On June 7, 2016 the US EPA issues technical guidance for assessing environmental justice in regulatory analysis.  See, https://www.epa.gov/environmentaljustice/technical-guidance-assessing-environmental-justice-regulatory-analysis

From the EPA website: “The Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance) is designed to help EPA analysts evaluate potential environmental justice (EJ) concerns associated with EPA regulatory actions. While the EJ Action Development Process Guide issued in May 2015 (Guidance on Considering Environmental Justice During the Development of an Action) provides direction on when EJ should be considered during rulemaking, this latest guidance provides direction on how to do so in an analytical fashion. It directs analysts to assess whether EJ concerns exist prior to the rulemaking and whether such concerns are exacerbated or mitigated for each regulatory option under consideration. The EJ Technical Guidance takes into account EPA’s past experience in integrating EJ into the rulemaking process, and underscores EPA’s ongoing commitment to ensuring the fair treatment and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

“The EJ Technical Guidance makes four main recommendations designed to ensure consistency across EPA assessments of potential EJ concerns for regulatory actions. The recommendations encourage analysts to conduct the highest quality analysis feasible, recognizing that data limitations, time and resource constraints, and analytic challenges will vary by media and circumstance. They are not designed to be prescriptive and do not mandate the use of a specific approach. The recommendations are:

  • Analysts should use best professional judgement to determine the combination of quantitative and qualitative analysis that is possible and appropriate for each regulatory action; for regulatory actions where impacts or benefits are quantified, some level of quantitative analysis for EJ is recommended.
  • Analysts should integrate applicable questions during the planning and scoping and problem formulation stages of the risk assessment.
  • Analysts should follow identified best practices for incorporating potential EJ concerns into regulatory analysis, when feasible and applicable.
  • Analysts should consider the distribution of costs associated with implementing a regulatory option from an EJ perspective when appropriate, feasible, and relevant.”

“The EJ Technical Guidance is organized into seven main sections and three appendices.

  • Section 1 provides an overview of the guidance.
  • Section 2 describes the key definitions used throughout the guidance.
  • Section 3 highlights key analytic considerations, including three questions to frame the analysis, data and other analytic considerations, and the four main recommendations for guiding the analysis.
  • Section 4 discusses select contributors to and drivers of the uneven distribution of health risks that often occur among communities with potential EJ concerns.
  • Sections 5 provides technical guidance on how to incorporate consideration of potential EJ concerns into EPA’s human health risk assessment framework during the risk assessment planning phase.
  • Section 6 provides analysts with guidance on how to evaluate what level of analysis is feasible (qualitative, quantitative or some combination); the types of information that should be presented and methods that can be used to generate this information; and a discussion of other analytic considerations that could affect the results of the assessment.
  • Section 7 provides a summary of research gaps and data needs specific to improving EJ analysis for the Agency.
  • The appendices provide a suite of examples. Appendix A lists other EPA resources that may be helpful when conducting risk assessment or economic analysis. Appendix B includes examples of approaches used when considering EJ in exposure and effects assessment. And, Appendix C summarizes information about how EJ has been analyzed and considered in 11 recent regulatory actions.”

Steffensen–WC owned a parcel of land in Salt Lake City. The building on that land was formerly industrial but had been converted to apartments. Volunteers of America of Utah, Inc. purchased an adjacent parcel of land, with the intention of constructing a homeless shelter for young adults. To that end, VOA applied to SLC for the permits necessary to build and operate the shelter. Thereafter, Steffensen–WC brought suit against VOA and SLC, noting that SLC appeared “to be on the verge of approving the conditional use application” and asserting that “such approval can not meet the requirements of the applicable … ordinances and will create a substantial private nuisance.” VOA and SLC both filed motions to dismiss the suit.

