did not allow cooking equipment. Accordingly, the trial court’s application of Mayfield Village Ordinance 1113.08(f) was supported by reliable, probative, and substantial evidence.

Lastly, Scasny argued that the Village’s restriction on cooking in a structure that did not comply with fire and safety protocols was arbitrary, unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community. The court held that the prohibiting cooking in “accessory living accommodations” had a substantial relationship to safety. Accordingly, the trial court did not abuse its discretion by denying Scasny declaratory relief.

Scasny v. Mayfield, 69 N.E.3d 1219 (2016)

In August 2014, Atwood Enterprises, Ltd., applied to the Town of Jericho for approval of a PUD. Atwood’s proposal involved using a roughly twenty-eight-acre parcel taken from a larger piece of farmland and constructing a six-unit, three-duplex subdivision with common lands. The Jericho Land Use and Development Regulations, effective February 7, 2013, governed approval of the project. A group of landowners adjacent to a proposed planned unit development (PUD) challenged the Environmental Division’s affirmance of the PUD permit. On appeal, neighbors argued that the Environmental Division improperly required them to amend their original statement of questions and then erred by refusing to consider all of the issues raised by neighbors’ Amended Statement of Questions. Neighbors also claimed that the court erred as a matter of law when it concluded that adequate notice was posted of the public hearing on the PUD permit.

The court first noted that under Vermont Rule for Environmental Court Proceedings 5(f), an appellant must file a statement of questions that the appellant desires to have determined on appeal. Here, Atwood properly asked the court to clarify the issues to be heard in an initial status conference. After requiring neighbors to submit an amended statement of questions, the court proceeded to trial with a statement of questions that included Question 1.b: “Whether the proposed subdivision meets the requirements of the Regulations applicable to planned unit developments.”

Despite these specific references to compliance with the other regulations, the Environmental Division determined that considering all of these issues would be too broad and ambiguous to provide notice to Atwood. As result, the court limited its decision on the merits to those issues specifically relating to PUD regulations. Throughout the trial, Atwood objected to neighbors’ cross-examination based on relevancy and the court, despite acknowledging the Amended Statement of Questions was broad, effectively denied these objections by allowing the evidence to be admitted and proceeding with the trial. The court found that because the parties presented evidence on the regulations and the regulations were before the court, the Environmental Division should have addressed them in its decision. Therefore, the court remanded the case for the Environmental Division to resolve the issues raised by neighbors’ Amended Statement of Questions not previously resolved by the court, including: subdivision-review standards, conditional-use review, any and all applicable specific-use standards, and the general provisions.

Finally, the record reflected that no dispute existed that proper publication occurred in a newspaper of general circulation and that all abutting landowners received a copy of the notice. The neighbors instead focused on the requirement that the posting must be on the public right-of-way closest to the project. The court found that, here, the parties abutting the project received actual notice via the mail and the hearing was properly published in a newspaper of general circulation. Additionally, there was no evidence that neighbors were prejudiced by the alleged defect in the posting, and the neighbors failed to identify an injury stemming from the posting defect. Accordingly, the court held that the Environmental Division’s determination that Atwood made reasonable efforts was supported by the record.

In re Atwood Planned Unit Development, 2017 WL 1035175 (2017)

On August 11, 2014, defendant Township of Bloomfield adopted Ordinance 3729, which appropriated $10,500,000 for the acquisition and improvement of a tract of land to be used as a public park, and authorized the issuance of $9,975,000 in Township bonds or notes to finance part of the cost. The subject property had previously been approved by the Township Planning Board for construction of a 104-unit townhouse development known as Lion Gate. The Ordinance was first introduced at a meeting chaired by defendant Nicholas Joanow, a Township Councilman, who owned a home that directly bordered the property. Joanow also cast the deciding vote approving the Ordinance at the August 11, 2014 Township Council meeting. Plaintiffs Russell Mollica, James Wollner, Ray McCarthy, and Chris Stanziale, a group of Township residents, filed a pro se action in lieu of prerogative writs challenging the validity of the Ordinance. Additionally, they sought to enjoin the Township from issuing the bonds, alleged that Joanow had a disqualifying interest when he voted on the Ordinance under both the common law and the Local Government Ethics Law (LGEL), and that the Township violated the Open Public Meetings Act (OPMA). The trial court dismissed the neighbors’ claims.

On appeal, Plaintiffs argued that Joanow should have recused himself from participating in any of the proceedings that led to the passage of the bond ordinance due to his ownership interest in property adjacent to the proposed public park created a legally insurmountable conflict of interest. Defendants responded that Councilmember Joanow was “set to gain no more than all the residents of the Township who will benefit from the creation of the public park and maintenance of open space.” The court found that the statutory standards set forth in the Municipal Land Use Law (MLUL), and in the LGEL, as well as “established common law authority,” all concluded “when a church or other organization owns property within 200 feet of a site that is the subject of a zoning application, public officials who currently serve in substantive leadership positions in the organization … are disqualified from voting on the application.” Here, Joanow had a direct personal interest since he owned property directly abutting the Lion Gate site.

The court held that Joanow’s ownership of property immediately adjacent to the Lion Gate site was sufficient in itself to disqualify him from voting on the Ordinance. Furthermore, since the disqualifying interest of Joanow was in its subject matter of the Ordinance, the court found that the remedy was to invalidate the Ordinance. As such, the court reversed the trial court’s holding, and noted that if the Council ever seeks to reintroduce the Ordinance, it would have to do so in a manner that comports with the OPMA and does not involve Councilmember Joanow in the deliberative or voting process.

Next, contrary to the fire chief’s instruction that fire lanes abut the eastern and northern sides of the commercial structure, the board approved the site plan with a fire lane in the travel lane of the parking lot, with a row of cars directly abutting the northern side of the building. The judge considered the board chairman’s testimony that he learned from a private conversation with the fire chief that the fire chief had “personal animosity” toward a McCourt employee. The judge found the chairman’s testimony credible, and therefore concluded that the fire chief’s requirement “was the result of a personal feud” and not “legitimate reasoning.” The court found that this information the chairman learned in a private conversation outside the public hearing could not justify rejecting the fire chief’s decision. Moreover, the court held that the fact that the current fire chief had not taken action to enforce the former fire chief’s position was not equivalent to demonstrating that the board’s decision was made on legally tenable grounds.

Accordingly, the trail court’s judgment was vacated, and the matter was remanded for the entry of an order requiring the board to reconsider the allowance of McCourt’s 2008 application for a special permit.

Mollica v. Township of Bloomfield, 2016 WL 6068242 (NJ App. 10/2016), cert den. 2017 WL 658259,   (NJ 2/13/2017)

 

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