This post was authored by Zhao Sun, Touro Law Center

Eagle Cove appeals denials by Oneida County and the Oneida County Board of Adjustment  years ago to rezone certain real property on Squash Lake or to grant a conditional use permit on that property so that Eagle Cove could develop a year-round Bible camp.

Eagle Cove previously litigated numerous claims relating to these denials in federal court, including a claim for a violation of Eagle Cove’s religious liberties under article I, section 18 of the Wisconsin Constitution. The federal district court, exercising both federal question and supplemental jurisdiction, dismissed all of Eagle Cove’s civil claims on their merits, including its claim under the Wisconsin Constitution. The court declined, however, to take supplemental jurisdiction of a certiorari claim Eagle Cove had advanced against the board of adjustment, preferring to have that claim adjudicated in state court given the limited scope of certiorari review.

Eagle Cove subsequently commenced the present action, seeking not only certiorari review but also advancing a variety of civil claims under the Wisconsin Constitution. The circuit court dismissed the non-certiorari claims based upon its conclusion that claim preclusion applied, insofar as Eagle Cove brought or could have brought the civil claims as part of its federal action. Eagle Cove appeals this determination and the denial of its motion for reconsideration, in which it asserted that claim preclusion should not apply because of an intervening change in the case law governing one of its federal law claims.

The issue here is whether the circuit court properly gave the federal judgment preclusive effect. The court reasoned that: 1. All elements of claim preclusion are present. 2. The exceptions to claim preclusion argued by Eagle Cove are inapplicable. 3. Sanctions were warranted against Eagle Cove for prosecuting a frivolous action against the Town.

The court concludes the circuit court properly dismissed Eagle Cove’s non-certiorari claims and denied its motion for reconsideration. The parties in the federal action were the same as in this action, the federal litigation resulted in a judgment on the merits, and the claims in the two actions all arise out of the same transaction. Accordingly, Eagle Cove was required to bring all of its claims in that action. Further proceedings in state court are limited to Eagle Cove’s certiorari claim, which the district court dismissed without prejudice.

The Town of Woodboro cross-appealed, asserting Eagle Cove’s commencement and continuation of the state court action against it was frivolous. Applying Wis. Stat. § 895.044 (2017-18), the court agreed that Eagle Cove’s action against the Town was frivolous. Because Eagle Cove did not withdraw or correct the frivolous filings after being served with a motion for sanctions, the court concluded the circuit court was required to award the Town damages consisting of the actual costs it incurred as a result of the frivolous action. The court affirmed the circuit court’s decision in all other respects, but the court reversed on the issue of sanctions and remand the matter to the circuit court for a determination of damages.

Eagle Cove Camp v. City of Oneida, 2019 WL 6121352 (WI App. 11/19/2019).

On June 25, 2019, President Trump issued an Executive Order creating a White House Council on Removing Regulatory Barriers to Affordable Housing.  See, https://www.whitehouse.gov/presidential-actions/executive-order-establishing-white-house-council-eliminating-regulatory-barriers-affordable-housing/

On November 22, 2019 the Council issued a call for public comments – due January 21, 2020 – on federal, State, local, and Tribal laws, regulations, land use requirements, and administrative practices that artificially raise the costs of affordable housing development and contribute to shortages in housing supply. See, https://www.regulations.gov/document?D=HUD-2019-0092-0001

Comments are sought on the following:

“While HUD welcomes comments on all aspects of developing a plan for reducing barriers to affordable housing development, HUD is particularly interested in receiving information, data, analyses, and recommendations on the following:

(1) Federal Barriers to Affordable Housing Development. HUD requests comments that identify specific HUD regulations, statutes, programs and practices that directly or indirectly restrict the supply of housing or increase the cost of housing. In thinking about the impact that the laws, regulations, statutes, programs and policies of HUD programs may have on the housing construction and development industry, please consider:

a. Federal laws, regulations, and administrative practices of HUD programs that directly or indirectly artificially raise the costs of housing development and contribute to shortages in housing supply, in HUD’s program implementation itself, or because of their impact on State, local, and Tribal government policymaking. Do these laws, regulations, or administrative practices produce any benefits to the resident, homeowner, state, or locality that would be eliminated if the requirement were reduced or eliminated?

b. Recommendations, strategies, solutions or best practice models that have been established to streamline, reduce or eliminate overly restrictive construction and development regulations, requirements or administrative practices identified above.

c. What are the policy interventions, solutions or strategies available to federal decision makers for incentivizing state and local governments to review their regulatory environment? To aid them in streamlining, reducing or eliminating the negative impact of state and local laws, regulations, and administrative practices identified in the questions below?

d. What is the potential impact, positive or negative, of streamlining, reducing, or eliminating the identified regulations, requirements or administrative practices?