The district court determined that the anticipatory-nuisance arguments in VOA’s reply were appropriate rebuttal material under rule 7 of the Utah Rules of Civil Procedure, and was unpersuaded by Steffensen–WC’s argument that the complaint had “invoked the law of Anticipatory Nuisance” in light of the fact that Steffensen–WC’s complaint “expressly invoked the claim of private nuisance” and “even lays out the elements of a ‘private nuisance.’ On appeal, in an order of partial summary affirmance, the court agreed that Steffensen–WC had not exhausted the available administrative remedies for its claims against SLC and affirmed the dismissal of those claims.

The court first found that the district court had jurisdiction over Steffensen–WC’s claims against VOA because there was no applicable statutory exhaustion requirement, since the statute’s effect was limited to land-use challenges against municipalities, and therefore did not apply to the claims against VOA. As to the issue of the rebuttal material, Steffensen–WC was the first party to assert that the complaint stated a claim for anticipatory nuisance. Thus, the “matter” of anticipatory nuisance was in fact raised by Steffensen–WC. VOA’s reply memorandum addressed that matter by arguing that Utah does not recognize anticipatory nuisance as a cause of action and by arguing that Steffensen–WC had not alleged the requisite elements of such a cause of action. Because these arguments rebutted a new matter—anticipatory nuisance—raised by Steffensen–WC in its opposition to the motion to dismiss, they were appropriate rebuttal under rule 7.

Lastly, the court held that even if Utah recognizes anticipatory nuisance as a cause of action, Steffensen–WC failed to persuade the court that its complaint satisfied the elements of such a cause of action and provided fair notice of an anticipatory-nuisance claim, nor did the complaint allege all of the elements generally required of an anticipatory-nuisance claim in jurisdictions that recognize such a cause of action.

Stefensen-WC, LLC. v Volunteers of America Utah, 369 P/ 3d 483 (UT App. 3/10/2016)


Congregation Rabbinical College of Tartikov, Inc. brought action against the Village of Pomona challenging certain zoning and environmental ordinances under the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the Fair Housing Act (FHA), and New York state law. Following discovery, on April 27, 2015, the Court held a pre-motion conference on Plaintiffs’ putative motion for sanctions for spoliation of evidence. Pursuant to a Scheduling Order of the same date, Plaintiffs filed their Motion for Sanctions and associated documents, requesting that the Court sanction Defendants for destroying a Facebook post written by Defendant Rita Louie and related text messages between Defendant Brett Yagel and Louie, and for failing to produce “the non-destroyed portion of those texts,” which Plaintiffs alleged contained relevant evidence. The District Court granted the congregation’s motion for sanctions against village due to spoliation of evidence.

Plaintiffs sought $63,406.15 in attorneys’ fees incurred in connection with Defendants’ spoliation of evidence. At the outset, the court found that in light of counsels’ extensive experience and the prevailing rates in the Southern District of New York, the presumptively reasonable fee would be based off the hourly rate of $375. Plaintiffs have submitted records indicating that counsel expended approximately 173 hours in connection with their Motion for Sanctions. During Discovery, the submitted time records indicated that Plaintiffs’ counsel spent over 80 hours drafting the motion and reply brief, over 20 hours on research and fact review relating to the spoliation issue, another 36 hours preparing for and attending a pre-motion conference, and approximately 16 hours conferring with one another. The limited nature of the issue led the Court to find the number of claimed hours excessive. However, the court rejected the contention that the “time culling through produced documents and discovery responses” was unnecessary for Plaintiffs’ Motion for Sanctions.

As to the issue of duplicative entries, the court found that the 16 hours that Savad, Sobel, Storzer, and Stepanovich spent conferring with one another was objectively necessary. Additionally, three attorneys, totaling over 20 hours of billed time, were all present at the pre-motion conference on April 27, 2015, despite the fact that only Stepanovich addressed the court. The court therefore found that a reduction of hours was warranted as to this issue. Furthermore, the court found that the billing records submitted by Plaintiffs were replete with examples of work identified in mere generalities, such as “Team Meeting, etc.”, “Review spoliation facts”, and “Work on Spoliation Issue.” These vague descriptions were deemed impermissible in the context of fee awards. Moreover, the fact that Storzer did not even speak at the pre-motion conference, despite having made the trip from Washington, D.C. and incurring $541.55 in travel-related expenses, warranted the elimination of several travel costs that were charge. Accordingly,the court imposed a 30% reduction of the total number of hours for which compensation was sought.

