The SEQR Findings Statement for high-volume hydraulic fracturing (HVHF) was issued today, June 29, 2015. This concludes DEC’s comprehensive, seven-year review and officially prohibits HVHF in New York. See,

Editor’s note: Specials thanks to Edward J. Sullivan for contributing this post.

California Building Industry Assn. v City of San Jose, S212072 (June 15, 2015) involved Plaintiff trade association’s challenge to Defendant City’s ordinance to require developments containing 20 or more units to make 15% of those units available for low or moderate income purchase. The ordinance was a product of several state legislative efforts beginning in 1975 and, although not mandated by law, was in effect in over 170 California cities. The law was passed to increase the number of affordable housing units and integrate various socioeconomic groups into the same development. Plaintiff brought a facial takings claim, though not a typical regulatory takings claim, alleging the ordinance violated the doctrine of “unconstitutional conditions,” by which a claimant seeks a public benefit, but is forced to give up or refrain from exercising a constitutional right (in this case the right to just compensation) in exchange for that benefit.

In particular, Plaintiff alleged the ordinance was not supported by a sufficient evidentiary basis to show a reasonable relationship between adverse public impacts or a need for additional subsidized housing caused by, or reasonably attributed to, developments of 20 units or more as required by the takings clauses of the state and federal constitutions. The trial court agreed with Plaintiff, but the District Court of Appeal reversed, concluding the trial court erred in finding that a developer was required to dedicate property to the public and that the state and federal constitutions did not limit conditions only to those that are reasonably related to adverse impacts that a development may impose on a city’s affordable housing problem. Instead such non-exaction conditions must only bear a real and substantial relationship to a legitimate public interest. The California Supreme Court granted review.

Since 1965, California cities have been required to adopt a General (comprehensive) Plan and make adequate provision for affordable housing. In 1980 and subsequently, the California Legislature has added to the requirement of, and provision for, such housing, including the authorization of inclusionary zoning regulations, such as the one now before the court. In 2010, in order to meet that need, Defendant enacted the challenged ordinance, which found a relationship between market rate development and affordable housing, as provision of market rate housing raised land costs and thus made affordable housing more difficult. Such housing also required more City employees to serve it and made it more difficult for such service employees to live in non-substandard housing in the City, and resulted in longer commutes and forced residents to pay a larger share of their incomes for housing. After setting forth its purposes, the ordinance set out a number of options for developments subject to its provisions to meet the need for affordable housing, including the 15% requirement, or to raise that requirement to 20% if such units are constructed offsite, payment of an “in lieu” fee, dedicating land with an equivalent value to the applicable “in lieu” fee, or acquiring and rehabilitating existing substandard housing. The Ordinance also contained incentives for compliance, such as density bonuses, off-street parking reductions, and City subsidies and assistance. Moreover, the ordinance provided for covenants and other safeguards to assure the price on resale was affordable. Finally, the Ordinance was not effective until after the end of the recent recession and provided for a waiver to the extent any provision operated as an unconstitutional taking.

The Court first turned to whether the Inclusionary Zoning requirements were “exactions” that implicated the “unconstitutional conditions” doctrine of Nollan, Dolan and Koontz. No taking challenge exists to a condition that is not also an exaction. Nollan and Dolan involved exactions of real property, while Koontz involved public works or money as a substitute for real property dedications.  The challenged ordinance did not exact property, public works or money and was thus not an exaction. Outside the exactions context, public agencies have broad authority under their legislative or “police” power to regulate land, so long as the restriction bears a real and substantial relationship to the public welfare. A regulation is presumed constitutional and is reviewed in a deferential way under the “fairly debatable” test.

