This post was authored by Amy Lavine, Esq.

In order to provide a meaningful opportunity to be heard, zoning procedures may require a hearing to be held before the local decision-making body, rather than by a planning commission or another local land use agency. Boards and agencies may be authorized to conduct the hearing in some cases even if they’re not the ultimate decision maker, but when this is the case, they still have to ensure that interested parties have a meaningful opportunity to express their opinions. What exactly constitutes a meaningful hearing can be difficult to pin down, but three recent cases from Alabama, Missouri, and Georgia help provide some guidance.

In Birmingham Planning Commission v. Laird, 2018 WL 1025031 (AL Civ App. 2/23/18), the court reversed the decision of a planning commission made on appeal from the subdivision committee. The ordinances at issue allowed the planning commission to hear appeals ab initio, but there was no evidence that it had voted to do so in this case. There was also no evidence that the planning commission had reviewed the transcript from the subdivision committee’s meeting or listened to the audio recording. As a result, the court found, the planning commission failed to comply with another ordinance provision that required appeals to be determined based on the record of the subdivision committee’s meeting.

The meaningful hearing requirement was more directly at issue in State ex rel. Kelly Brothers Mason v. County Commission of Franklin County, 2018 WL 2207786 (MO App. 5/15/18), which found a procedural due process violation where the opponents of a rezoning were only given an opportunity to testify before the planning commission after it had already voted to recommend approval of the application to the county commission. As the court explained: “To deny certain interested parties the opportunity to be heard at the critical stage of the zoning amendment process when the PZC [planning and zoning commission] is formulating its statutorily-mandated recommendation to be used by the county commission to render its decision on the application falls well short of providing procedural due process because the appellants were denied the opportunity to be heard at a meaningful time and in a meaningful manner. The ‘meaningful time’ was… before the PZC issued its recommendation and the ‘meaningful manner’ was simply to allow the appellants to be heard.”

The Supreme Court of Georgia reached a similar result in Hoechstetter v. Pickens County, 2018 WL 2465513 (GA 6/4/18). This case involved a conditional use permit application that had been referred to the planning commission for its recommendation, with the final decision to be made by the county board of commissioners. While a hearing was held before the planning commission, the only record that was sent to the board of commissioners was a one-page memorandum that was prepared by the county’s director of public relations and merely stated that testimony was heard from the applicant as well as objections from neighborhood residents. The hearing before the planning commission might have satisfied the zoning procedures law, the court concluded, but only if an adequate record had been made and provided to the board of commissioners. But on the facts of this case, the hearing testimony simply couldn’t be found to have meaningfully informed the final decision by the board of commissioners, since the memorandum failed to even disclose the nature of the objections raised before the planning commission.

This post was authored by Matthew Loeser, Esq.

The Petitioners in this case were the owners of five buildings that displayed “advertising signs” promoting the “Law Offices of John J. Ciafone, Esq.” on their front facades. Mr. Ciafone purportedly owned each of the petitioner corporations and used the signs, for which he had not obtained permits, to promote his law practice, under an entity known as “Ciafone, P.C.” In this article 78 proceeding, petitioners sought to annul determinations of the New York City Environmental Control Board (ECB), which found that petitioners engaged in unauthorized outdoor advertising and imposed penalties.

Ciafone first contended that that the signs were “accessory” signs since he provided legal services at each building that amounted to an accessory use. Specifically, Ciafone testified that he used various spaces as “satellite offices,” including vacant residential apartments, a space within a storefront, a small office in the back of a barbershop, a basement storage area, and that he also met clients in a restaurant located at one of the buildings. The court noted that in NYC v. Joseph Nativo, (ECB Appeal No. 1000307 [August 19, 2010]), an individual advertised his own closely held corporations on a building he personally owned, and the ECB determined that he could advertise the corporations he solely owned without becoming an outdoor advertising company (“OAC”). In subsequent ECB decisions in which the properties were owned by corporations instead of individuals, however, the corporate owner qualified as an OAC where it allowed for advertisement of a corporation other than the building-owning corporation itself. In determining that Nativo was inapplicable to this case, the court found ECB’s reading of the statute and its application of its own precedent were rational, and not arbitrary or capricious.