Congregation Rabbinal College of Tartikov, Inc. v Village of Pomona, 2016 WL 3030253 (SDNY 5/25/2016)

Plaintiff Merck, Sharp & Dohme Corp. owned an approximately 206-arce parcel in Defendant Town of Branchburg. In 2006, the Town considered a Master Plan Reexamination Report, warning against development on six-acre lots, and leading to the Township’s adoption of Ordinance 2008-1093. This Ordinance sought to protect farmland and open space by rezoning the property from one-acre lots to a density of six acres per lot, with a cluster option allowing lots as small as one acre provided there was a substantial open space set aside. At trial, two witnesses testified as professional planners: Paul Phillips for the Plaintiff, and Frank Banish for the Defendant. After finding that the exhaustion of remedies would be futile in this case, since the Board of Adjustment could not offer the requested relief of restoring the original zoning density, the court, before the Honorable Peter A. Buchsbaum J.S.C, analyzed Plaintiff’s as applied challenge to the zoning ordinance.

Plaintiff’s witness testified as to the regional designations applicable to the site: the land was in a Planning Area Two, which was designated as a “suburban growth area” in the State Plan; the land was marked as a “growth management area” by the Somerset County Master Plan; and the land was designated for the eventual installation of sewers. As conceded by Defendant’s planning witness, these facts resulted in it becoming unlikely that the farmland would be able unable to obtain state funds for farmland preservation. Having heard both parties’ testimony, the court analyzed whether the zoning carried out the purposed of the Municipal Land Use Law.

Here, the court first noted that the open space goal, effectuated by a significant density reduction, conflicted with regional growth plans. The property at issue had been designated unanimously in all regional plans for growth, not farmland preservation or a similar use. As such, the reduction of density on the property from 150 lots to 30 lots, rendered it useless for that purpose. Furthermore, the surrounding areas all had densities that coincided with the prior zoning of the property at issue.

Moreover, the court discussed that Municipal Land Use Law was created to ensure that the development of individual municipalities “does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole.” Viewed in this regional context, the open space goal deprived the State Plan of any efficacy. The court therefore found no reason why the down-zoning, in contravention of regional objectives, was needed in this case. Additionally, there was no density bonus, and thus no economic incentive, for clustering under the Ordinance 2008-1093. Accordingly, the court voided the Ordinance and suggested that if Branchburg wished to adopt an appropriate river corridor ordinance to protect the corridor along the Raritan River, that would be a more appropriate balance of state and municipal objectives.

Merck, Sharp & Dohme Corp. v. Township of Branchburg, SOM-L-1172-08 (April 28, 2016)

Plaintiff, Nextel Communications of the Mid-Atlantic, Inc. entered into a lease agreement with the owners of property zoned Rural Residential (“RR”), situated in Ross Township to build a wireless communication tower. It filed an application with Defendant Zoning Hearing Board seeking a special exception use, however after the filing of the application, the Township repealed the Ordinance and adopted a new, revised Zoning Ordinance that eliminated the Industrial Zoning Districts within the Township. Pursuant to the Zoning Ordinance Section 402.A.(15)(b)(9), a cellular tower was a special exception permitted by right in an RR district if the applicant proved to the satisfaction of the Zoning Hearing Board that there were no suitable locations for the antenna on existing towers and/or within commercial and industrial districts.

At the public hearings plaintiff presented the testimony of two site acquisition consultants, a professional land surveyor, and a radio frequency expert. The Board denied Plaintiff’s application because Plaintiff did not qualify for a special exception under section 402.A.(15)(b)(6) because Plaintiff did not adequately investigate locating their facilities on existing towers or explore reasonable opportunities to increase the length of or height of antennas on existing towers. The Board also found that Plaintiff did not qualify for a special exception under section 402.A.(15)(b)(9), because the evidence showed that Plaintiff did not adequately demonstrate that the cellular phone coverage could not be realized by locating a wireless communication tower in the commercial areas of the Township where such uses were permitted. Additionally, the Board found that the evidence disputed that a “significant gap” in coverage existed.

