This post was authored by Matthew Loeser, Esq.
Starlites Tech Corp.’s owner and president Maurice Raynor operated multiple electronic gaming businesses. Raynor also served as the president of M, M & K Developments, Inc. (“MM&K”). In 2011, Danny D. Fulp conveyed the property located at 11652 U.S. 220 Highway, Stoneville, North Carolina, to MM&K. In 2014, Rockingham County issued a zoning permit to MM&K, enabling it to “operate a sweepstakes business” in accordance with the County’s Unified Development Ordinance. The permit designated MM&K as the owner of the property, and “Starlite Technologies” as the applicant and occupant. Later in 2014, the County amended the Ordinance, and set forth permit requirements that “severely restricted the general operation of sweepstakes businesses in the county. In 2015, MM&K conveyed the Property to Starlites. Soon thereafter, articles of dissolution were filed for Starlites Technology, Inc. and MM&K. Following MM&K’s dissolution, no application was filed to amend the original zoning permit issued to MM&K to indicate that the property had been conveyed to Starlites.
In 2016, Officer Ben Curry of the Rockingham County Code Enforcement Division received a complaint about the property and determined that the business constituted a development without a permit. Officer Curry issued notices of violation to Starlites on 21 November 2016, 9 December 2016, and 3 January 2017. Starlites appealed the initial notice of violation to the Rockingham County Board of Adjustment. The Board entered an order denying Starlites’ appeal, holding: that Starlites’ business operation violated the County’s amended Ordinance, that Starlites failed to obtain a special use permit, and that Starlites was not exempt from the requirement to obtain a special use permit. The Superior Court affirmed the Board’s order and dismissed Starlites’ appeal.
On appeal, Starlites argued that section 13-4(f) of the amended Ordinance constituted a “grandfather clause,” allowing a prior permissible nonconforming use to continue so long as said use was not discontinued for a period of one year. The record reflected that about four months before the amended Ordinance was enacted, Rockingham County issued a zoning permit allowing MM&K to operate a sweepstakes business on the property, in compliance with the County’s then-existing Ordinance. Raynor, president of MM&K and owner and president of Starlites Technology, Inc., testified that he dissolved both entities “when the sweepstakes was officially … not allowed to operate anymore according to the State.” When a member of the Board asked Raynor whether Raynor had changed the type of business conducted, Raynor replied that the business was “still underneath the same promotional—getting promotional items. Still using the desktop computers. Everything was still the same. It’s just a different kind of format they made.”
Based on this testimony, the court found that the Board improperly concluded that under the provisions of the amended Ordinance, the change in ownership constituted a change in use. As such, the court held Starlites was required to amend its zoning permit in order to legally continue the same use of the property.
Starlites Tech Corp. v. Rockingham County, 2020 WL 768837 (NC App. 2/18/2020)

This post was authored by Matthew Loeser, Esq.
In 2000, Plaintiff acquired a lot located at 8 Yale Street in Billerica from Joseph M. DeMinico and Mary DeMinico. The lot was 5,000 square feet in area, and was first rendered nonconforming by an increase in minimum lot size to 7,500 square feet by amendment to the town zoning bylaw in 1945. The DeMinicos owned the lot in common with an adjacent property, 10 Yale Street, from 1972 to 1992. Under G. L. c. 40A, § 6, the two lots would have merged for zoning purposes during that period of common ownership if not for a provision of the Billerica zoning bylaw granting more generous grandfather protection. In 1992, the DeMinicos conveyed 10 Yale Street to Joseph and Mary as trustees of the Joseph M. DeMinico Revocable Trust and the Mary E. DeMinico Revocable Trust, as tenants in common. Both trusts were revocable inter-vivos trusts in which Joseph and Mary, respectively, retained a power of revocation and served as sole trustees. In 1999 Billerica amended its zoning bylaw to eliminate the more generous protection furnished by the anti-merger provision contained in G. L. c. 40A, § 6. The Board concluded that the two lots merged for zoning purposes upon the elimination of the bylaw’s protection against merger.
The court found that the DeMinicos as sole trustees, settlors, and life beneficiaries of their respective trusts, with retained power to revoke the trusts entirely, held complete control over both adjacent properties. Since the DeMinicos owned 8 Yale Street and their revocable trusts held 10 Yale Street, they had the ability to “use the adjoining land to avoid or diminish the nonconformity”. The judgement of the board was therefore affirmed.
Murphy v Board of Appeals of Billerica, 2020 WL 772560 (MA App. 2/18/2020)

This post was authored by Matthew Loeser,Esq.