(2) State Barriers to Affordable Housing Development. Since the 1920s States have given ultimate zoning authority to their local government units. Additionally, States have left it to the local jurisdictions to create their own governing structure and to delegate further authority across local government silos, often leading to fragmented, overlapping or duplicative review processes of construction projects. Finally, States almost always impose a bifurcated review process for larger scale infrastructure projects that require environmental review. However, States, by their regional nature, are more attuned with how local policies have larger economic consequences to regional economies. In thinking about the role of the state in the building construction industry, consider the following questions:

a. In what ways do State-level laws, practices, and programs contribute to delays in the construction industry? Are there particular laws, practices and programs that could be reviewed for potential barriers?

b. What are the policy interventions, solutions or strategies available to State decision makers for incentivizing local governments to review their regulatory environment? To aid them in streamlining, reducing or eliminating the negative impact of local and State laws, regulations, and administrative practices identified in the question above?

(3) Local Barriers to Affordable Housing Development. While a traditional characterization for the adoption and maintenance of some barriers to affordable housing development is that they reflect a “Not in My Back Yard” (“NIMBY”) disposition, their widespread and long-term prevalence suggests some substantive bases for their existence. For the purposes of this RFI, we define “local” to include all local government units that have constitutional authority given by the State to make decisions on land use planning and growth management, including cities, towns, parishes, designated places, counties, and rural communities, as well as regional entities that have decision-making authority on these land-use issues under State statutes. When identifying regulatory barriers and understanding the impacts on housing costs, there are several issues to consider:

a. What are the common motivations or factors that underlie the adoption of laws, regulations, and practices that demonstrably raise the cost of housing development? Do these considerations vary geographically?

b. How do local decision makers determine whether laws, regulations, or practices artificially or unnecessarily contribute to this problem? Do decision makers undertake cost-benefit analyses, and if so, how do they use them?

c. What are the policy interventions, solutions or strategies available to local decision makers for streamlining, reducing or eliminating the negative impact of these laws, regulations, and administrative practices identified in the question above?

(4) Basis for Reducing Barriers to Affordable Housing Development. In thinking about streamlining, reducing or eliminating barriers to affordable housing development, please consider the following:

a. What are the economic and social benefits to American families and individuals, the local community, the State or Tribe, and the nation that would be realized by reducing regulatory barriers to affordable housing development?

i. To what extent is there agreement that specific regulations and administrative practices result in higher cost or reduced availability of affordable market rate housing for potential homeowners and renters?

ii. Assuming agreement that specific regulations and administrative practices create impediments to affordable housing development by increasing the costs of either construction of housing or preservation of housing supply, are these costs of such regulation and practices quantifiable? What evidence is there to support this finding?

b. Are there regulations that may delay the process of building affordable housing but are necessary to ensure a certain level of quality is achieved in the construction?

c. How should one evaluate the cost of burdensome regulations on the local housing market? How should one determine the benefits of reducing those costs?

i. If you have knowledge of jurisdictions that have successfully implemented creative solutions to reduce regulatory barriers, please describe specific land use requirements that were demonstrated to have raised the cost of housing.

ii. In responding to item (i) above, please discuss how these jurisdictions offered incentives, sanctions or implemented policies that effectively reduced or eliminated overly restrictive, outdated, or otherwise burdensome land use regulations.

iii. For jurisdictions that considered reducing the barriers but ultimately did not take action to do so, what was the basis for that inaction?

(5) Plan Development and Implementation. In general, HUD is interested in what actions it should recommend or implement to assist States, Tribes, and local governments in reducing or eliminating barriers to affordable housing development.

a. Regarding HUD’s rules, regulations, and statutes, what actions can the Department take to significantly reduce (or eliminate) barriers to affordable housing development while remaining committed to its mission to expand affordable housing options and support decent, safe and sanitary housing for all Americans? Please provide detailed examples, if possible.

b. Regarding the recommendations provided to HUD above, what actions could the Department implement to create incentives for States, Tribes, or local jurisdictions to encourage regulatory review and reform? For communities that have achieved regulatory reform, how might the Department learn from successful policies that were adopted at the State, Tribal, or local level? How might the Department create guidance for other jurisdictions looking to achieve reform?

