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)

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.

2515 Company L.L.C. applied for a use variance to sell used motorcycles in a local retail business district within the City of Cleveland. Appellant Carrie Kurutz, a local resident, objected on grounds that the proposed use would destroy the residential character of the neighborhood. The City of Cleveland’s Board of Zoning Appeals granted the variance, but with significant restrictions on the manner in which 2515 Company could operate the dealership. Kurutz appealed to the court of common pleas, but the court denied her appeal, and found the Board’s decision to grant the variance was supported by a preponderance of reliable, probative, and substantial evidence.

Here, the record reflected that at no point in 2515 Company’s presentation to the Board did it touch on any aspect of how the denial of a use variance to sell motorcycles would cause it unnecessary hardship “not generally shared by other land or buildings in the same district.” Thomas Gillespie, who through a different corporation owned 99 percent of 2515 Company, admitted that he could have put the space to other uses, but said that doing so would not be in keeping with his vision for the neighborhood: “I can put a bar in there tomorrow. I could put a bar in any of these things because there’s enough cash flow and enough people walking around, but we as a community are trying not to do that and this is a perfect solution.” Gillespie further told the board that “I’m not going to lease the space to a tenant or use that doesn’t complement the rest of the neighborhood, complement the vision of the street, complement all the efforts I have put into the building itself.”

The court found that while the goal of preserving the character of the neighborhood was praiseworthy, that goal was not a basis for finding that an unnecessary hardship existed sufficient to grant a use variance. The court therefore held that there was no evidence to support the court’s finding that there was reliable, probative, and substantial evidence supporting Board’s decision to grant the use variance. Accordingly, the court reversed and remanded the case to the trial court for further proceedings.

Kurutz v City of Cleveland, 2018 WL 3089249 (OH App. 6/21/2018)

This post was authored by Matthew Loeser, Esq.

Leland Mascaro and Sheri Mascaro (collectively, the Mascaros), claimed they owned the subject property since 1979, when Leland’s grandfather gave it to them as a wedding gift. In 2009, Herriman City annexed the property, which previously had been within Salt Lake County’s jurisdiction. Under the Herriman City Code, the Mascaros’ use of the Property to perform topsoil manufacturing and screening was classified as a conditional use, not a permitted use. As such, the Mascaros submitted a request to the Herriman Zoning Administrator, seeking a determination that a nonconforming use had been established on the property. The Zoning Administrator denied the request, and the Mascaros appealed the denial to the Herriman City Planning Commission. In this case, the Mascaros appealed the district court’s grant of summary judgment in favor of Herriman City, affirming Herriman City’s denial of the Mascaros’ request for nonconforming use status.

The record reflected that although Herriman City acknowledged that Salt Lake County might have approved a nonconforming use, the Mascaros failed to provide the application or any documentation from the county showing which nonconforming use, if any, was “granted.” Additionally, before the Commission, the Mascaros conceded that they did not have any evidence “either conclusively proving or conclusively disproving” a prior legal use. The court found that these concessions supported the district court’s determination that the Appeal Authority’s decision was not arbitrary and capricious.

The Mascaros next argued the Appeal Authority’s “strict application” of a court order rendering the Riverton City annexation “null and void and of no effect” was illegal because they relied on the annexation to conduct their topsoil manufacturing and screening operation. Herriman City contended that the Mascaros failed to preserve the argument that they relied on Riverton City’s annexation and the court should therefore not address the merits of this argument. Here, the Mascaros failed to provide any “legal authority regarding the regulatory status of property which is the subject of a challenged annexation.” Thus, the Mascaros failed to provide the Appeal Authority the opportunity to resolve whether an exception applied to a court’s determination that a city’s annexation is null and void and of no effect. Since the Mascaros failed to prove that their use of the Property for topsoil manufacturing and screening was legally established under either Riverton City or Salt Lake County jurisdiction, the court found the Appeal Authority properly upheld the Commission’s denial of the request for nonconforming use status

LJ Mascaro Inc. v Herriman City, 2018 UT 12766 (6/21/2018)

This post was authored by Matthew Loeser. Esq.