Petitioners next alleged that this case was factually unique because the buildings were essentially owned by an individual in corporate form, and the advertisements were for that same individual. The court found that based on the plain language of the applicable statute, all that was required to be an OAC was to engage in the outdoor advertising business: which meant “making space on signs … available to others for advertising purposes.” Furthermore, while conduct such as marketing, soliciting, or large advertising profits would certainly qualify that entity as an OAC, lesser conduct would also suffice under the statute. Thus, it was irrelevant that petitioners did not charge Ciafone for the signs. Accordingly, the determinations of respondent NYC Environmental Control Board, which found that petitioners engaged in unauthorized outdoor advertising, and imposed penalties, were affirmed.

Franklin Street Realty Corp. v NYC Environmental Control Board, 2018 WL 3470618 (NYAD 1 Dept. 7/19/2018)

This post was authored by Matthew Loeser, Esq.

In anticipation of receiving a license to dispense medical cannabis, Hippocratic Growth, LLC entered into agreements to open a dispensary in Grasonville, Maryland. Hippocratic was given preliminary licensing approval in December 2016, and submitted a building permit application for the property in February 2017. In this time, the Queen Anne’s County Commissioners enacted Resolution 17-06, which put a hold on the approval of medical cannabis zoning applications, and Ordinance 17-06, which created regulations that required conditional use approval and established set-back requirements for growing operations. While Resolution 17-06 was ultimately rescinded, the Planning and Zoning Department denied the building permit application pursuant to that Ordinance. The circuit court then granted appellees’ motion to dismiss Hippocratic’s claims arising from that denial.

In this case, Appellants argued that they had a protected constitutional interest arising from the Commission’s announcement of Hippocratic’s preliminary approval on December 9, 2016, and “possessed a vested property interest in a medical cannabis dispensary license that is cognizable under Article 24 of the Maryland Declaration of Rights.” Here, however, there was no dispute that appellants failed to obtain a permit at the subject property, nor did they make a substantial beginning to reconstruct the building at the property such that “the neighborhood may be advised that the land is being devoted to that use.” Accordingly, the court found the appellants never acquired a vested property interest.

Appellants next contended that they had a claim of entitlement in a medical cannabis dispensary interest. The record reflected that medical cannabis dispensaries were not delineated in the Queen Anne’s County Code. Additionally, the Planning and Zoning Department had not yet made a determination as to what, if anything, a dispensary would be compatible to, and whether or not it would meet the zoning requirements. As such, the court held that appellants did not acquire a vested property interest, and did not have a legitimate claim of entitlement to any other cognizable constitutional interest. Accordingly, the court affirmed the dismissal of appellants’ claims as to Resolution 17-06 and Ordinance 17-06.

Lastly, appellants argued that Ordinance 17-06 was preempted by state legislation. Specifically, they alleged that the Maryland Medical Cannabis Program’s regulatory framework preempted the Ordinance by conflict and implication. The court found the General Assembly did not intend to preempt the entire field of zoning law, or that Ordinance 17-06 prohibited an activity that was intended to be permitted by state law, where the plain language of the regulations required dispensaries, growers, and processors to “conform to all local zoning and planning requirements.” Accordingly, the court found that there was no preemption.

Hippocratic Growth, LLC v Board of County Commissioners of Queen Anne’s County, 2018 WL 3343588 (unrep. MD 7/9/3018)

This post was authored by Matthew Loeser, Esq,

Petitioners were the owners and managers of real property that was adjacent to a 19.5–acre parcel that had been classified as a Business and Technology District (“BTD”) since 1989. The petitioners commenced this combined proceeding pursuant to article 78 and action for declaratory judgment, to challenge Local Law No. 3, which rezoned the adjacent BTD property to a high density residential district. Specifically, petitioners alleged that Local Law No. 3 was adopted in violation of the State Environmental Quality Review Act (“SEQRA”), was not consistent with village’s comprehensive plan, and constituted illegal spot zoning. The Supreme Court, Tompkins County, entered summary judgment in village’s favor, and dismissing the petition.