The Court concluded that because there was no exaction, there was no unconstitutional condition — the 15% requirement does not bind a landowner to give up a property interest, or to provide public works or money in lieu of a property interest to the public. It simply places a use restriction on the land by limiting the return on that portion of the land, much like rent control or zoning regulations themselves. So long as the requirement does not constitute a physical taking or deprive the owner of all viable economic use, it does not violate the takings clause. If the test relates to Due Process, the increase of affordable housing to comply with state law, and locating such housing in economically diverse areas are constitutionally permissible objectives that may be achieved in multiple ways. The City could use price controls or a requirement to provide accessory housing units in every development. These would not violate the takings clause. Moreover, this case involves a facial attack and the ordinance uses a waiver mechanism to avoid an unconstitutional situation, which would require an application and a subsequent as-applied attack. On its face, however, the ordinance is not unconstitutional. Moreover, because Plaintiff did not bring a regulatory taking claim under Penn Central, the Court did not apply that test and concluded:

“As we have explained, an ordinance that places nonconfiscatory price controls on the sale of residential units and does not amount to a regulatory taking would not constitute a taking of property without just compensation even if the price controls were applied to a property owner who had not sought a land use permit. Accordingly, the inclusionary housing ordinance‘s imposition of such price controls as a condition of a development permit does not constitute the imposition of an exaction for purposes of the unconstitutional conditions doctrine under the takings clause.”

The Court then reviewed Plaintiff’s contention that the recent decision of the California Court of Appeals in Sterling Park L. P. V. City of Palo Alto, 57 Cal.App4th 1193, 1207 (2013) should be applied.  In Sterling Park, the validity of an exaction was challenged and the issue was the correct statute of limitations. However that case involved an exaction – an obligation to sell certain property to that city at a below-market rate, while the instant case did not involve an exaction. Moreover, the challenged ordinance in this case involved a number of incentives for the provision of affordable housing which must be considered in the individual case as an as-applied challenge. Further the Court noted that Koontz found that, so long as one of the alternative means of satisfying a condition were constitutional, the Fifth Amendment was not violated. In any event, the doctrine of unconstitutional conditions was not violated in this case.

The Court then considered Plaintiff’s contention that the challenged ordinance was a taking under a portion of its decision in San Remo Hotel v. City of San Francisco, 27 Cal4th 643 (2002), first noting once more that there was no exaction in this case, but then turned to the passage that appeared to say that a condition is valid solely if it alleviates adverse impacts caused by or attributable to a development. The Court pointed out that the context of the passage responded to a hypothetical ordinance in which a city might use a mitigation fee on an ad hoc basis to “sell” development approval, distinguishing that instance from “legislatively mandated formulaic mitigation fees” which would be subject to a public and political process. The passage read: (quote from pp. 46-47)

“Nor are Plaintiffs correct that, without Nollan/Dolan/Ehrlich scrutiny, legislatively imposed development mitigation fees are subject to no means-ends review. As a matter of both statutory and constitutional law, such fees must bear a reasonable relationship, in both intended use and amount, to the deleterious public impact of the development. * * * Plaintiff’s hypothetical city could only ‘put [its] zoning up for sale’ in the manner imagined if the ‘prices’ charged, and the intended use of the proceeds, bore a reasonable relationship to the impacts of the various development intensity levels on the public resources and interests.  While the relationship between means and ends need not be so close or so thoroughly established for legislatively imposed fees as for ad hoc fees subject to Ehrlich, the arbitrary and extortionate use of purported mitigation fees, even where legislatively mandated, will not pass constitutional muster.” (citations omitted) San Remo Hotel, supra, 27 Cal.4th at p. 671.  (Emphasis in original)

Plaintiff read this passage to say that the challenged ordinance could be valid only if the conditions “bear a reasonable relationship, in both intended use and amount, to the deleterious public impact of the development.”  The Court responded that San Remo did not apply to permit conditions that placed use limitations on property rather than solely to conditions requiring an applicant to pay an unrelated fee to secure a permit and, read in context, is consistent with Koontz.  Moreover that passage related only to mitigation fees to limit impacts and not to price controls or other land use regulations that serve a permissible broader constitutional purpose, unrelated to the impacts of the proposed development. There is no ends-means analysis to use restrictions imposed by zoning regulations — rather those regulations are permissible to serve broader public welfare considerations.

