This post was authored by Matthew Loeser, Esq.

Downtown Pantry operated a business selling food and alcoholic beverages under a CUP originally issued in 2010. After the Pantry moved to its present location in Des Moines, the Board issued a new CUP. The Pantry was compliant with its CUP and, in 2016, the Board unanimously approved the Pantry’s request to amend the CUP, which allowed an expanded display area for alcoholic liquor and wine. In 2017, Despite the Pantry has never been cited for a violation of the conditions of its CUP or amended CUP, the Neighborhood Inspection Zoning Administrator SuAnn Donovan sent a letter to the Pantry’s owners, Shahid and Aileen Mahmood, stating she was seeking a reconsideration of the CUP because the business had become a nuisance. The Board voted unanimously to revoke the Pantry’s CUP, and the district court reversed, holding the Board’s finding that the Pantry’s operation had created a nuisance was not supported by substantial evidence.

The Pantry argued that to establish a nuisance, there needed be evidence that the Downtown Pantry was actually causing the problems resulting in the calls. It further alleged Hy-Vee was located within two-tenths of a mile and had a substantially larger selection of alcoholic beverages, and more than a dozen bars and restaurants served alcohol within a half mile of the Pantry. Additionally, the Pantry had a policy and store signage prohibiting loitering. In response to one officer’s claim of “an enormous uptick” in problems when the Downtown Pantry opened, the court found, “the significant increase in calls for police began in 2017, and Downtown Pantry has operated its business in the location since 2013.”

The district court also noted that other factors contributed to the situation in the area and calls to the police, inclusive of: “the completion of the construction of the Sixth and Walnut intersection, the installation of benches, persons shoplifting narcotics from the Walgreens, the presence of the bus station two-tenths of a mile from the Pantry, foot traffic from a bus stop located across the street from the Pantry, the Hy-Vee two-tenths of a mile away, and the homeless shelter six-tenths of a mile away.” Accordingly, the court affirmed the district court’s holding that the Board’s revocation of the Pantry’s CUP was unreasonable, arbitrary, and capricious.

S & A 786, LLC v. City of Des Moines Zoning Board of Adjustment, 2019 WL 4678161 (IA App.  9/25/2019)


This post was authored by Matthew Loeser, Esq.


Plaintiff Village Green at Sayville, LLC intended to build a housing project on its property. In 2006, the Town Board granted Plaintiff’s application to re-zone the property from Business One to Residence CA. A Residence CA zoning district generally allows rental properties as a matter of right; however, this re-zoning was conditioned on Plaintiff accepting certain covenants and restrictions (“C&Rs”) including that the permitted condominiums would be owned by those dwelling in the units, and accordingly not a rental property. The C&Rs also required connection to an off-site sanitary treatment plant (“STP”). Plaintiff alleged that connection to an STP “became impossible, in part due to the Town and local school district’s refusal to grant a required easement and the Town’s subsequent approval of a project that utilized the remaining capacity of the only off-site STP to which Plaintiff could connect.” As a result, Plaintiff filed an application with the Town Board to modify the C&Rs to eliminate the covenants requiring condominiums owned by the unit dwellers and an off-site STP.


A month after the Town Board meeting on Plaintiff’s application in which the motion to approve did not pass, Plaintiff’s attorney, Joseph Buzzell, had a conversation with the Town Attorney, John DiCioccio, who stated “the Town is treating the failed motion to approve as a denial of the Plaintiff’s application, and that no further proceedings before the Town Board, Planning Board, or any other Town Agency would be held.” As a result, Plaintiff commenced an Article 78 action against Defendants in state court asking the court to: declare that the covenants are illegal and unenforceable; order the Town to review and approve Plaintiff’s application and site plan; and issue the necessary building permits. That matter was scheduled for trial in November 2019. While that case was pending, Plaintiff brought this case, and subsequently filed an Amended Complaint alleging violations of:  the FHA; 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment; NYSHRL § 296(6); substantive due process under the Fourteenth Amendment; and the takings clause of the Fifth and Fourteenth Amendments.