Geerling Florist, Inc. owned a 46.25 acre property, formerly used as a nursery with mulching operation in the RA-Residential Agricultural Zoning District, which it sought to subdivide into forty-nine single-family dwelling units. Under the Warrington Township Zoning Ordinance, Geerling could build only fourteen single-family detached houses by right. In order to increase the number of permitted lots for the subdivision, Geerling intended to convey transferable development rights (“TDRs”) to the Township. In an effort to minimize the number of TDRs it would be required to surrender in addition to the nineteen already conveyed to the Township, Geerling argued that the baseline should be the number of dwelling units it could have had under the Ordinance’s cluster development use provision. The trial court found Section 370-411.G of the relevant Ordinance was ambiguous because it failed to specify how to calculate a baseline for determining the number of TDRs to be conveyed. As a result, the trial court looked to Section 603.1 of the Pennsylvania Municipalities Planning Code (“MPC”), and “interpreted” the Ordinance in favor of Geerling by using the cluster development number of dwelling units as the baseline for determining the number of TDRs necessary for the forty-nine lot development.

On appeal, the Board contended that this was not an “ambiguity”, but an omission, and that this omission should be filled by utilizing the rules of statutory construction and by the Board’s authority to impose reasonable conditions on conditional uses. The Board further claimed that the conditions attached to the Board Cluster Decision (preservation of 83% of the property as open space and preservation of a majority of prime agricultural soils) were reasonable as they were taken directly from Sections 370-403.B and 370-405.2.B(2) of the Ordinance and because it was not the intention of the cluster development provision of the Ordinance “to be used to greatly reduce the proportion of remaining open space by using it as a springboard to create a more intense TDR development.”

The court determined that the language of the Ordinance was not ambiguous with respect to determining a baseline, but was completely silent on the subject. As such, the application of Section 603.1 was inappropriate. Pursuant to the Ordinance as it was during the relevant time period, cluster development functioned to preserve open space and prime agricultural soils for future agricultural use – in addition to the preservation of 83% open space and other requirements specified in Section 370-405.2.B. Thus, applying deference to the Board, as the entity which adjudicates conditional uses, the court held that the Board did not err in its application of the Ordinance. Accordingly, the trial court’s holding to the contrary was reversed.

Geerling Florist, Inc. v. Board of Supervisors of Warrington Township, 2020 WL 697509 (PA App. 2/12/2020)

The UNC School of Law’s Center for Civil Rights released a county planning boards study that found that board member selection processes and powers and duties vary, and the gender, ethnic and racial representation of the boards often don’t reflect the demographics of the county.
There are 100 counties in North Carolina, and 92 of those counties have planning boards staff from 85 of the 92 counties were interviewed for the study. The report focuses on the powers and duties, member selection procedures, and racial ethnic and gender representations among these planning boards.

The report also contains recommendations for how elected governing bodies can improve their procedures for selecting planning board members and produce more demographically balanced, representative planning boards, including the amendment of enabling ordinances to make race, ethnicity and gender a formal consideration. The report was limited to county planning boards and planning boards merged between the county and the largest municipality.

 

The report can be accessed here: https://law.unc.edu/wp-content/uploads/2020/01/Planning-Boards-Inclusion-Report-2020-final.pdf

This post was authored by Matthew Loeser, Esq.

Petitioners commenced a CPLR article 78 proceeding and declaratory judgment action to annul the determination of respondent Town Board of Town of Brighton, which approved an incentive zoning application submitted by developers Daniele Management, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., M & F, LLC, and the Daniele Family Companies. The application was made in connection with a proposed Whole Foods store in respondent-defendant Town of Brighton. In this case, the petitioners appealed from an order and judgment that granted the motions to dismiss of the developers and the Town, Town Board, and respondent-defendant Town of Brighton Planning Board.
The court found on appeal that contrary to petitioners’ contention regarding the seventh cause of action, the Town Board’s determination to authorize certain deviations from the applicable zoning regulations in exchange for incentive contributions from the developers did not effectively amend the zoning regulations without the requisite referral to the Planning Board. Here, the incentive zoning mechanism utilized was already part of the Town’s preexisting zoning regulations developed in consultation with the Planning Board. As such, the court found that the application of that mechanism to a particular property did not thereby amend those regulations. The court therefore affirmed the dismissal of the petitioners’ complaint.
Save Monroe Avenue v Town of Brighton, 2020 WL 501525 (NYAD 4 Dept. 1/31/2020)

This post was authored by Matthew Loeser, Esq.