The Court cited the California Court of Appeals decision in Ehrlich v. City of Culver City, 12 Cal4th 854 (1995), in which a developer challenged a recreation facility replacement fee successfully under Nollan and Dolan and also a public art fee, which required donation of a work of art or payment of a fee at 1% of the valuation of a building, which was not subject to that analysis, but rather whether the requirement were reasonably related to a constitutionally legitimate purpose of increasing public access to art, which is also a common test for land use controls. So long as price controls are not confiscatory or constitute a regulatory taking, they should be evaluated under the reasonable relation test. Moreover, a developer is not obliged to pay a fee if other non-monetary options may be taken. The 15% requirement is not related to any individualized assessment of housing impacts of a given development, but rather under the reasonable relation test.

Lastly the Court addressed Plaintiff’s contention that Sterling Park supports a Nollan-Dolan analysis. But that case only dealt with the applicable statute of limitations– either 90 days under the Subdivision Map Act or 180 days from a notice of required payment under the Mitigation Fee Act –to an Inclusionary Zoning Fee. The court chose the 180-day limitation applied, but did not reach the merits of the case and left open the grounds for challenging inclusionary zoning requirements. The Court thus upheld the decision of the Court of Appeals, observing:

“As noted at the outset of this opinion, for many decades California statutes and judicial decisions have recognized the critical need for more affordable housing in this state. Over the years, a variety of means have been advanced and undertaken to address this challenging need. We emphasize that the legal question before our court in this case is not the wisdom or efficacy of the particular tool or method that the City of San Jose has adopted, but simply whether, as the Court of Appeal held, the San Jose ordinance is subject to the ordinary standard of judicial review to which legislative land use regulations have traditionally been subjected.” California Homebuilders Association at 64.

There were two concurring opinions. Justice Werdegar observed that Plaintiff limited itself to an unconstitutional conditions challenge, so it was not necessary to deal with the reasonable relation test and that the intervening Supreme Court decision in Lingle v. Chevron USA, Inc., 544 US 528, 540-45 (2005) had adopted a more deferential standard, which was not applicable under the takings clause in any event, but rather was tested under the due process clause. Justice Chin also concurred, but on much narrower grounds that the ordinance does not require subsidized housing. While the ordinance does require that the same quality of exterior design, comparable square footage and bedroom count, it does allow for other (and less expensive) attributes. In this facial challenge, it is not clear that a developer could not turn a profit from these affordable housing units. If a developer were required to subsidize these units by selling them below cost, Justice Chin would apply the Fifth Amendment.

This unanimous decision upholding the City’s inclusionary zoning regulations in this facial unconstitutional conditions challenge may not be the last word and it is probable that the Plaintiff will seek certiorari to get a definitive answer to the correct constitutional test to be applied.

California Building Industry Assn. v City of San Jose, S 212072 (6-15-15)

Editor’s note: Special thanks to Edward J. Sullivan of Portland, Oregon for this contribution.

​Reed v. Town of Gilbert ​ , No 13­502, June 18, 2015, involved one of 25 exemptions to  respondent’s general requirement that a sign permit be secured to display a sign. Those  exemptions are based on the content of the sign. The category at issue was a “temporary  directional sign relating to a qualified event,” which may be sponsored by a religious, charitable  or other non­profit organization. Signs in this category are limited in size (6 square feet), the  number which may be placed on property (4), and time (12 hours before and one hour after the  event).  Those signs are treated less favorably than ideological signs ( which may be 20 square  feet, allowed in any zone and unlimited in time) and political signs (which may be 16 to 32  square feet, depending on the status of the property, and allowed 60 days before and 15 days  following an election),

Reed, a church pastor, wished to advertise the times and location of his congregation’s  service, which were not not always in the same place, since there was no fixed church site. The  signs did not always contain a date and were in place outside the time limits of the regulations.  After accommodation failed, Reed filed a First Amendment claim in federal court. After two  rounds in the trial court and Ninth Circuit, relief was denied as the categories were deemed  content­ neutral so that no content ­based regulation occurred. The Supreme Court granted  certiorari.