At the outset, the court found Plaintiff did not have standing to bring its FHA claim because there was no final decision, and therefore no injury, as Plaintiff did not have a “final, definitive position” from the municipal entity. Here, Plaintiff’s claim relied on a non-vote and an alleged statement by the Town attorney absent any citation to binding precedent suggesting either constituted a final decision, or was otherwise binding on the Town Board. For this same reason, the court dismissed the fourth cause of action for violations of 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment; the sixth cause of action for violations of substantive due process under the Fourteenth Amendment; and the seventh cause of action for violations of the takings clause of the Fifth and Fourteenth Amendments.


Notwithstanding the above, Defendants did not mention whether a final decision was required to have standing to bring a § 1981 or § 1982 claim, and failed to cite any authority in support of their argument. Here, Plaintiff brought suit against Defendants for allegedly refusing to amend Plaintiff’s C&Rs on the basis of racial discrimination while amending the C&Rs of another project that was in a minority neighborhood. The court noted that “under § 1981, a plaintiff does not have to be a member of a racial minority to bring a claim; rather, a non-minority plaintiff can allege personal injury stemming from a defendant’s discriminatory conduct against a racial minority.” As precedent existed for allowing a corporation to bring a § 1981 claim, Defendants’ motion to dismiss Plaintiff’s § 1981 and § 1982 claims was denied. Defendants were directed to file a renewed motion to dismiss on the limited question of whether a final decision was required for standing and ripeness for § 1981 and § 1982 claims. Likewise, Defendants motion to dismiss Plaintiff’s NYSHRL was denied with the same instruction.


Village Green at Sayville, LLC v Town of Islip, 2019 WL 4737054 (EDNY 9/27/2019)

This post was authored by Matthew Loeser, Esq.


In this case, plaintiffs, the owners and operators of gentlemen’s cabarets (strip clubs) and adult bookstores primarily located in Manhattan, challenged the constitutionality of amendments to sections of the Zoning Resolution of the City of New York that defined and applied to adult establishments. Plaintiffs sought to preliminarily enjoin the City, the Mayor of the City, and the City’s Commissioner of Buildings from enforcing the amendments, which would subject them to the City’s stringent zoning and permitting scheme for adult establishments. Plaintiffs further sought to enjoin Defendants from enforcing the 2001 Amendments, as well as a judgment declaring the 2001 Amendments to be facially unconstitutional.


Defendants did not dispute the presumption that a movant can establish irreparable harm in the absence of injunctive relief where the claims involved an alleged deprivation of a constitutional right. Here, however, the court found that the City’s adult-use regulations were “properly analyzed as a form of time, place, and manner regulation” because they did not categorically ban adult establishments, but principally restricted their location. The court next determined City’s adult-use regulations were content-neutral. Even though the 1995 Regulations and the 2001 Amendments only applied to adult establishments, they were justified by the desire to reduce the adverse secondary effects of adult establishments, based on a fair read of the City’s Department of City Planning (“DCP”) 1994 “Adult Entertainment Study,” a 1995 CPC Report, and a 2001 CPC Report. As such, the court applied intermediate scrutiny to analyze the 2001 Amendments.


Under intermediate scrutiny inquiry, the court noted the narrow tailoring requirement would be satisfied so long as the regulation promoted a substantial governmental interest that would be achieved less effectively absent the regulation. Here, defendants’ interest of reducing the negative secondary effects of establishments with adult-oriented businesses qualified as a “substantial governmental interest.” Nevertheless, plaintiffs argued that the 2001 Amendments failed to satisfy the narrow tailoring requirement based on the lack of evidence of new or continuing secondary effects from 60/40 establishments. The court rejected this position, finding the defendants only needed to demonstrate that the 2001 Amendments promoted the City’s interest in reducing secondary effects more effectively than if they did not exist.