Here, the record confirmed that prior to enacting Local Law No. 3, the Board and the Village Planning Board, held a number of meetings during which public comments were accepted. Additionally, the Board considered materials submitted by the developers who intended to construct a 140–unit apartment complex on the subject property. These materials included a traffic study, an engineering report and a rental housing needs study. The Board then declared itself lead agency and determined that the zoning change was an unlisted action and completed the short environmental assessment form (“EAF”). Following its review of the completed EAF, the Board issued a negative declaration, finding the rezoning would not have a significant adverse environmental impact. Accordingly, the court affirmed the Supreme Court’s holding that the SEQRA determination was not arbitrary, capricious or affected by an error of law.

As to the claim that the rezoning constituted illegal spot zoning, the record confirmed that the subject property was directly adjacent to areas zoned for residential use and for commercial use. The Board determined that rezoning the subject property from a BTD to an HDRD would create a better transition between the two areas, and be consistent with the comprehensive plan. Local Law No. 3 was therefore consistent with the Village’s comprehensive plan, as it was “calculated to benefit the community as a whole” rather than merely benefitting individuals or a group of individuals. Thus, the court held that the rezoning of the subject property from a BTD to an HDRD was not impermissible spot zoning, nor was Local Law No. 3 adopted in contravention of the comprehensive plan.

Heights of Lansing, L.P. v Village of Lansing, 160 A.D. 3d 1165 (NYAD 3 Dept. 4/12/2018)

This post was authored by Matthew Loeser, Esq.

Islamic Community Center for Mid Westchester (“ICCMW”) had met with local officials to confirm that it could use the property it intended to purchase as a mosque. Yonkers city officials confirmed that the property was zoned for use either as a residence or a house of worship. Several months after ICCMW closed on the property purchase, the group became aware that Colonial Heights Association of Tax Payers had filed an application to designate the property as a landmark. After that application was granted, ICCMW filed this lawsuit in federal district court challenging the landmark designation on several grounds, including: allegations that the designation violated ICCMW’s First Amendment right to the free exercise of religion; and several claims under the Religious Land Use and Institutionalized Persons Act of 2000. The district court dismissed the complaint for lack of subject-matter jurisdiction, and also found the case was not ripe because ICCMW had not yet complied with the “final-decision requirement.”

The district court held this case was not ripe because ICCMW failed to apply for the “certificate of appropriateness” that would, if granted, enable them to pursue their construction projects despite the landmark designation. On appeal, the court agreed that ICCMW’s failure to attain a final decision on its application by availing itself of the local procedure that could remedy its alleged harm, barred it from litigating this claim in federal court. Accordingly, the order of the district court was affirmed.

Islamic Community Center for Mid Westchester v City of Yonkers, 2018 WL 3323639 (2nd Cir. NY 7/6/2018)

The following is posted on the NYSDEC Website:

State Environmental Quality Review Act – Adopted Amendments 2018
The New York State Department of Environmental Conservation (DEC) announces the adoption of revisions to the regulations that implement the State Environmental Quality Review Act (SEQR) to streamline the SEQR process without sacrificing meaningful environmental review.

Among other changes, DEC has adopted amendments to the Type I and Type II lists of actions, as well as the scoping and acceptance procedures for draft environmental impact statements. DEC has also modernized the regulations related to web publication of documents. These changes are the first major amendments to the SEQR regulations that DEC since 1996.