(6) Research Questions.

a. What peer-reviewed research and/or representative surveys provide quantitative analyses on the impact of regulations on cost of affordable housing development? Do these analyses demonstrate evidence on the degree or severity of impact? How strongly supported are the conclusions of the research? Provide citations for research referenced.

b. What performance measures, quantitative and/or qualitative, should the Council consider in assessing the reduction of barriers nationally or regionally? What are the advantages and disadvantages of each measure? Among the measures recommended above, how should they be prioritized? Such measures could include, but would not be limited to, the following:

i. The rate of housing production, considering a range of cofactors, including domestic and international migration patterns and rates of family formation;

ii. The number of housing construction permits, construction starts, and completions;

iii. The number of burden-reducing legislative or regulatory actions, considering suitable baselines;

iv. A list of best practice models based on recommendations from stakeholders and the public and reviewed by subject matter experts;

v. Housing development processing times and costs, considering a range of cofactors;

vi. Whether jurisdictions’ barrier reduction was temporary (e.g., a project- or grant/program-specific waiver) or permanent;

vii. Whether there are fair housing barriers to the development of affordable housing; and

viii. Whether the permitting process poses a greater, comparable, or smaller barrier to building housing than do the regulations, such as regarding timeliness and consistency of permitting decisions.

c. HUD’s Regulatory Barriers Clearinghouse (RBC)  (4) was created to document the prevalence of regulatory barriers that influence the cost of affordable housing and offer best practice solutions for their removal. The clearinghouse is an easily searchable electronic database that contains more than 4,800 barriers and solutions and catalogs information that spans all 50 states and more than 460 cities and counties. Best practices have been previously highlighted in a HUD publication called Breakthroughs, which was a bi-monthly e-newsletter accessible where community actors could share their stories about reform strategies that work. Representatives from the housing industry, the National League of Cities, the National Association of Counties, the National Association of Mayors and many other private, public and advocacy groups have contributed to these efforts. HUD’s Office of Policy Development & Research continues to manage the RBC database and staff are developing ideas for how the research community could use the information to conduct regulatory barriers research. For the purpose of this RFI, we ask for recommendations on how best to utilize this important source of information for States, local governments, researchers and policy analysts who are tracking reform activity across the country.”

 

This post was authored by Raymond Fragola, ’20, Touro Law Center 

The plaintiff, Sara Manzke filed suit against Jefferson County and the Town of Ixonia, Wisconsin on the grounds she was discriminated against because of her disability when she was denied an application for a zoning variance and a conditional use permit for the accommodation of emotional support animals.  The plaintiff suffers from intestinal cystitis, depressive disorder, anxiety disorder, chronic pain, fatigue and muscle weakness.  Her disabilities limit her daily activities including her ability to leave her home, attend school, and manage her physical needs.  The plaintiff, in accordance with a prescription from her physician sought the support of emotional support animals and as a result, has four miniature goats and six geese residing on her property.  The plaintiff’s property is zoned “community” under Jefferson County zoning ordinance, which the Town of Ixonia has adopted under Wisconsin Statute Chapters fifty-nine and sixty.  After the filing of an anonymous complaint about the animals on the plaintiff’s property, the Jefferson County Zoning and Sanitation Department issued the plaintiff a County Notice of Ordinance Violation on August 31, 2017, citing the plaintiff for being in violation of the County zoning ordinance and gave the plaintiff thirty days to remove the animals from the property or face a possible fine of $200.50 for each day the violation continued.  The plaintiff responded to the County by providing evidence of her disability and requested a reasonable accommodation under the Fair Housing Act.  The County responded by issuing two additional citations on November 13, and December 13, 2017.