Subsequently, Plaintiff filed this action claiming that the Township violated the federal Telecommunications Act of 1996 (“TCA”), because the denial had the effect of prohibiting the provision of personal wireless service and contrary to the requirements of 47 U.S.C. 332(c)(7)(B)(iii). The United States District Court granted Defendant’s Motion for Summary Judgment stating that Defendant’s denial of Plaintiff’s application did not have the effect of prohibiting services and it was based on substantial evidence.

The Court noted that there are two approaches to use when deciding if there is a significant gap in the ability of remote users to access the national telephone network. The “user-oriented” approach, followed by the Third Circuit, requires the applicant to demonstrate that “the area the new facility will serve is not already served by another provider.” Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 398 (3d Cir. 2003). The “multi-provider” approach, endorsed by the FCC, requires applicants to merely show that they do not provide reliable service in a given area, regardless of other carriers’ service in the same area. Plaintiff must show that “a good faith effort has been made to evaluate less intrusive alternatives, which includes considerations of alternative sites, alternative tower designs, placement of antenna on existing structures, and ‘alternative system designs.’ ” Sprint Spectrum, L.P., 606 F. App’x at 671. Additionally, Section 402.A. (15)(b)(6) of the Ross Township Zoning Ordinance states, “An applicant for a new commercial communications tower shall provide evidence to the Zoning Hearing Board that they have investigated co-locating their facilities on an existing tower, and other tall structures and have found such alternative to be unworkable. The reason shall be provided. In an absolute minimum, placement upon existing or approved towers within a mile radius shall be considered in addition to other reasonable opportunities…” Further Section 402.A.(15)(b)(9) “requires an applicant seeking to construct a new cell tower in a Conservation Residential district or Rural Residential district to prove ‘to the satisfaction of the Zoning Hearing Board that there were no suitable locations for the antenna on existing towers and/or within commercial and industrial districts.’ ”

Here, Nextel’s real estate acquisition specialist drove in a one mile radius from the proposed site and found that there were no existing towers, tall structures or other suitable alternative locations within that area. Plaintiff did not consult the FCC to determine if other cellular carriers have erected antennas in the area, which was public record. Plaintiff did not put into evidence whether any other towers owned by any other provider were located within Ross Township. Plaintiff also did not contact any other companies to determine if there was a tower near the subject area to possibly co-locate an antenna. The Board found that Plaintiff did not satisfy the provisions of (15)(b)(6) and (15)(b)(9), because Plaintiff did not conduct a sufficient investigation with respect to co-locating facilities on existing towers or as to the antenna height or length on the existing towers, and that a tower located in a commercial zone. The court found that Plaintiff did not show that a good faith effort was made to evaluate less intrusive alternatives, which includes considerations of alternative sites, alternative tower designs, placement of antenna on existing structures, and ‘alternative system designs. Therefore, the court found that the Board’s decision did not have the effect of prohibiting wireless service in Ross Township.

The court also found that the Board’s decision to deny Plaintiff’s application for a special exception was supported by substantial evidence. The Board found that the information shown on the propagation study was inconsistent with the results of the drive test report. The propagation study showed no coverage in the alleged “significant gap” area, and the drive test study showed that over 75% of the calls were successful. As a result of the differences in studies, the Board found the propagation study unreliable. The Board also found that Plaintiff failed to satisfy the requirements of Section 402.A.(15)(b)(6), because Plaintiff failed to investigate other “reasonable opportunities,” such as how the coverage would change if the height on the existing towers were elevated or co-locating with another carrier. Plaintiff did not contact any of its competitors or consult the FCC database, to determine whether other carriers were located in the area, for a possible co-location.