DEC initially noticed its proposal along with the availability of a combined Draft Generic Environmental Impact Statement and SAPA statement in the February 8, 2017 editions of both the State Register and Environmental Notice Bulletin. The comment period continued through May 19, 2017. In response to the many comments received, DEC modified the proposal and noticed a revised proposal along with the availability of a Revised Draft Generic Environmental Impact Statement in the April 4, 2018 editions of both the State Register and Environmental Notice Bulletin. The comment period continued through May 11, 2018, during which the Department received approximately 31 comments in response to the revised proposal. Comments were assessed and responded to in the FGEIS which the Department accepted on June 13, 2018. On June 27, 2018, DEC issued a Findings Statement and formally adopted the rule, which will become effective on January 1, 2019.

The Final Express Terms of the revisions, along with the Findings Statement, FGEIS and other key regulatory documents leading up to the FGEIS may be downloaded from the links set out below.

For links to relevant documents see: https://www.dec.ny.gov/permits/83389.html

 

Posted by: Patricia Salkin | July 14, 2018

2018 NYC Zoning Law Handbook Available

New York City Zoning Handbook is a plain language guide to NYC zoning regulations, with color illustrations and summary descriptions of each zoning district, explanations of basic zoning concepts and regulatory procedures, glossary of zoning terminology, comparative tables and more, 2018.  It is available for $45.00, plus 8.875% sales tax here: https://www1.nyc.gov/site/planning/about/publications.page

See, https://ny.curbed.com/2018/7/9/17548126/new-york-buildings-zoning-handbook-department-city-planning

This post was authored by Matthew Loeser, Esq.

On May 2, 2016, the Plan Commission of the Town of Erin approved a conditional use permit (CUP) for Nancy Zelman’s neighbor to open a wine business. Zelman appealed that decision to the Town Board. At a hearing on the appeal, at which Zelman was present, two members of the board voted in favor of a motion to deny the CUP and two members voted against the motion, resulting in a failure of the motion. In this case, Zelman appealed from the circuit court’s grant of summary judgment to the Town of Erin, Plan Commission of the Town of Erin, and Town Board of the Town of Erin.

On appeal, Zelman first contended the circuit court erred in dismissing her claim against the Town on the basis that it was not a proper party. The court found that the Plan Commission and Town Board, rather than not the Town, made the actual decisions from which Zelman sought judicial review by certiorari. As such, the court held the circuit court correctly determined that the Town was not a proper party.

Zelman next challenged the holding that her amended complaint was not filed timely. The record reflected that Zelman filed her amended complaint on November 9, 2016. The circuit court held the filing was untimely because the court believed the thirty-day limitation period began to run on September 19, 2016, when Zelman attended the hearing at which the Town Board voted two-to-two on the motion to deny the CUP. The court determined that under the relevant statutory provisions, the “decision maker” in an administrative appeal was required to mail or deliver its written determination to the person who sought the appeal. Thus, the thirty-day limitation period would begin when the relevant person received the mailed or delivered written determination or copy of the decision on review, not when the CUP was recorded with the register of deeds.

Here, Zelman claimed that she called the register of deeds on October 11, 2016, and confirmed that the CUP had been recorded on October 10, 2016. Zelman then went to the Register of Deeds of Washington County and obtained a certified copy of the CUP that day. The copy of the CUP Zelman provided contained a certification indicating it was recorded on October 10, 2016, which was signed by the “Register of Deeds or Deputy” and indicated it was certified as a true and correct copy on October 11, 2016. Accordingly, the court found the earliest date Zelman could have been in receipt of a final determination related to the CUP was when she procured the CUP from the register of deeds office on October 11, 2016. Therefore, Zelman timely filed her amended complaint because she filed it within thirty days of October 11, 2016.

Zelman v Town of Erin, 2018 WL 3391939 (WI App. 7/11/2018)

This post was authored by Matthew Loeser, Esq.

Plaintiffs owned residential properties in the City of Cortland, Cortland County and primarily rented their properties to groups of college students. With certain exceptions, a local ordinance required owners to obtain a rental permit before renting or leasing any rental building or structure in the City of Cortland, and limited the occupancy of dwelling units to a “family,” as that term was defined in Cortland City Code chapter 300. In 2010, plaintiffs commenced this declaratory judgment action contended that the terms “family,” “functional equivalent of a traditional family” and “certificate of zoning compliance”  were unconstitutionally vague, that limiting the occupancy of dwelling units to a family was not reasonably related to a legitimate governmental purpose and that the disclosure requirements set forth in Cortland City Code § 102–9, with respect to the number of tenants residing in a given unit, violated their Fifth Amendment privilege against self-incrimination. The Supreme Court of New York dismissed Plaintiffs’ claims, and Plaintiffs appealed.