 

In February 2018, the plaintiff filed for a variance and conditional use permit which was reviewed by the Town of Ixonia Planning Commission.  The Planning Commission recommended to the Town Board that it deny the plaintiff’s application for variance and was silent on the conditional use permit request.  The Town Board heard the plaintiff’s requests at a public hearing and voted that Jefferson County deny the variance and based on that denial took no action on the conditional use permit.  In the record of the hearing at least one member of the Town Planning Commission specifically asserted the Fair Housing Act did not apply to zoning laws.  After this denial the plaintiff was asked by the County how she wanted to proceed, she could either withdraw her application or proceed with the process to the County level, plaintiff was warned that the Town’s decision is usually an indicator of what will happen at the county level.  The plaintiff was offered no other means for requesting a reasonable accommodation from the zoning ordinance as neither the County nor the Town has such a process.  The plaintiff withdrew her application.  After the application withdrawal, the County continued to seek enforcement of the zoning ordinance and the plaintiff continued to assert her rights under the Fair Housing Act.  The plaintiff re-submitted her application for a variance and conditional use permit which the Town re-affirmed its original position without a public hearing.  At a public hearing of the Jefferson County Zoning Board of Adjustment, the plaintiff’s application for a variance was denied and because of this, her request for a conditional use permit would not be considered.

 

The Fair Housing Amendments Act makes it unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.”  Valencia v. City of Springfield, Illinois, 883 F.3d 959, 967 (7th Cir. 2018).  The Act applies to municipal zoning decisions. (Id.)  Further, the Act requires public entities “to reasonably accommodate a disabled person by making changes in the rules, policies, practices, or services as is necessary to provide that person with access to housing that is equal to that of those who are not disabled.”  Good Sheppard Manor Foundation Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003).  The defendant, Town of Ixonia, argued that it does not have the authority to provide the plaintiff with the requested relief because the Town is subject to the County’s zoning ordinance and does not have the authority to change or repeal the ordinance.  Essentially, the Town of Ixonia argues that the zoning ordinance is not its to waive.  The parties agreed that the Jefferson County Board of Supervisors is responsible for the enactment, amendment, and repeal of the Jefferson County land use ordinances and the County Zoning Adjustment Board is responsible for hearing and deciding administrative appeals.  It was the County and not the Town which issues the notice of violation.  The Court held that the role the Town plays in the appeals process is that it may provide a recommendation to the County as part of a resident’s application, but it is the County which renders the final decision.  Though the Town recommended denial of plaintiff’s application, the County had no obligation to follow the recommendation, and the Town had no authority to continue pursuing the matter.  As a result, the Court held that the plaintiff failed to identify any statutory authority allowing the Town to exercise general zoning authority that is not subject to the County’s control and approval.  Based on the foregoing facts and reasoning, the Court dismissed the Town of Ixonia as a defendant to the lawsuit.

Manzke v Jefferson County and Town of Ixonia, 2019 WL 6037379 (WD WI 11/14/2019)

This post was authored by Raymond Fragola, ’20 Touro Law Center 

Defendant, Michael Madulka owns an ice cream shop and office building located in Worcester.  The ice cream shop use is located within a residential zoning district.  The defendant filed an application for a special permit to expand the ice cream shop to allow for the sale of other types of food and to provide sit-down service to its patrons.  In addition to the special permit, the defendant also required a parking variance as he could not meet the minimum number of parking spaces required for the expansion.  After the Wocester Zoning Board granted both the defendant’s proposals, three neighboring residents appealed the Zoning Board’s decision to the Superior Court.  The Superior Court granted the Zoning Board’s motion for summary judgement and denied plaintiffs motion for reconsideration.

The Zoning Board filed a statement of material facts with its motion for summary judgement which only included a copy of the Zoning Board’s decision and an affidavit that the copy was true and accurate, a copy of the plaintiff’s complaint, and the plaintiff’s response to interrogatories.  The plaintiff’s submitted a joint opposition to the Zoning Board’s motion, which was accepted by the judge despite the fact the filling was not in accordance with Rule 9A.  In granting the Zoning Board’s motion for summary judgement the Superior Court judge held “that the decision of the zoning board is factually supported, is reasonable, does not derogate from the intent of the zoning ordinance, is legally sound and not arbitrary or capricious.”

Judicial review of a decision of a local zoning board of appeals is not based on record review.  Rather the facts are to be established de novo in the judicial proceeding appealing the board’s decision.  Furlong v. Zoning Bd. Of Appeals of Salem, 90 Mass. App. Ct. 737, 739 (2016).  In order for summary judgement to be granted, a party must demonstrate there are not marterial facts in dispute.  In Massachusetts, this is accomplished by complying with Massacusettes Rule of Civil Procedure P. 56 which requires:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein…The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.”