This case arose from Contra Costa County’s enforcement of its zoning and building code in finding that the second living units on the properties of Plaintiffs Clark and Karla Fratus were unlawful. Plaintiffs overturned the administrative decision that found their properties unlawful, and then filed an action in federal court claiming violation of federal and state laws in connection with the original administrative rulings. Three days before the district court entered judgment in the first federal action, the County denied the Plaintiffs’ application for permits for their second units. The Plaintiffs brought a second action, which alleged federal law claims of First Amendment retaliation and violations of substantive due process and equal protection as well as several state law claims. The district court granted the County summary judgment with respect to the substantive due process and equal protection claims on the ground that they were barred by res judicata, because the Plaintiffs could have brought their action before the judgment was entered in the first case.

On appeal, Plaintiffs argued res judicata did not apply because their second complaint was based on different events, including the denial of a permit and a loan as well as the failure to reverse penalties on a delinquent tax bill. The court found that the County’s actions were based upon the same interpretation of the relevant code provisions and applied to the same properties. As such, the court held that the nucleus of facts was the same, and the Plaintiffs’ claims based on those facts were thus barred by res judicata.

The Plaintiffs next contended that their challenges to the County’s conduct could not have been brought in the first action because it came later than the conduct in the first action. Here, however, the Plaintiffs could have raised the County’s failure to reverse penalties, which occurred as early as June 2012, as this was several months before judgment was entered in the first case. Furthermore, the district court did not enter judgment in the first case until three days after the challenged permit denial, and the court actually held a hearing in that case two days after the denial. Accordingly, the court upheld the district court’s holding that the Plaintiffs’ federal law claims were barred by res judicata. It further held the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claims.

Fratus v County of Contra Costa, 2018 WL 3082009 (9th Cir. CA 6/22/2018)

This post was authored by Matthew Loeser, Esq.

Plaintiff Peter Sauers appealed an order of the United States District Court for the Eastern District of Pennsylvania dismissing his Amended Complaint against Lower Southampton Township. In his Amended Complaint, Sauers challenged a zoning ordinance and claimed that he “will suffer a severe diminution in value and quiet enjoyment of his home should the subject rezoning/spot zoning result in the proposed subject development with the use of his small residential street.” He also alleged that a public hearing was not held in connection with the property at issue. The District Court held that Sauers had failed to state a claim for relief.

As to Sauers’ due process claims, the District Court ruled that Sauers did not state a cognizable procedural due process claim because public records provided by the Township established that it gave notice of its proposed zoning ordinance in a local newspaper and held public hearings. On appeal, Sauers asserted that the District Court erred in addressing whether the Township gave notice of the zoning ordinance because he had claimed that his rights were violated by the Township’s later decision to grant zoning variances to property owners without public notice. Here, however, Sauers’ Amended Complaint failed to mention zoning variances. Accordingly, the court found the Amended Complaint did not contain sufficient factual matter to state a claim. As Sauers already had an opportunity to amend his complaint, the court held that further amendment would have been futile.

Sauers next contended that the District Court erred in dismissing his civil rights claim. While Sauers did not argue that he stated a retaliation claim, he contended that his § 1983 action should not have been dismissed because he alleged that his rights under the Fifth and Fourteenth Amendments had been abridged. The court determined that Sauers’ Fourteenth Amendment claims were brought in other counts, and District Court considered his Fifth Amendment Takings Clause claim separately.

Finally, Sauers argued that the District Court erred in dismissing his Takings Clause claim. Specifically, Sauers contended that the Township’s rezoning of neighboring property and authorization of development lowered the value of his property and constitutes a “taking,” and that his property’s value was lowered without the payment of just compensation. Despite this, the court held that Sauers failed to allege this claim in his Amended Complaint, which made only a passing reference to a takings claim and contained few factual allegations. Accordingly, the court affirmed the judgment of the District Court.

Sauers v Lower Southampton Township, 722 Fed. App. 255 (3rd Cir. 1/9/2018)

This post was authored by Matthew Loeser, Esq.

Anne Arundel County, Maryland imposed road and school impact fees according to County districts beginning in 1987. These fees were paid usually by land developers and builders. Those who paid impact fees, like the Dabbs Class in this case, could become eligible, under certain circumstances, for refunds of those fees. These refunds were contingent upon the County’s failure to utilize or encumber within a specified time the collected fees for present or future eligible capital improvements, such as projects for the “expansion of the capacity of public schools, roads, and public safety facilities and not for replacement, maintenance, or operations.” The Dabbs Class’ claims were a demand for refunds of an unspecified amount of impact fees collected by the County between fiscal years (FY) 1997–2003.