The court also rejected plaintiffs’ contention that the availability of adequate sites must be considered on a county-by-county basis. Specifically, plaintiffs’ argued that defendants were required to demonstrate the presence of sufficient alternative channels for adult expression in Manhattan. By borough, the DCP identified 36 lots in Manhattan, over 700 lots in Brooklyn, nearly 1,000 lots in Queens, over 550 lots in the Bronx, and over 550 lots in Staten Island that could accommodate adult businesses. Conversely, plaintiffs’ expert, Michael Berzak, testified that the potential alternative sites for adult businesses to relocate had substantially diminished since 1995, and there was no reason to believe that this result would not also be found in the outer boroughs. Based on this evidence, the court found that, at this stage in the litigation, plaintiffs sufficiently demonstrated the enforcement of the 2001 Amendments would deny them adequate alternative channels to offer their adult expression.


Lastly, several of the adult club plaintiffs and adult bookstore plaintiffs submitted affidavits attesting to the hardship they would face if the 2001 Amendments were enforced, including the loss of their businesses, the potential breach of their contracts and leases, the possibility that their employees would lose their jobs, the threat of criminal prosecution, and the financial and time costs of relocation. As granting the requested relief would not result in any harm to defendants, who had already refrained from enforcing the 2001 Amendments for eighteen years, the court granted plaintiffs’ motions for preliminary injunctions.


725 Eatery Corp. d/b/a “Lace”, et. al., v City of New York, 2019 WL 4744218 (SDNY 9/30/2019)


This post was authored by Matthew Loeser, Esq. 

Plaintiffs Robert and Alison Murchison owned a single-family home in Sherborn. Defendants owned a vacant three-acre lot across the street from the plaintiffs’ property. Both lots were in Sherborn’s Residence C zoning district, in which each lot was required to have a minimum lot width of 250 feet. In 2016, Sherborn’s zoning enforcement office (“ZEO”) issued a foundation permit for a single-family residence on the defendants’ property. Plaintiffs filed a timely notice of appeal to the Sherborn zoning board of appeals, upheld the ZEO’s issuance of the permit. The plaintiffs then appealed the board’s ruling to the Land Court, which dismissed their case for lack of standing.


On appeal, plaintiffs claimed they were aggrieved because the lot width requirement protected their interest in preventing the overcrowding of their neighborhood and that this interest would be harmed by the proposed development. Here, Sherborn’s zoning bylaws at issue contained dimensional requirements that protect neighbors from overcrowding. As such, the court found that both the Zoning Act and Sherborn’s bylaws protected the interest against overcrowding, and the violation of same could give rise to plaintiffs standing.


Defendants argued that the plaintiffs could not be aggrieved by a violation of the density provisions of the bylaws since existing development was not “already more dense than the applicable zoning regulations allow.” The court rejected this contention and found that the question for standing purposes was whether there was a particularized non-de minimis harm resulting from the unlawful overcrowding. It further noted that this harm can be caused by a first violation as well as a second or subsequent one. Here, the harm to the property owner from having a house across the street closer to his or her own than is permitted by the density-protective bylaws was  different in kind from that suffered in an undifferentiated fashion by all the residents of the neighborhood, and was sufficiently particularized to support a claim of standing to challenge the alleged violation.


Lastly, the defendants argued that any harm was de minimis due to the large size of the lots at issue, pushing against what they describe as “the absurdity of arguing that homes on three-acres (or Plaintiffs’ thirteen-acres) can be too close together.” The court found that although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants did not argue existed, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. Since the plaintiffs put forth credible evidence to establish standing, the court reversed the judgment of dismissal and remanded the case for further proceedings consistent with this opinion.


Murchison v Zoning Board of Appeals of Sherborn, 2019 WL 4747046 (MA App. 9/30/2019)


This post was authored by Matthew Loeser, Esq.

Plaintiff Keith L. Miller, an attorney, was the trustee of the MRFS Living Trust, which owned real property located in Gloucester, Massachusetts that was the intended location for a proposed cell tower site. In this case, Miller alleged that Defendants SBA Towers V, LLC and New Cingular Wireless PCS, LLC and the City of Gloucester intentionally deprived him of statutorily required notice of the Zoning Board of Appeals proceedings concerning a variance needed to build the cell tower.