Justice Thomas, writing for the court, said that content ­based regulations of expression were  presumptively unconstitutional and would only be upheld if shown to serve a compelling public  interest and narrowly tailored to achieve the same. He added that “content­ based” dealt with  either the topic discussed or idea the message expressed. Even content ­neutral regulations  would be subject to strict scrutiny if they cannot be justified without reference to the content of  the speech or shown to be adopted due to disagreement with the message conveyed.

The Court found the regulations content ­based as they depended on the message i.e. a  “qualifying event,” an ideological matter, an election) which triggered different regulations for  each category, thus triggering the strict scrutiny analysis. The Court found the justifications  accepted by the Ninth Circuit “unpersuasive.”

One justification was that the regulations were not motivated by disagreement with the  message; however the Court responded that motivation is irrelevant if the regulations were not  content­neutral, even if the regulation were facially neutral. Such a regulation may be  content­based even if it does not discriminate based on subject matter or viewpoints. In this  case the regulations single out specific subject matter (information on “qualified events), even if  it takes no position on those events, and allows signs relating to that event to be treated  differently than ideological or political signs ­­ a paradigmatic example of content­ based  discrimination.”  Another justification was that the regulations were content ­neutral as to  speaker and event.  The Court said the signs were based on their content, rather than the  identity of the speaker. Had the church or its pastor expressed an ideological message or
supported a candidate, the regulations would have been different. Thus they are content ­based.  There was no adequate justification for these regulations under a strict scrutiny analysis.  Respondent offered traffic safety and aesthetics, but the Court found the regulations “hopelessly  under-inclusive” as they did not deal with other signs causing similar effects, as they allied an  unlimited (in time) posting of ideological signs and a multitude of political signs at election time.

The Court asserted that the public had ample content ­neutral means to deal with aesthetics  and traffic safety ­­ by dimensional and physical limitations, for example and suggesting the  world would not end if more signs resulted from litigation. The Court also stated that some traffic  safety signs may survive strict scrutiny; however that issue was not before it and the differing  regulations on ideological, political and qualifying event signs were content­ based and did not  survive strict scrutiny. The Ninth Circuit decision was thus reversed and remanded.

Justice Alito, joined by Justices Kennedy and Sotomayor, concurred and further described  how signs may be constitutionally regulated, including limits on size, location, lighting,  attachment to other structures, regulation of moving messages, placement on public or private  property, differences based on zoning districts, onsite or off­site status, number of signs per  roadway mile, one­time signs or signs placed by government action following the Court’s  decision in ​Pleasant Grove City v. Summum , 555 U.S. 460, 467­69 (2009). This latter category  appears to exempt government signs on public property from content­neutrality requirements.

Justice Breyer concurred in the judgment, sounding caution in the formulaic use of strict  scrutiny in every content­based sign code distinction. While that analysts is helpful when a  public forum or viewpoint discrimination is involved, government programs almost always  involve content­discrimination, such as securities regulation, drug or energy ­conservation  labeling, reporting of child abuse or comic able diseases and the like, many of which do not  involve commercial matters. While he rejects watering down the strict scrutiny test, Justice  Breyer suggests it be a “rule of thumb” in most cases outside the public forum or viewpoint  discrimination areas to examine whether the regulation is disproportionate to First Amendment  interests in light of regulatory objectives. Such an approach would allow regulation of speech by  voters where courts “should hesitate to substitute judicial judgment for that of administrators.”  In  any event, Justice Breyer joined Justice Kagan’s concurrence in the Court’s judgment.