The Dabbs Class first contended that the intermediate appellate court erred in concluding that the rough proportionality test/rational nexus test had no application to the present case. This test set forth that the County must “demonstrate that its expenditure of impact fees was attributable reasonably to new development and each such expenditure reasonably benefitted ‘new development’ and/or individual ‘against whom the fee was charged.’” The Dabbs Class noted that under Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599 (2013), taxes and user fees were not takings subject to the rough proportionality test/rational nexus test of Nollan and Dolan. The court found that unlike Koontz, the Ordinance here did not direct a property owner to make a conditional monetary payment to obtain approval of an application for a permit of any particular kind, and did not impose the condition on a particularized or discretionary basis. Here, the County’s Development Impact Fee Ordinance was imposed broadly on all properties, within defined geographical districts, that may be proposed for development.

The Dabbs Class next contended that the County counted improperly impact fees encumbered during the 1997–2003 FYs, and could remedy that error now through an unlawful retrospective application of Bill No. 27–07, in violation of their vested rights to obtain impact fee refunds. The court found that Bill No. 27–07 codified the County’s pre-existing – although unwritten – administrative procedures for counting impact fee encumbrances and did not constitute a change County policy. Accordingly, the court held that Bill No. 27–07 did not interfere with any vested rights of the Dabbs Class.

Lastly, the court found that the effective date of the repeal of the refund provision of § 17–11–210 occurred well before any impact fees collected through 2003 became ripe for a refund claim. Here, before paying any potential impact fee refunds, the County had to determine if refunds were due from the FY of relevant collection. Until such time, the court held that no eligible owner had vested rights in the refunds. Thus, the Dabbs Class’ claims for refunds of impact fees collected through FY 2003 was not ripe until 29 August 2009—after the effective date of the repeal of the refund provision in § 17–11–210. Accordingly, the judgment of the Court of Special Appeals was affirmed.

Dabbs v Anne Arundel County, 183 A.3d 798 (MD 4/10/2018)

This post was authored by Matthew Loeser,  Esq.

This case arose from an inverse-condemnation suit brought by several property owners, against the City of Galveston, Texas. In an interlocutory appeal, the court reviewed the trial court’s denial of the City’s initial plea to the jurisdiction, and reversed in part the trial court’s order and dismissed the Property Owners’ takings claims with regard to the City’s denial of a Specific Use Permit (SUP) for the subject property. The court also affirmed in part with regard to the Property Owners’ takings claims based on the City’s revocation of the property’s grandfathered, non-conforming zoning status. On remand, the trial court heard the City’s second plea to the jurisdiction, which asserted that the trial court lacked subject-matter jurisdiction because the Property Owners failed to exhaust their administrative remedies regarding the City’s revocation of the property’s non-conforming status. The trial court granted the City’s second plea.

Here, the record reflected that the City presented evidence that the Property Owners could have filed an administrative appeal to the ZBA pursuant to the zoning standards and chapter 211 within a reasonable time after the City informed Ben-Amram, one of the Property Owners, that the property was in violation of section 29-111(a)(4) and had lost its non-conforming status. The City presented evidence that the Property Owners failed to appeal this decision to the ZBA. Specifically, since the Property Owners did not appeal the loss of the property’s “grandfather” status to the ZBA, the court found that they failed to exhaust their administrative remedies, and the trial court did not have subject-matter jurisdiction over their takings claims.

Next, the Property Owners contended that the trial court erred in granting the City’s plea to the jurisdiction based on exhaustion because they raised a fact issue that the doctrines of equitable estoppel and business compulsion applied to their claims. Specifically, Property Owners argued the City should be estopped from insisting on exhaustion because the City did not inform them of the option to appeal the revocation decision to the ZBA and instead only informed them of the option to apply for a SUP on the property. The court found, however, that this was not a case where City officials “affirmatively misled” the Property Owners. Here, Ben-Amram did not testify that any City official told him that he should not, or would not need to, appeal the loss of the property’s non-conforming status to the ZBA or that the requirement to exhaust that decision through such an administrative appeal was waived. Furthermore, the Property Owners failed to show any evidence that the City received any direct benefit in connection with its decision to revoke the property’s non-conforming status. As such, the court held that the Property Owners failed to present an exceptional case in which estoppel was required.