Miller first alleged that the failure to receive notice was a violation of his right to procedural due process under the Constitution and 42 U.S.C. § 1983. The court found that even if Miller were legally entitled to statutory notice as a “party in interest,” he failed to allege a cognizable due process violation as he only claimed he failed to receive notice without also alleging a deprivation of property. Moreover, Miller’s due process claim was barred because he had actual notice of the ZBA hearings and notice that the ZBA was planning to render a decision. The record indicated that Miller stated that after receiving an email from the City: “I called my friend and I said, ‘Do I have a notice in the mailbox?’ No notice. Okay, I guess I’m not an abutter because maybe there are two deeded parcels.’” Thus, the court held Miller could not now claim to be deprived of any opportunity to be heard or to appeal the decision when he admitted he voluntarily chose not to go to any of the meetings and did not make an effort to read the final, publicly docketed decision.

Miller next claimed that the Wireless Defendants engaged in unfair and deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 and 9. This claim was dismissed under Federal Rule of Civil Procedure 12(b)(6) as chapter 93A only applies to conduct that occurs in the course of trade or commerce. Additionally, the court allowed the Wireless Defendants’ special motion to dismiss under Massachusetts’s anti-SLAPP statute as the claim was based exclusively on the Wireless Defendants’ protected petitioning activities. While Miller contended that the petition was a sham not grounded in law because the Wireless Defendants provided an incomplete list of “parties in interest”, the City’s tax assessor provided the list of abutters, and there was no plausible allegation that the Wireless Defendants knew that the list was incorrect.

As a final matter, an examination of the record reflected that Miller was copied on numerous emails between October 6, 2014 and December 11, 2014, in which opponents of the proposed tower discussed, in detail, the ZBA hearing schedule for the proposed tower. The emails demonstrated that Miller had actual notice that the ZBA was holding hearings on the Wireless Defendants’ application and that it would likely be issuing an opinion to transfer the ultimate decision to the City Council. Therefore, Miller’s allegations that he lacked actual notice and was therefore deprived of the opportunity to be heard were unsupported by the evidence. Accordingly, the court allows Defendants’ motion to impose sanctions on Attorney Keith L. Miller for these false statements made in the First Amended Verified Complaint and subsequent affidavit.

Miller v. SBA Towers V, LLC, 391 F.Supp.3d 123 (DMA 2019)

This post was authored by Matthew Loeser, Esq.

Polk Properties, LLC and Donald J. Thoma purchased the subject property in 2006 to develop the farmland into a residential subdivision. Later that year, Polk successfully requested that the Village rezone the property from agricultural to residential, and recorded a restrictive covenant limiting the use of the property to residential. In December 2012, the circuit court issued an injunction prohibiting Polk from continuing agricultural activities. Polk’s agricultural use from 2009 to 2012 entitled it to pay lower property taxes from 2010 to 2013. In this case, Polk challenged the circuit court’s order subjecting Polk to daily forfeitures for the violation of zoning law and its related contempt order. Polk also appealed the circuit court’s determination that Polk’s breach of the restrictive covenant entitled the Village to recover as damages the difference between what Polk was taxed for agricultural use and what Polk should have been taxed at the residential rate for the years 2010 through 2013.

On appeal, Polk argued that it did not violate the zoning code since its continued agricultural use after the property was rezoned residential was a legal nonconforming use of the property. Polk further claimed that it harvested the land several times a year, since 2005. The record belied this claim, however. Specifically, Polk sought and obtained the rezoning of the property from agricultural to residential, and executed and recorded the Declaration, with the restrictive covenant that each lot “shall be occupied and used only for single family residential purposes and for no other purpose.” The court found these actions were sufficient to constitute a voluntary abandonment. Polk’s breach of its restrictive covenant, by failing to maintain the property as only residential, entitled the Village to recover its tax differential as damages. While Polk claimed that the Village failed to prove the number of days on which a zoning code violation occurred, the undisputed evidence presented at the hearing showed continued agricultural activity of farm equipment, cutting, bailing, and removing crops from the property through August 2017.