Nextel Communications of the Mid-Atlantic, Inc. v Zoning Hearing Board of Ross Township, 2016 WL 1271385 (MD PA 3/31/2016)


Plaintiff Joseph Simone was the contract purchaser of a certain parcel of property located in the Township of Wayne owned by Frederick and Barbara Habeeb, designated on the tax map as Lot 7.01, and consisting of approximately 14,520 square feet of vacant land. Plaintiff intended to construct a single-family home on the parcel. The adjacent parcel, Lot 7, was approximately 15,810 square feet, and also owned by the Habeebs, having been conveyed to them at the same time they acquired Lot 7.01. The minimum lot size permitted in the zone was 30,000 square-feet, although nearby surrounding lots, originally laid out as part of a lakeside community in the late 1920s, were non-conforming when Wayne adopted the current zoning regulations. Plaintiff argued that the Board’s denial of the subdivision was arbitrary, capricious and unreasonable because the proposed lots conform in size to surrounding lots and thereby preserved the “character of the neighborhood.” He also contended that merging the two lots while his application was pending was “ultra vires.”

Distilled to its essence, plaintiff’s argument was that creating two lots, neither of which is conforming, from an existing conforming lot, advanced the purposes of the zoning plan because the surrounding lots were themselves undersized. The court noted, however, that the Board specifically found that the minimum lot size requirement was adopted by Wayne more than fifty years earlier after specifically rejecting a lesser minimum lot size that it chose to apply in other residential zones. Moreover, merger occurred as a matter of law when the sellers took title to Lot 7 and Lot 7.01 at the same time. Thus, Plaintiff’s contention that the merger was “ultra vires” was contrary to the position he took before the Board and the Law Division, where he conceded that merger was required as a matter of law.

Simone v Township of Wayne, 2016 WL 2888606 (NJ App. 3/31/2016)

Plaintiff Bacharach Institute for Rehabilitation, Inc., appealed from a December 11, 2014 order affirming defendant Galloway Township Zoning Board of Adjustment’s decision to grant defendant Health Resources of New Jersey, L.L.C. its application for, among other things, minor subdivision approval, preliminary and final major site plan approval, and a conditional use variance. During hearings before the Board on Health’s application, plaintiff argued that the nursing home was not and could not become a permitted use in the PCR district. Plaintiff further contended the nursing home could not even meet the criteria to become a conditional use under section 233–21(D), because the proposed height of the nursing home exceeded the two-and-a-half story height limitation in the NR conditional use regulation. On appeal, plaintiff argued the trial court erred when it affirmed the Board’s approval of Health’s application, because Health was required to obtain a use variance for the nursing home, not merely a conditional use variance, and that Health failed to show it met all conditions to obtain a conditional use variance.

The court noted that use-variance proofs attempt to justify the board of adjustment’s grant of permission for a use that the municipality has prohibited; however, proofs to support a conditional-use variance need only justify the municipality’s continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance. Here, Health’s proposed nursing home met all but one condition to become a permitted use. Specifically, the proposed nursing home would be one foot higher or one-half story more than allowed under the conditional use ordinance. The court found that the failure to meet this one condition was inconsequential, if not de minimis, since no negative impacts would be realized from this minor height deviation. Accordingly, the fact the nursing home would be slightly higher than permitted under section 233–21(D)(3)(i) did not invalidate the Board’s decision to grant Health a conditional use variance.

Bacharach Institute for Rehabilitation Inc. v Galloway Township, 2016 WL 2888728 (NJ App. 5/2/2105)


Appellant Neighbors For Notice LLC challenged the district court’s dismissal of its complaint alleging that Appellee City of Seattle Department of Planning & Development violated Neighbors’ due process rights when it approved a lot boundary adjustment without public notice. Neighbors contended that it had a protected property interest in challenging the Department’s land-use decision pursuant to Washington’s Land Use Petition Act (LUPA), which was a single-family zoning ordinance limiting minimum lot sizes to 5,000 square feet.