Lastly, Property Owners requested the court reconsider its prior holding “based upon errors in the prior opinion and subsequent events which confirm the futility of any further appeals or applications” by the Property Owners. However, since the court found the Property Owners were merely rearguing their prior arguments using the same prior evidence, it concluded there was no reason to revisit its prior holding that the City was entitled to dismissal on the Property Owners’ takings claims based on the City’s denial of the SUP application.

Murphy v City of Galveston, 2018 WL 2701983 (TX App. 6/5/2018)

This post was authored by Matthew Loeser, Esq.

Golden Sands Dairy, LLC owned, or was under contract to purchase, approximated 6,388 acres in and around the Town of Saratoga on which it sought to operate a farm. After Golden Sands filed its building permit application, Saratoga enacted its zoning ordinance to prohibit agricultural uses such as those proposed by Golden Sands. Under its proposed modification of the Building Permit Rule, Golden Sands would have a vested right to use all of the Property for agricultural purposes. Saratoga contended that Golden Sands’ building permit was limited to vesting its right to build the seven structures identified in the building permit. The Wood County Circuit Court held that the Building Permit Rule extended to all land identified in the building permit application, and consequently granted Golden Sands’ motion for summary judgment. The Court of Appeals reversed, holding that the Building Permit Rule applied only to building structures, and not to use of land.

 

At the outset, the court noted that Wisconsin was among the minority of United States jurisdictions that adhered to the Building Permit Rule: a brightline rule vesting the right to use property consistent with current zoning at the time a building permit application that strictly conforms to all applicable zoning regulations is filed. Patricia E. Salkin, American Law of Zoning § 32:3, at 32-13—32-14 (2017). Here, while the parties agreed that Golden Sands possesses a vested right to build the seven structures as described in its building permit application, the parties disputed whether the Building Permit Rule also granted Golden Sands the right to use the farmland specifically identified in the building permit application for agricultural purposes.

 

The court found that the Building Permit Rule should be applied to all land specifically identified in the building permit application. The court reasoned that the “piecemealing” advanced by the Court of Appeals and Saratoga would require extensive litigation over how much land specifically identified in the building permit application was necessary, and this would run counter to one of the primary reasons the court adhered to the Building Permit Rule: to avoiding lengthy, fact-intensive litigation. Here, the map attached to the original application provided an objective means to determine the specific land Golden Sands intended to use in order to build structures as well as to cultivate seed, fertilize, harvest, and otherwise maintain the land it will use for agricultural purposes. Since the map provided an objective means to determine the contours of the Property and was attached to a building permit application that strictly conformed to all applicable zoning regulations, the court held that Golden Sands possessed a vested right to use the Property for agricultural purposes. Accordingly, the decision of the Court of Appeals was reversed.

 

Golden Sands Dairy, LLC v Town of Saratoga, 2018 WL 2710392 (WI 6/5/2018)

This post was authored by Matthew Loeser, Esq.

In 2012, the Taney County prosecutor filed Class-A misdemeanor criminal charges against the Smiths, alleging that they had violated the Taney County Development Guidance Code by operating a “nightly rental” without acquiring the proper special use permit. The Regulation at issue made the lease of a home for a term less than 30 days different from an ordinary residential use, requiring a “Division III ‘Special Use’ permit” from the Taney County Planning Commission. The Smiths filed a two-count declaratory judgment action challenging the validity of the Code and the Amendment. The trial court granted the County’s motion for summary judgment, and the Smiths appealed.

On appeal, the court held the County’s motion for summary judgment did not establish a prima facie case for a defending party because it ignored the pleaded bases for relief in the two counts of the Smiths’ petition. In the County’s opposition, the court found there was a complete absence of any uncontroverted material facts showing that the County: satisfied the requirements for adopting a master plan, such as holding public hearings and providing sufficient public notice; complied with § 51.120 by keeping an accurate record of the Commission’s orders, rules and proceedings; or kept minutes, as required by § 610.015 and § 64.875, showing each commissioner’s “yea” or “nay” votes and whether there was a favorable vote of two-thirds of all Commission members.

The County argued that evidentiary presumption in favor of its Ordinance meant the mere exhibition of the Code and Amendment was sufficient to defeat all pleaded theories of recovery in the Smiths’ petition. Here, however, a review of the Code and Amendment shed no light whatsoever on whether proper statutory procedures were followed in the enactment of either of them. Accordingly, the trial court’s grant of summary judgment to the County was reversed and remanded.

Smith v Taney County, 2018 WL 2753055 (MO App. 6/18/2018)

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