Polk next contended that another provision of the Declaration Article, 10.1, allowed agricultural use, and the injunction should therefore have never been issued. Here, the zoning at the time the restrictive covenant was recorded precluded agricultural activities. Moreover, Article 10.1 related to the general business of selling the lots, such as putting in an office and signs, and showing models. The court found that there was no indication that agricultural activities would be included in the business of selling the lots. Article 5.1, the Article that actually applied to Polk, was without exception and was clear that the subdivision was to be residential.

In May 2013, Polk filed an amended Declaration with new language in art. 10.1 which explicitly allowed Polk to use the outlots and unsold lots for agricultural activities. Based on the language contained in articles 5.1 and 11.3 of the Declarations, it was undisputed that Polk simultaneously agreed to a residential purposes restriction and made the Village a beneficiary vested with the power to enforce that restriction. As the record reflected that the Village had not “released or waived in writing” the residential purposes restriction, the court found that Polk could not unilaterally amend the Declarations to change the residential purposes only restriction. Accordingly, the circuit court’s order was affirmed.

Village of Slinger v. Polk Properties, LLC, 2019 WL 2997993 (WI App. unpub. 7/10/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiffs Michael Fowler and Epona, LLC wanted to use their 40-acre property to host private, invitation-only weddings and related celebrations for friends and family, and to generate income to support the ongoing employment and housing of the farm employees. The property at issue was located in the Hidden Valley community, in which there are no permitted wedding venues. In 2018, the court issued a preliminary injunction prohibiting Defendant County of Ventura from: enforcing or applying certain Ventura County Non-Coastal Zoning Ordinance (“NCZO”) provisions to prevent Plaintiffs from conducting weddings on their property so long as they complied with certain conditions, and enforcing or taking any adverse action against Plaintiffs because of any Notices of Violation (“NOVs”) or similar notices that Defendant issued to Plaintiffs because of weddings. Defendant then informed the court that it had amended certain provisions of the NCZO, and that such amendments would take effect on August 17, 2018. On August 3, 2018, Plaintiffs filed a Third Amended Complaint (“TAC”), which challenged these Post-Injunction Amendments.

Plaintiffs first contended that the Post-Injunction Amendments were facially invalid because they did not provide adequate time limits for the processing of CUPs and for proceedings to challenge NOVs issued for weddings. The court rejected this position, noted that the Ninth Circuit has held that “the procedural safeguards doctrine is relevant only to explicit censorship schemes, not to content-neutral schemes.” Thus, the time limitation issue would only be contemplated in non-content neutral cases. Here, the revised permitting scheme covered any “outdoor event held in a stationary location on a privately owned parcel at which the primary event activities occur outside of structures” except for those that are otherwise regulated under the NCZO, and included “harvest festivals; carnivals; … animal events; … farmers markets.” As the scheme included other activities that were not inextricably linked with expressive activity, the court found that this was a content neutral case. Thus, the Post-Injunction Amendments did not need to guarantee that CUP decisions and decisions on appeals of NOV decisions were made “within a specified brief period.”

Plaintiffs next argued that the exemptions to the CUP requirement gave unbridled discretion to Defendant’s decisionmakers. Specifically, Plaintiffs alleged under newly added NCZO section 8107-46.3.a, a landowner may exceed certain attendee limitations only if “the event and the number of attendees are such that the use is customarily incidental, appropriate and subordinate to a principal use of the parcel” and “no consideration in any form is provided for allowing use of the parcel for the event.” Here, despite Plaintiffs contention that they sought to host “private, invite-only weddings and related celebrations for friends and family and also for the purpose of generating sufficient income to support and sustain the cultivation of the vineyards and the gardens,” they did not allege that they intended to host any weddings with more than 250 attendees for no consideration whatsoever. As there was no indication that Plaintiffs could be eligible for the exemption created by NCZO section 8107-46.3.a.2, the court found Plaintiffs lacked standing to raise a facial First Amendment challenge to that aspect of the revised CUP scheme.