The Appeals Court noted that the only affidavit submitted by the Zoning Board was the one certifying the copy of the Zoning Board decision was true and accurate.   The Appeals Court went on to state that this affidavit only establishes what the Zoning Board decided, and the judge “is not permitted to give the board’s finding or decision evidentiary weight.”  Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972).  Further, the Appeals Court stated that the plaintiff’s responses to interretories demonstrate that the plaintiffs contest the facts that the Zoning Board found with respect to the projected impacts of the restaurant expansion.  As a result, the Appeals Court held that the Zoning Board’s summary judgement package was deficient.  In response to this deficiency, the Zoning Board made no effort to defend its submission but instead claimed the plaintiffs waived the right to challenge by failing to comply with Rule 9A.

The Appeals Court found this argument unpersuasive.  It held that because the Zoning Board did not support its motion in the required manner, the plaintiff’s duty to respond in a timely manner was never triggered.  The Appeals Court also held that even when a motion for summary judgment is unopposed, the moving party still must demonstrate that it is entitled to judgement as a matter of law.   Because the Zoning Board’s motion for summary judgement was improperly allowed, the Appeals Court ordered that the summary judgement to be vacated.

Johnson v. Zoning Bd. of Appeals of Worcester, 2019 WL 6034797 (unrep. Mass. App. Ct. 11/14/2019)

 

This post was authored by Laura Rameshwar, Touro Law Center

Petitioners, Provco Pinegood Sumneytown, LLC, appealed a decision of the trial court which affirmed a decision by the Upper Gwynedd Township Board of Commissioners denying Petitioners’ second application for construction of a convenience store with an attached gasoline service station.

Petitioners owned two continuous lots in a C-commercial district and sought to build a 5,585-square-foot Wawa store and fueling station. The convenience store is a retail use permitted as of right. In 2016, the Zoning Hearing Board determined the proposed gasoline sales use was an accessory use to an as of right to a convenience store retail use.  However, upon appeal the Trial Court reversed the Board of Appeal decision and remanded the matter back to the Zoning Hearing Board to determine whether the Petitioner was entitled to a special exception for its proposed fueling station use.

Petitioner then appealed to the Commonwealth Court which quashed the appeal as from an interlocutory order. While litigation continued in the Commonwealth Court, in January 2017 Petitioner submitted a preliminary land development application to the Town Planning Commission. Two neighboring property owners were allowed by the Commission to intervene in and offer their opposition to the proposed plan.  In the end. the Planning Commission rejected the application based on traffic impact design flaws and stormwater management deficiencies.

Although Plaintiffs resubmitted altered application later in 2017 the plans were significantly similar to the original and a second denial was issued. This first letter rendered a conditional approval of the plan issued by a plan zoning officer. The officer while still minting the need for a special exception for gasoline sales, offered that the plan could be approved if  Petitioners agreed to create an exit on the western driveway on Sumneytown Pike  with a larger “pork chop” traffic barrier to deter drivers from making prohibited left turns onto Sumneytown Pike. And Secondly, drivers must be prohibited from making left turns onto West Point Pike during peak hours.

After the conditional approval neighboring property owners again opposed the plan, and brought to attention the unresolved storm water deficiencies. In November 2017, after the conditional approval Commissioners denied the application at a public meeting and issued two additional written  letters categorizing their decision and listing 31 reasons for denial including failing to obtain the special exception for the fueling station, and stormwater management deficiencies, traffic design and road access deficiencies. Section 508(2), of the Municipalities Planning Code provides that  when a governing body denies an application for plan approval, “it shall specify the defects in the plan application, describe the requirements that were not met, and in each case, cite the provisions of the ordinance or statute relied upon.”

Petitioner’s then appealed to the trial court which affirmed the Planning Commissioners decision based on the failure to obtain the special exception for the intended fueling station use. Petitioner appealed arguing that the zoning officer’s conclusion that Petitioner required a special use exception was not a determination appealable to the zoning hearing board. The petitioner argued that the Municipalities Planning Code defines appeal issues “as a final action by an officer charged with the administration of any land use ordinance or application” and that the Zoning officers report was not a “final determination”.  Here the court reasoned that while it agreed that  officer’s letters appeared to be “reports” rather than final “determinations,” but much of that dispute was rendered moot by the subsequent trial court decision regarding the special exception and granting developer an evidentiary hearing on the issue.