The court found that according to the Washington Supreme Court, the LUPA was enacted “to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.” Accordingly, this procedural-process purpose did not create a substantive property interest entitled to constitutional protection. The court therefore held that the district court properly dismissed Neighbors’ LUPA claim on the basis that LUPA did not provide a cognizable property interest in these circumstances.

Neighbors for Notice LLC v. City of Seattle, 2016 WL 2754536(9th Circ. CA 5/12/2016)

Plaintiff John R. Hanlon, Jr., appealed from summary judgment entered in favor of the defendants, ruling that the town of Sheffield was authorized to regulate the plaintiff’s use of his property as a private noncommercial aircraft landing area notwithstanding the regulatory authority of the Massachusetts Department of Transportation aeronautics division. On his property, the plaintiff created a strip eighty feet wide by 1,250 feet long for takeoff and landing of airplanes and, since at least 2006, has operated aircraft from the property as a hobby. In 2006, the plaintiff registered the property with the Federal Aviation Administration as a helipad. Pursuant to G.L. c. 90, § 39B, he also registered the property as a noncommercial private restricted landing area (PRLA) with the division. However, he neither sought nor received any approval from the town with respect to the PRLA. Section 3.1 of the town zoning by-law provides that land may not be “used except as set forth in the … Table of Use Regulations.” The section further provides that “any … use of premises not herein expressly permitted is hereby prohibited.” Although “commercial airfield” was listed as a prohibited use in rural districts, the Table of Use Regulations contained no mention of noncommercial or private airfields.

The fifth paragraph of § 39B, inserted by St.1985, c. 30, requires that a municipality making any rule, regulation, ordinance or by-law “relative to the use and operation of aircraft on said airport or restricted landing area,” receive approval from the division prior to the rule’s taking effect. However, the fourth paragraph of § 39B, already in effect at the time the fifth paragraph was enacted, contains the following introductory clause: “This section shall not apply to restricted landing areas designed for non-commercial private use …” The court resolved this discrepancy by reading the word “section” in the fourth paragraph to apply to the preceding paragraphs, but not to the fifth paragraph. Thus, the word “section” in the fourth paragraph of G.L. c. 90, § 39B, referred to those provisions of the § 39B in effect at the time the fourth paragraph was added to the statute in 1946, but not to the fifth paragraph, which was added to the statute in 1985, almost four decades later. As a result, the court held that any part of § 3.1 of the town zoning by-law that purported to regulate “the use and operation of aircraft on [an] airport or restricted landing area” could not take effect until “submitted to the division and … until approved by the division.”

Hanlon v. Town of Sheffield, 2016 WL 2758919 (MA App. 5/13/2016)

The petitioners leased and operated a gas station and convenience store on certain property which was adjacent to property owned by the respondent R & D Hotel. R & D proposed a redevelopment project on its property to remove existing hotel structures and create and lease four new buildings, along with new parking and utilities, for a fast food restaurant, a fueling station with a kiosk for staff, a bank/retail building, and a three-story hotel. The petitioners commenced two proceedings challenging determinations made by the respondents Town of Poughkeepsie Planning Board and Town of Poughkeepsie Zoning Board of Appeals with regard to the proposed project. The trial court denied the petitions and dismissed the proceedings on the ground that the petitioners lacked standing.

Here, the petitioners alleged standing on the basis of proximity, issues and interests within the zone of interests, and adverse impacts including: traffic impacts, impacts arising from issues of compliance with the land use laws, rules, regulations, and procedures of the town, community character impacts, and access issues related to an interconnection between the subject property and the petitioners’ property. The court found that the petitioners failed to establish any harm distinct from that of the community at large. Additionally, the petitioners did not have standing on the basis of any alleged access issues related to an interconnection between the subject property and their own, because they failed to establish any right of access to the interconnection and failed to allege any potential adverse impact of the interconnection’s closure. Accordingly, the court held that the Supreme Court properly denied the petitions and dismissed the proceedings on the basis of the petitioners’ lack of standing.

CPD NY Energy Corp. v. Town of Poughkeepsie Planning Bd., 2016 WL 2890119(NYAD 2 Dept. 5/18/2016)

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