Lastly, Defendant moved to dissolve the preliminary injunction the Court issued on March 9, 2018 on the ground that the Post-Injunction Amendments moot Plaintiffs’ request for injunctive relief. As the court found Plaintiff had no likelihood of success on its facial First Amendment challenge to the currently operative ordinance that governed Outdoor Events, it held that Plaintiffs were no longer entitled to an order enjoining Defendant from enforcing the CUP ordinance scheme. Despite this. Defendant did not establish that the court should dissolve the order barring it from taking adverse action against Plaintiffs on account of the prior NOVs. Here, NCZO section 8107-46.5 provided that CUP applications “shall not be accepted if two or more final violations have been issued in the last two years”. As this text did not prevent Defendant from continuing its prior, practice of relying upon closed NOVs to deny permit applications, the court only granted Defendant’s motion to dismiss as to the dissolution of the injunction barring it from enforcing the NCZO to prevent Plaintiffs from hosting weddings without a CUP.

Epona, LLC, et al. v. County of Ventura, 2019 WL 4187393 (CDCA 4/12/2019)

This post was authored by Matthew Loeser, Esq.

Timber Lakes Property Owners Association brought suit against Phillip E. Cowan, Gail M. Cowan, and The Cowan Family Trust seeking injunctive relief requiring the Cowans to remove a detached garage they constructed on their property. The district court granted summary judgment in favor of the Association, holding that the garage violated the applicable Declaration of Protective Covenants, Conditions, Restrictions and Management Policies for Timber Lakes Estates (the “CC&Rs”). Notwithstanding its finding that a violation had occurred, the court declined to grant the permanent injunction the Association sought, as the Association “had not shown that an award of monetary damages would be insufficient to remedy the purported harm” and had therefore failed to establish irreparable harm, which was a prerequisite of injunctive relief.

On appeal, the Association argued that it “has contemplated, and does contemplate, installation of a road along the Plat 12 Right-of-Way.” However, apart from this speculative future project, which construction the garage would inhibit, the Association failed to assert any other form of harm caused by the garage. As such, the court found that the Association only demonstrated a theoretical future harm, rather than an existing harm that was irreparable.

The court further found that even had the Association had definite plans to construct a road along the Plat 12 Right-of-Way, it failed to demonstrate that the district court abused its discretion when it determined that “the Association had not shown that an award of monetary damages would be insufficient to remedy the purported harm” caused by the Cowans’ garage. Despite the Association’s assertion that the use of engineers, contractors, and other experts to find a satisfactory alternate to a road built within the Plat 12 Right-of-Way and to calculate the cost of such an endeavor could not be estimated by “any accurate standard,” the court held that the district court did not abuse its discretion in concluding that the Association did not suffer an irreparable injury from the location of the Cowans’ garage.

Lastly, the Association challenged the district court’s holding that the Maintenance Agreement entered into by the Association and the County did not “delegate authority to the Association to enforce a violation of the County Setback Ordinance.” Here, the Maintenance Agreement explicitly granted the County the right to “bring and prosecute a suit in the name of the Association” in order to enforce the CC&Rs that the County would otherwise not be entitled to enforce. Although this did not rise to the level of an assignment, the Maintenance Agreement did not provide a reciprocal right to the Association to enforce county ordinances either in the name of the County or as an assignee of the County. Accordingly, the court rejected the contention that the County intended to assign its right to enforce zoning ordinances to the Association.

Timber Lakes Property Owners Association v Cowan, 2019 WL 4678133 (UT App. 9/26/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiffs Up State Tower Co., LLC and Buffalo Lake Erie Wireless Systems Co., LLC submitted an application to construct a telecommunications tower. In this case, Plaintiffs claimed defendants the Town of Southport, New York, the Zoning Board of Appeals of the Town of Southport, New York (“ZBA”), and the Planning Board of the Town of Southport, New York unlawfully denied their application for a site plan approval and area variance to erect a wireless telecommunications tower.