 
Petitioner-plaintiff commenced a hybrid CPLR article 78 proceeding and declaratory judgment action to annul the determination of respondent-defendant Town of Brighton Town Board. The determination at issue was the approval of an incentive zoning application by respondents-defendants M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., and Daniele Management, LLC – collectively doing business as Daniele Family Companies – in connection with a proposed Whole Foods store in respondent-defendant Town of Brighton. In this case, petitioner appealed from an granting the motions of respondents-defendants to dismiss.

 
On appeal, the court first found that the Supreme Court of New York properly dismissed the cause of action alleging a violation of Brighton Town Code chapter 113, because there was no private right of action to enforce that provision. Next, even assuming that petitioner’s 12th and 13th causes of action challenging the validity of the Town’s incentive zoning law were timely commenced, the court found that those causes of action were also properly dismissed on the merits, as the provisions of the challenged incentive zoning law were consistent with its authorizing legislation. The court further noted that section 261–b did not require an incentive zoning law to specifically adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law.

 
Contrary to petitioner’s remaining contentions, the court held that petitioner’s claims under the Open Meetings Law were properly dismissed. Specifically, petitioner’s claim alleging that one or more secret meetings took place, as indicated by a specific press conference, was speculative and conclusory. The court nevertheless found that the trial court erred by granting a declaration in favor of respondents on petitioner’s 9th and 10th causes of action – alleging violations of the public trust doctrine – as there are unresolved factual issues relating to the impact of the Whole Foods development on a recreational trail known as the Auburn Trail. These concerns included whether the development would require the constructive abandonment of the existing public use easements for that trail. As such, this portion of the Supreme Court’s holding was reversed.

 
Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 WL 501545 (NYAD 4 Dept. 1/31/2020)

This post was authored by Matthew Loeser, Esq.

 
In August 2016, UJ-Eighty Corporation, the owner of the subject property located in the City of Bloomington, entered into a lease with the Gamma-Kappa Chapter of Tau Kappa Epsilon (“TKE”). In 2016, TKE was a sanctioned fraternity with Indiana University. Following this, Bloomington enacted a Unified Development Ordinance that contained the definition of a fraternity or sorority house and required students to be enrolled in Indiana University and sanctioned by the university, through whatever process the university chose, as members of a fraternity or sorority. In February 2018, the members of TKE were notified that they could no longer reside at the property because the university no longer sanctioned TKE. While most of the residents moved out, two individuals continued to reside at the property.

 
Following the loss of TKE’s status as a sanctioned fraternity, the City determined that the property no longer met the Ordinance definition of a “Fraternity/Sorority House” and issued two notices of violation (“NOV”) to UJ-Eighty. UJ-Eighty appealed the issuance of the NOVs before the Bloomington Board of Zoning Appeals (“BZA”). The BZA affirmed the issuance of the NOVs, and UJ-Eighty sought judicial review of the BZA’s decision. The trial court granted UJ-Eighty’s petition, finding that the City had improperly delegated authority to Indiana University to determine whether the property was being used by students in a sanctioned fraternity and holding that the Ordinance was unconstitutional under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 4, § 1 of the Indiana Constitution.

 
On appeal, the BZA contended that the City’s Ordinance did not “violate the due process clause of the Fourteenth Amendment to the United States Constitution.” The record reflected that the City delegated its legislative authority to Indiana University to determine whether the Property was being used by students in a sanctioned fraternity, without providing any mechanism for reviewing Indiana University’s decision. Nevertheless, the BZA claimed that the Ordinance was constitutional because Indiana University no longer sanctioned TKE as a fraternity for students attending Indiana University. As such, the City argued UJ-Eighty could no longer lease the property to TKE.
Here, it was undisputed that UJ-Eighty did not take any affirmative action to violate the Ordinance. Additionally, it was the University’s action of removing TKE from the list of sanctioned fraternities that triggered the ordinance violation that the City sought to enforce against UJ-Eighty. The court found that by allowing a third party to engage in actions, using whatever procedures it deemed necessary, to trigger zoning violations against a property owner would arbitrarily and unreasonably deprive the property owner of its due process rights under the Fourteenth Amendment. Accordingly, the court affirmed the holding to set aside the BZA’s decision to uphold the issuance of the NOVs as unconstitutional and not in accordance with law.