Secondly, the Petitioners argued that the Commissioners erred in denying the application based on Pennsylvania Department of Transportation (PennDOT) traffic policies, standards and specifications for safe road access which Petitioner contends are not contained in any township ordinance. However, the Court found that the Commissioners properly interpreted provisions of the Subdivision and Land Development Ordinance (SALDO) requiring developer to comply with PennDOT traffic standards for access to Sumneytown Pike regardless of it not being a state highway.

One paragraph of the Commissioners’ decision applied PennDOT regulations governing safe stopping sight distances for access driveways and found that Petitioners application failed to provide safe egress onto the Sumneytown Pike, which had been outlined in the officer’s fort letter to the Petitioner. That determination was supported by the record and is sufficient to support the denial of the application.

Petitioners’ final argument that commissioners violated its due process rights by refusing to allow it to cross examine witnesses at the public meeting is meritless as the Petitioner did not request a public hearing, and there was no sworn testimony as the public meeting was not a hearing, but rather a standard meeting. In sum the court held that the Commissioners properly denied the Petitioners land development application.

In re Provco Pinegood Sumneytown, LLC, 216 A.3d 512, 514 (Pa. Commw. Ct. 2019), reargument denied (9/23/2019)

 

This post was authored by Andrew Markland, Touro Law Center

From 2001 until 2014 Alvarez rented a commercial space, under the name Panorama Live Poultry Market Corp., with Alvarez’s wife running the day to day business. In 2014, the landlord of the commercial space raised the rent so Alvarez’s ceased leasing the space. In 2015,  Alvarez found a new location suitable for the business, however the land was in a residential use district and would need a use variance to use the new location as a live poultry mart. Mr. Alvarez, believing he needed to receive the Mayor’s blessing met with the Mayor.  Mayor Stack properly directed the Alvarez’s to the zoning board but stated that he had no objections. The Alvarez’s then acquired a loan to purchase the property, formed “Central 25, LLC, and submitted an application for a use variance to operate as (1) a fish market and (2) a live poultry mart. The zoning board set November 7, 2015, as the date for public hearing and the Board’s attorney recused himself because his family owned the building.

 

Before the hearing, on official Mayor’s letterhead, the Mayor circulated letters in opposition to granting the use variance requested. The letter stated that the Mayor had no input and that the neighbors of the surrounding area should attend the meeting and let their voices “be heard.” Eleven members of the public testified at the public session and six members of the zoning board voted to deny the application and one member voted to approve. Plaintiff then filed this action arguing that the decision to deny the application should be reversed because: the decision was arbitrary and capricious; the resolution memorializing the denial of the application did not include findings of fact and conclusion based thereon; the mayor’s improper interference in the application process irreparably tainted the Board’s impartiality and denied plaintiff a fair hearing.

 

The issue before the Court was whether any member of the board who voted to deny the application had a personal interest that might reasonably impair their objectivity or independence of judgment. At the time of the hearing three of the voting board members were officers and trustees of the “Brian Stack Civic Association.” Plaintiff  argued that the Board members membership and participation in the Mayor’s Civic Association should have been disclosed and the members should have recused themselves because of an impermissible conflict of interest. The lower court determined that this claim was without merit. To determine if there was a conflict of interest that required recusal the Court followed the ruling in Piscitelli v. City of Garfield Zoning Board of Adjustment that found three source of authority: (1) the Local Government Ethics Law, N.J.S.A 40A:9-22.2; (2) the Municipal Land Use Law, N.J.S.A. 40:55d-69; (3) the common law. In applying the Local Government Ethics Law the Court noted that no local government officer shall act in his official capacity which he has an interest of direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment. In the second source of authority the Court noted that no member of the board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. In the third source of authority, the Court said that a trier of fact must inquire if a disqualifying conflict is present without any probing into an official’s motive because the ultimate goal is to ensure not only impartial justice but also public confidence in the integrity of the proceedings.

 

Because the record did not provide sufficient information surrounding the three board members who were officers and trustees of the “Brian Stack Civic Association” the Court reversed and remanded the case to the Law Division to determine if the three board members had a conflict of interest because of the Mayor’s aggressive opposition.

 

Central 25, LLC v. Zoning Board of City of Union City, 460 N.J.Super. 446 (2019).