Plaintiffs first argued that Defendants did not act within the scope of the legislative grant given to the Town by Article 16 of the New York Town Law, and that Plaintiffs were entitled to a declaratory judgment that certain provisions of the Town Zoning Law were unlawful and that Plaintiffs were therefore not liable to pay the fees charged by Defendants. The law at issue, Town Zoning Law § 525-50, did include a “reasonable” limitation; however, it did not limit the fees to those that were “necessary.” Furthermore, the ordinance did not contain a codified limit such as an audit procedure or guidance as to what fees can be charged. As such, the fees were only subject to the “unfettered discretion” of the Planning Board. Thus, while Plaintiffs did not move for summary judgment, the Court held summary judgment should be granted in Plaintiffs’ favor as to the declaratory judgment claim.

Plaintiffs next contended that Defendants’ denial of the Application was not based on substantial evidence since the Application initially provided by Plaintiffs was sufficient and the supplemental information Defendants requested was arbitrary. The record reflected that the ZBA had requested Plaintiffs provide it with additional information: more alternative locations, an explanation of why Plaintiffs want to locate the tower near State Route 14, and evidence Plaintiffs made attempts to co-locate that were denied. Despite Plaintiffs’ agreement to submit these documents, they failed to do so until June 1, 2018, three weeks after the time permitted had expired. Additionally, the record showed that Defendants made efforts to extend the Shot Clock by contacting Plaintiffs at least three months before it was set to expire and inquiring about an extension no less than five times. Defendants’ motion for summary judgement as to the substantial evidence claims was therefore granted.

The court further held that Defendants’ denial of the Application did not violate the effective prohibition provision of the TCA, as a reasonable trier of fact could not find on the record that Plaintiffs’ initial Application demonstrated that their proposal was the only feasible plan. Specifically, in their Application, Plaintiffs only provided a cursory analysis of three alternative sites, and one existing tower for potential co-location. Moreover, the court found a reasonable trier of fact could not find Defendants’ willingness to review an application with supplemental materials, that Plaintiffs agreed to provide, rose to the level of an effective prohibition on the provision of wireless services. Accordingly, the Court gratned Defendants’ motion for summary judgment as to this claim.

Up State Tower Co., LLC v. Town of Southport, New York, 2019 WL 4674298 (WDNY 9/25/2019)

This post was authored by Matthew Loeser, Esq.

Petitioners appealed from a judgment that granted the motion of the Heckl respondents to dismiss the petition against them and granted the motion of the ZBA and Planning Board for summary judgment dismissing the petition against them, thereby dismissing the petition in its entirety. The project in question involved demolishing a residence and garage behind a former church building in a residential neighborhood and constructing a three-story building that would house an art gallery on the first floor and eight apartments on the second and third floors. The Heckl respondents previously obtained approvals to renovate the former church building for use as a visual and performing arts center.

The court noted at the outset that the petition was not filed until months after the 30–day limitations period set forth in General City Law § 81–c (1) had expired. As such, the court declined to consider petitioners’ contention regarding the ZBA’s alleged noncompliance with SEQRA. Even assuming, that petitioners’ substantive contentions with respect to the variances granted by the ZBA were timely, however, the court found the ZBA properly took into account the relevant factors set forth in General City Law § 81–b (3) and (4) and made detailed findings with respect to those factors. Accordingly, the court conclude that its determination to grant the variances was not illegal, arbitrary, or an abuse of discretion.

Lastly, contrary to petitioners’ contention, the court held that the Planning Board’s determination to issue a negative declaration pursuant to SEQRA was not in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or an abuse of discretion. Additionally, the court held the Planning Board’s determination to approve the site plan was supported by substantial evidence and has a rational basis.

Campaign for Buffalo History Architecture & Culture, Inc. v Zoning Board of Appeals of the City of Buffalo, 2019 WL 2896742 (NYAD 4 Dept. 7/5/2019)


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