The court found that the term “family” was defined in the Cortland City Code as “one, two or three persons occupying a dwelling unit” or “four or more persons occupying a dwelling unit and living together as a traditional family or the functional equivalent of a traditional family” Additionally, it was “presumptive evidence that four or more persons living in a single dwelling unit who are not related by blood, marriage or legal adoption do not constitute the functional equivalent of a traditional family.” Furthermore, the ordinance provided detailed criteria to be utilized when assessing whether a group of four or more individuals who are living together and who have no blood or legal relationship are the functional equivalent of a traditional family. Accordingly, the court agreed with Supreme Court that the term “certificate of zoning compliance” was readily discernable from its plain language and from the case law referencing this document, and that a person of ordinary intellect would understand it to be a document certifying that a property complies with a zoning ordinance.

Lastly, plaintiffs argued that the manner in which the terms “family” and “functional equivalent of a traditional family” were defined did not reasonably relate to a legitimate governmental purpose. The record therefore reflected that the rental occupancy restriction was enacted to serve a legitimate governmental interest in diminishing public nuisances created from the overcrowding of dwelling units occupied by transient residents. Moreover, the ordinance did not favor certain types of families over others, or restrict the size of unrelated persons living as a functionally equivalent family without also restricting the size of a traditional family. As such, the court held plaintiffs failed to establish that the challenged provisions of the ordinance were unconstitutional.

Grodinsky v City of Cortland, 2018 WL 3383637 (NYAD 3 Dept. 7/12/2018)

This post was authored by Matthew Loeser, Esq.

An undeveloped parcel of land in the town of Norfolk measured only 7,650 square feet, and therefore did not meet the minimum lot size requirement set forth in the town zoning bylaw. The relevant town officials concluded that the parcel did not enjoy “grandfathered” status, because it was held in common ownership with adjacent lots when the town first adopted a minimum lot size requirement in 1953, and thus the lots had to be treated as one under the doctrine of merger. The Land Court rejected that position, holding that the parcel was not rendered unbuildable based on its being held in common ownership with adjacent land in 1953. Nevertheless, the judge ruled that the parcel was rendered unbuildable under the doctrine of merger based the acquisition of the parcel in 2012, by the Kneer Family Revocable Trust. The parcel then was held by Kneer and Mead as co-trustees.

The record reflected that because Mead possessed broad authority to take actions with respect to trust assets without needing to seek Kneer’s prior approval, the judge ruled that this effectively gave her “legal control” of the parcel. As such, the judge found the parcel was held in common ownership with the adjacent property that Mead owned individually. On appeal, the court noted that this holding failed to account for the fact that Mead’s powers over the parcel necessarily were subject to her fiduciary obligations. Specifically, despite the breadth of the authority that Mead possessed as co-trustee, she still could not lawfully use the parcel to lessen the nonconformity of her own property with the minimum lot size requirement. Accordingly, Mead’s status as co-trustee of the trust that owned the parcel did not, by itself, render the two properties as being held in common ownership.

Next, while the judge found that Mead “in fact has exercised control over the … parcel,” and rejected Kneer’s claim that Mead was leading the effort to develop it “simply to help her mother,” it was uncontested that in seeking to develop the parcel, Kneer was the one in whose name the permits were sought. The court therefore held that the parcel was not rendered unbuildable pursuant to the doctrine of merger. However, since it was possible on this record that facts could be found that would support merger on other grounds, the court remanded the case for further proceedings.

Kneer v Zoning Board of Appeals of Norfolk, 2018 WL 337165 (MA App. 7/11/2018)

 

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