This post was authored by Matthew Bentley, Touro Law Center

In 2007, the Ponca Tribe transferred land to the United States to hold in trust for the tribe. In 2009, the Ponca tribe and the City agreed to allow the tribe to seek changes in the zoning regulations without unreasonable opposition from the City. The tribe then announced their plans to construct a gaming facility. In 2018, the City Council approved the tribe’s amendment to the zoning regulations, which added gaming facilities to the list of permitted uses in the C-2 general commercial district. The amendment to the regulations would allow for the tribe to build the casino on the trust land. The land at issue is on the border of the trust property. Vogt filed a suit against the City and the City Council, claiming that the amendment to the regulations, violates the City’s comprehensive plan and that the tribe to be limited to constructing a “tobacco shop.”

Vogt claimed that the comprehensive plan prohibited mass redevelopment for large facility such as a casino. Vogt also claimed that because the status of the land was still in litigation and it could not be presumed that the gaming facility was on tribal land. Vogt filed a temporary injunction seeking to halt the construction of the casino in Carter Lake, zoning designations aside. The City claimed that federal law preempted Vogt’s claims and that the court lacked jurisdiction.

The district court ruled in favor of the City and determined that Vogt’s claims were preempted by federal law. The appellate court determined that the district court was proper in determining that Vogt’s claims seeking to enforce the zoning regulations and the comprehensive plan on the trust lands was preempted by federal law.  Furthermore, the appellate court ruled that tribe’s petition contests gaming facilities would be authorized in all of the C-2 Zoning Districts and in compliance with the City’s comprehensive plan. The district court’s ruling was reversed and remanded for the district court to determine whether the amendment applies to the C-2 district that is outside of the trust land.

Vogt v City of Carter Lake, 19-0108, 2019 WL 5790893 (Iowa Ct App Nov. 6, 2019).

Posted by: Patricia Salkin | November 18, 2019

PA Appeals Court Dismisses Appeal Over Historic Designation as Moot

This post was authored by Rachel Silverstein, Touro Law Center

A Philadelphia ordinance authorized the Philadelphia Historical Commission (the “Commission”) to designate historical sites as the Commission saw fit for the city. Under the ordinance, no one could alter or destroy a site deemed historical by the Commission. The Commission sought to designate as an historical site a Philadelphia residence. The property owners, the Barnes’ family, had owned the property for 115 years. Barnes did not want the property designated as a historical site because his mother wanted to turn the property into a funeral parlor. Barnes and O’Brien, Barnes’ attorney, opposed the property’s nomination. Still, with a 6 to 4 vote, the Commission designated the property because it satisfied the criteria of the ordinance. Barnes appealed the Commission’s decision. The trial court affirmed. Barnes appealed to the Commonwealth Court of Pennsylvania. The Commission then filed to dismiss the appeal on mootness grounds. Barnes argued that the Commission’s designation “affected only the buildings, and not the land . . .” The ordinance required that the Commission may only approve altering or demolishing a historic building or construct a building in a historic zone. The court interpreted the ordinance to allow not only specific buildings, but also surrounding land to be included. Therefore, the case was dismissed as moot.

Barnes v. Philadelphia Historical Commission, 216 A.3d 590 (PA Commnwlth 10/7/2019)

Posted by: Patricia Salkin | November 17, 2019

Annual Land Use Law Conference at Pace Law School – Dec. 5th

The Land Use Law Center is pleased to announce the 18th annual Alfred B. DelBello Land Use and Sustainable Development Conference. Scheduled for Thursday, December 5, 2019, this year’s conference theme is Building the Infrastructure for Our Sustainable Future. https://law.pace.edu/annual-conference-2019