Justice Kagan’s, joined by Justices Breyer and Ginsburg, concurred in the judgment, pointing  out that numerous local sign codes exempt or permit various sign categories ­­ “pedestrian  crossing” or “George Washington Slept Here” being examples, which codes are now seen as  content­based and subject to strict scrutiny. She asked rhetorically whether a town had a  compelling state interest to say “George Washington Slept Here?”  Justice Kagan’s found the  traditional justifications for strict scrutiny may not apply in such low-­level situations, as they do  not interfere with the marketplace of ideas or impose viewpoint or subject matter limitations on  speech. If those concerns are not present and the risk is inconsequential, strict scrutiny is  unwarranted and sweeps too broadly than the actual harm to free speech interests. Justice  Kagan suggested the court exercise common sense, leaving intact laws that do not violate
these interests. She noted that in ​Members of the City Council v. Vincent ​ , 466 U.S. 789 (1984)  and more recently in ​City of Ladue v. Gilleo,  ​ 512 U.S. 43 (1994), the Court passed over such  distinctions and in ​City of Renton v. Playtime Theatres ​ , 475 U.S. 41, 46 (1986), the Court used  intermediate scrutiny to deal with distinctions between adult and other films shown by a movie  house.  Justice Kagan suggested using ​Ladue ​  here, under which the Gilbert code would. To  pass strict or intermediate scrutiny (“or even the laugh test”) as there was no coherent  justification for the distinctions made. There was no reason to apply strict scrutiny here and the  Court risks becoming the “Supreme Board of Sign Review” without any necessary First  Amendment justification.

Justice Kagan’s concerns are certainly justified. In the light of this decision, what is the  justification for distinguishing between commercial and non­commercial signs or between onsite  and offsite signs?  One must read the content of the sign to make such regulatory decisions if  regulation is to be done at all. The principal opinion suggests that traffic signs “may” survive  strict scrutiny, but what if the multitude of other public or private signs that are not traffic­related?  Perhaps ​Summum ​  will allow the public to use its proprietary and regulatory powers to deal with  some signs, but that response is insufficient to deal with the host of sign issues facing local  governments today.

​Reed v. Gilbert ​ , No. 13­502, June 18, 2015.

Despite the objection of petitioner’s regarding a shed permit for a neighbor, the appellate court noted that the neighbors had constructive notice as early as 2009 that the shed owners had been issued a permit to replace the shed in their backyard. Village Law sec. 7-712a[5][b] requires that appeals of this nature be commenced within 60 days of receiving constructive notice, yet the petitioners’ waiting until 2012.

Second, with respect to allegations that the Board violated the Open Meetings Law, the court noted that even if true,”not every breach of the [Open Meetings Law] automatically triggers its enforcement sanctions.”

Peehl v Village of Cold Spring, 2015 WL 3605098 (NYAD 2 Dept. 6/10/2015)

The opinion can be accessed at:

Petitioner applied for, and was denied, an area variance to construct a proposed parking facility for 28 spaces on an unimproved lot it owns that sits adjacent to a 211-unit building it owns with 160 on-site parking spaced for cooperative owners. The Zoning Board of Appeals denied the requested variance on the grounds that, “the requested variance would cause an undesirable change in the character of the surrounding area and cause negative aesthetic and visual impact on nearby properties.” The lower court upheld the denial and the appellate court reversed. The Court noted that while Gen. City L. sec. 81-b sets forth the balancing test for the granting of an area variance and while the board has broad discretion in considering an application for a variance, conclusory findings are not sufficient. While the board here concluded that the requested variance was substantial, the court found that its determination was otherwise conclusory and lacked an objective factual basis. Further the court noted that the only thing in the record were subjective objections and general community opposition. The Court noted, “In light of the current condition of the property, the legality of using the lot as a small parking lot, and the fact that the lot is fenced so as to block ground-level water views, the ZBA failed to the explain how the expansion of the number of spaces in the lot would change the character of the neighborhood.” Finding the decision irrational and arbitrary, the court remanded the matter to the zoning board with instructions to issue the requested area variance.