 
City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corporation, 2020 WL 485930 (IN App. 1/30/2020)

This post was authored by Matthew Loeser, Esq.
Respondent Primo Sports applied to the Town of Chester Planning Board for site plan approval allowing the construction of a sports complex on property owned by the respondent Chill Factor Cooling, LLC. The Planning Board granted the application, and the petitioner commenced this CPLR article 78 proceeding against Primo Sports and the Planning Board, seeking annulment of the Planning Board’s determination. Primo Sports and the Planning Board separately moved to dismiss the petition on the ground that the petitioner failed to join Chill Factor, a necessary party. After Chill Factor was joined as a respondent, the respondents then separately moved to dismiss the petition on the ground that the statute of limitations had expired with respect to Chill Factor. The Supreme Court granted the motions and denied the petition and dismissed the proceeding.
On appeal, the court noted that the applicable statute of limitations had expired with respect to Chill Factor, and the petitioner could therefore have joined Chill Factor only if the relation-back doctrine applied. The relation-back doctrine did not apply in this case, however, since Chill Factor was not united in interest with Primo Sports. Specifically, the respective interests of Primo Sports and Chill Factor were not such that they “stand or fall together and that judgment against one will similarly affect the other.” Additionally, the petitioner failed to demonstrate a mistake as to the identity of the proper party or parties at the time of the original pleading. The court therefore affirmed the Supreme Court’s dismissal of the petition for failure to timely join the landowner, Chill Factor.
Germain v. Town of Chester Planning Board, 178 A.D.3d 926 (2 Dept. 2019)

This post was authored by Amy Lavine, Esq. 

In Matter of Save Monroe Ave., Inc. v Town of Brighton, the New York Appellate Division, Fourth Department affirmed the town board’s authorization of certain zoning deviations pursuant to its incentive zoning law. These zoning deviations didn’t amount to de facto amendments to the zoning law made without prior referral to the planning board, the court held, since the incentive zoning regulations were already part of the town’s zoning laws and had been properly adopted after the required planning board review.

Matter of Save Monroe Ave., Inc. v Town of Brighton, 2020 NY Slip Op 00752 (N.Y. App. Div. 4th Dept. January 31, 2020)

 

In a related case, Matter of Brighton Grassroots, LLC v Town of Brighton, the court also dismissed several claims challenging the validity of the town’s incentive zoning law. The court found that the law complied with the town’s zoning enabling legislation and specifically rejected the petitioner’s contention that the town was required to “adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law.”

The court additionally found no violations of the Open Meetings Law. The petitioner’s claim that the town board engaged in secret meetings was rejected because its allegations were merely speculative and conclusory. There was also no merit to the petitioner’s argument that the town violated the Open Meetings Law by posting too much information on its website several days before one of the public meetings concerning the project.

However, the court did agree with the petitioner on its public trust claim because there were unresolved factual issues related to the project’s potential impacts on a recreational, trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail.” The court also found that the petitioner’s cause of action regarding a permissive referendum was improperly dismissed as unripe.

Matter of Brighton Grassroots, LLC v Town of Brighton, 2020 NY Slip Op 00754 (N.Y. App. Div. 4th Dept. January 31, 2020)

This post was authored by Matthew Loeser, Esq.

In this case, Top Cat sought review of Washington State Liquor and Cannabis Board’s (“WSLCB”) decision to issue City of Arlington’s only retail marijuana license to its competitor. Specifically, Top Cat argued that applicant’s proposed location did not meet the regulatory requirement that there be a 1,000 feet separation between property lines of licensees’ businesses or buildings and restricted entities, which included secondary schools. The superior court affirmed WSLCB’s final order, and Top Cat appealed.
On appeal, Top Cat argued that the WSLCB erred in concluding that the term “property line” within WAC 314-55-050(10) included lease lines and lot lines, instead of merely formal, recorded, boundary lines. Pursuant to I-502, the WSLCB was prohibited from issuing “a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school.” The record reflected that the legislature also empowered WSLCB to adopt regulations regarding retail outlet locations. Here, the WSLCB found that the dictionary definition of property line included the boundary lines delineating different types of property interests, including a lease lot line.
The court found that the WSLCB’s interpretation of the term property line was consistent with the stated legislative purpose of ensuring marijuana businesses were physically located at least 1,000 feet away from the “perimeter of the grounds” of any elementary or secondary school or other restricted entity. While the statute at issue did not mention “property line”, it set forth that a marijuana business must be 1,000 feet from “the perimeter of the ground” of a restricted entity. As the WSLCB’s measurement of the distance between the perimeter of Weston High School’s lot 301 and 172nd Street Cannabis’s lot 500B was over 1,600 feet, the court held that the WSLCB did not err in determining the location exceeded the 1,000 feet separation requirement.
Top Cat Enterprises, LLC v. City of Arlington, 455 P.3d 225 (WA App. 2020)

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