We invite you to spend the day at this educational event, with more than 250 attorneys, business professionals, and local leaders in attendance to learn about national, regional, and local innovations, challenges, and best practices.
As in previous years, the Land Use Law Center has been working on developing a conference program that will showcase innovative best practices in land use and sustainable development. The Center is pleased to announce that this year’s luncheon keynote presenter will be Tom Murphy, Urban Land Institute Senior Resident and Canizaro/Klingbeil Families Chair for Urban Development. A former mayor of Pittsburgh, Mayor Murphy has extensive experience in revitalization and what drives investment and ensures long-lasting commitment. He will be joined by the opening keynote speaker Thomas W. Smith, III, the executive director of the American Society of Civil Engineers. Mr. Smith and ASCE will speak about future-scenario analysis that allows us to anticipate the coming changes and their effects on infrastructure and communities.
As always, conference participants can earn CLE, APA-CM, AIA/CES HSW and New York State planning and zoning training credits.
Additional highlights of the conference include:
On Wednesday, December 4th, the Center will be hosting a dinner to allow local leaders and sponsors an opportunity to add to their conference experience and network with conference presenters and to honor our Founder’s Award recipient Lester D. Steinman, Esq., Partner, McCarthy Fingar, LLP and former Director of the Edwin G. Michaelian Municipal Law Resource Center of Pace University, Distinguished Young Attorney award recipient Victoria L. Polidoro, Esq., Rodenhausen Chale & Polidoro LLP and Ground Breaker’s Award recipients Kenneth Kearney and Sean Kearney, Kearney Realty & Development Group.
Thursday’s conference will have an afternoon plenary session on the hottest land use cases with the leading land use professors and experts.
Featured sessions on comprehensive and target area plans, zoning tools for infrastructure, housing, building stock, a new economy, water resources, energy projects and so much more.
Event will conclude with the Land Use Law Center’s Alumni Wine & Cheese Reception.
Registration fees will be as follows: General Admission $165, Student/Not for Profit/Government $100 and NYS Attorneys including CLE $360.
Also, if your firm or company is interested, consider sponsoring! The conference provides an excellent opportunity to highlight your organization’s services and network with leaders in the field. Please click here to see the sponsorship opportunities.
Please see the conference agenda for more detailed information on conference sessions. (Coming soon!)

This post was authored by Raymond Fragola ’20 Touro Law Center

The defendant, Paul Breunich owns property at 106 Carter Drive in the City of Stamford. The defendant has a primary residence and multiple accessory structures, which includes a sea cottage. The sea cottage is the accessory structure at the center of this case. During Hurricane Sandy, the sea cottage was damaged and has remained uninhabited since that time. The defendant applied for, and was granted variances from the Zoning Board of Appeals of the City of Stamford (The ZBA) for among other variances; to increase the height of the sea cottage from eighteen feet, ten inches to twenty-seven feet, nine inches where fifteen feet is permitted and for a twenty-six foot rear yard setback where thirty feet is required. After hearing arguments from both the plaintiff and defendant, the ZBA issued a decision granting the defendant’s variances finding that the strict application of the zoning ordinance would deprive the defendant of reasonable use of his buildings. Further, the ZBA found these were the minimum variances necessary, and the granting of these variances would not result in injury to the neighborhood.

When a Zoning Board states the reasons for its action, the question for the court is whether the reasons given are reasonable supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. Verillo v. Zoning Board of Appeals, 155 Conn.App. 657, 678, 111 A.3d 473 (2015). It is well settled that courts are not to substitute their judgement for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgement has been reasonably made after a full hearing. Id. The burden of proof to show the board acted improperly is on the plaintiffs. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). In the case at bar, the plaintiff claimed the ZBA acted improperly because the defendant failed to prove a unique hardship, the variance is the result of personal preference and not necessity and lastly that the defendant failed to prove the variance requested was the minimal relief necessary.

The court held that because the defendant’s property was located in both the VE and AE flood zones, it would be impossible for the defendant to meet the new flood zone restrictions without further increasing the height of the sea cottage. The court held that there was sufficient information in the record to demonstrate that the ZBA could show that the need to meet the new flood zone requirements were sufficiently unique to grant the variance in this case. Second, the court held that the increased nonconformity was necessary as it was the only way for the defendant to comply with both the FEMA and the City of Stamford flood regulations. The fact that the defendant was not increasing the habitable space of the sea cottage was cited by the ZBA and the court in demonstrating the variance was out of necessity. Lastly, the court held that the ZBA granted the minimum variance necessary as the plaintiff requested variances which satisfied the minimum requirements of the new flood regulations and further, that other non-conforming structures were to be relocated into compliance as a condition of the variance approval.

Given the ZBA members discussed on the record that the defendant requested the minimum variance required, the living space of the sea cottage did not increase, the defendant was required to bring nonconforming structures into conformity, and the variances requested were not self-created, but unique to the property of the defendant due to new flood zone regulations; the court held that the ZBA did not act unreasonably, arbitrarily, or in abuse of its discretion in granting the defendant’s variance and dismissed the appeal of the plaintiff.

Mayer-Wittman v. Zoning Board of Appeals of the City of Stamford, 333 Conn. 624 ( 11/5/2019).

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