Marina’s Edge Owners Corp. v City of New Rochelle Zoning Board of Appeals, 2015 WL 3605111 (NYAD 2 Dept. 6/10/2015)

The opinion can be accessed at:

Note: The Post Below is from the RLUIPA Defense Blog – :

We’ve said it before and we’ll say it again, religious land use disputes often take a long time to resolve. World Outreach Conference Center v. City of Chicago, Nos. 13-3669, 13-3728 (7th Cir. 2015) is no exception to the rule. The case, which Judge Posner observed “will soon have lasted as long as the Trojan War” and referred to as “messy and protracted litigation,” was remanded back to the district court on June 1, 2015. The Seventh Circuit found that the lower court erred in granting the City’s partial motion for summary judgment after finding that many of the burdens imposed on the plaintiff were not “substantial.”  For a recitation of the case facts leading up to the most recent oral argument, as told by the plaintiff’s attorney Noel W. Sterett of Mauck & Baker, refer to our Guest Commentary: Seventh Circuit Hears Oral Argument Again in World Outreach Conference Center v. City of Chicago.

In its 2009 decision, the Seventh Circuit found that the World Outreach Conference Center (World Outreach) may have been substantially burdened by the City of Chicago’s refusal to grant, for two years, a license to World Outreach to operate a community center and rent 168 single-room occupancy apartments (SROs) on a temporary basis to needy persons. World Outreach wished to operate out of a building formerly operated by the YMCA to conduct substantially similar activities as had been conducted by the YMCA. For years, the YMCA operated under the then-current zoning as a legal nonconforming use without any request or order by the City that it obtain a special use permit (SUP). Since nonconforming use status runs with the land, the Court concluded that World Outreach was entitled to the same status. However, when World Outreach applied for the required licenses (which were granted to the YMCA as a matter of course) it was denied and told to apply for a SUP.

In 2005, the City filed suit against World Outreach in state court, but the case was voluntarily dismissed. Both the District Court and the Seventh Circuit recognized the 2005 action as frivolous, and the June 1, 2015 decision affirms the district court’s grant of costs and fees associated with defending the action:

It’s true that to show that the suit violated RLUIPA, World Outreach had to show that the attorneys’ fees that it had incurred constituted a “substantial burden” on its religious activities. It’s hard to imagine a vaguer criterion for a violation of religious rights. But a frivolous suit aimed at preventing a religious organization from using its only facility—a suit that must have distracted the leadership of the organization, that imposed substantial attorneys’ fees on the organization, and that seems to have been part of a concerted effort to prevent it from using its sole facility to serve the religious objectives of the organization (to provide, as a religious duty, facilities for religious activities and observances and living facilities for homeless and other needy people)—cannot be thought to have imposed a merely in-substantial burden on the organization.

The Seventh Circuit concluded that the district court erred in finding, at the summary judgment stage, that World Outreach was not substantially burdened by the City’s actions other than filing the frivolous lawsuit. The evidence presented in opposition to the City’s motion was “too well balanced” to support summary judgment in the City’s favor: the court noted the two-year delay in granting World Outreach’s licenses, the “animosity” of the City alderman, and the difference in treatment between World Outreach and the YMCA.

Finally, for “guidance on remand,” the court considered World Outreach’s damage claim based on the fact that the federal government could have housed up to 168 Hurricane Katrina survivors at World Outreach, paying up to $750 a month per room. Although the court found the evidence presented on the point was “weak,” it also concluded that proof of such damages was an issue for trial.

Judge Cudahy provided a concurring opinion – notable at least for its brevity:

“Unfortunately; and I think the opinion must be stamped with a large ‘MAYBE.’”

In a case by a landowner alleging that a neighbor, who also served as a member of the local planning commission, is liable for defamation and tortious interference with contract for sending numerous email communications relating to plaintiff’s application for a special use permit to operate a dog kennel on her property, the circuit court did not err in sustaining a demurrer to several claims based on communications that did not contain a defamatory statement, as well as a demurrer regarding a defamation claim by a corporate plaintiff. With regard to an email charging that the individual plaintiff “is lying and manipulating facts,” the basis for the writer’s rationale was fully disclosed, and the two persons to which it was sent would have perceived the accusation as pure opinion of the writer based upon her subjective understanding of the underlying scenario and not upon an implied factual predicate of which they were unaware. Thus, in the absence of a claim that the underlying facts stated in that email were themselves false and defamatory, the statement was purely the defendant’s subjective analysis. It is protected by the First Amendment and not actionable. Dismissal of the corporate plaintiff’s claim for tortious interference with contractual relations is affirmed for lack of any allegation that the contract at issue was terminated, or that it became more expensive or burdensome for that plaintiff. The judgment is affirmed.

Schaecher v Bouffault, 2015 WL 35065252 (VA. 6/4/2015)

The opinion can be accessed at:

This case raised the issue of whether Act 250 required consideration of alternative siting in every case in which a party objects to a proposed land-use project on aesthetic grounds, pursuant to 10 V.S.A. § 6086(a)(8), without regard to the presence of competent evidence supporting alternative siting as a reasonable mitigating measure.

A neighboring resident of Goddard College in Plainfield Vermont, challenged the Superior Court, Environmental Division’s grant of an Act 250 permit to Goddard College to build a central woodchip boiler heating system on its campus replacing old individual oil-fired systems (the project included a 2,469–square–foot building, distribution pipeline, woodchip-storage area, and access roadway) arguing that the court failed to properly consider measures to mitigate the aesthetic impact of the project by siting it elsewhere on the college property. That trial court found that while there would be adverse aesthetic impacts from the project, these impacts would not be unduly adverse.

On appeal the Neighbor argued that the court erred in refusing to consider relocation of the project within the project tract, and that its analysis concerning mitigation of the project’s adverse aesthetic impacts was not supported by adequate factual findings that were supported by the record.

The Supreme Court affirmed stating that the Environmental Division determines the credibility of witnesses and weighs the persuasive effect of evidence, and that they would not overturn unless it was clearly erroneous. Act 250 requires the district environmental commission, before granting a permit, to find that the proposed project meets ten statutory criteria. Criterion 8 requires that the project “not have an undue adverse effect on the scenic or natural beauty of the area” or “aesthetics.” Although the applicant has the burden of proof with respect to many of the Act 250 criteria, the burden of proof for Criterion 8 is “on any party opposing the applicant.”

The Neighbor argued that the Environmental Division “refused to” allow presentation of evidence on relocation of the project elsewhere on the campus as a generally available mitigating step. The court stated there was no evidentiary ruling by the trial court denying the neighbor the ability to present evidence of alternative project sites in support of the claim that reasonable, generally available mitigating steps were not taken. The Neighbor next argued that the Environmental Division erred substantively in its Criterion 8 determination that the aesthetic impact of the project would not be unduly adverse. Neighbor asserted that the court’s analysis “lacks sufficient findings, or conclusions derived from evidence in the record, to support the contention that reasonably available mitigation occurred.” Neighbor complained that “missing from the lower court’s analysis” was an indication that the college or the court “thoroughly reviewed” mitigating steps, “including relocation within the project tract.” The court rejected this claim stating that the trial court’s analysis was well-grounded in substantial evidence derived from the record, and it was not arbitrary, capricious, or clearly erroneous. The court’s lack of discussion regarding a relocation of the project to some other site on the college’s campus was not grounds for reversal. It need not decide the question raised by the court during the hearing below: whether alternative siting within a project tract may be considered as a reasonable mitigating measure. Assuming without deciding that the court can consider proposed alternative siting as a reasonable mitigating measure in the undue-impact analysis, the neighbor failed to produce any competent evidence to support an alternative siting argument.

It is the objecting party’s job to adduce substantial evidence showing an unduly adverse effect on aesthetics or scenic views. That burden includes the duty to demonstrate the availability of reasonable mitigating steps to improve the project’s harmony with its surroundings if the failure to take reasonable mitigating steps is a basis for an undue-adverse-impact challenge. Here, neighbor put forth no competent evidence on the issue of alternative siting. Because the neighbor did not present substantial evidence on the issue of siting, they did not decide whether, to what extent, and under what circumstances shifting the location of a proposed project within the same tract may be a mitigating step under Criterion 8. 

In re Goddard Coll. Conditional Use, 111 A3d 1285 (Vt 11/21/2014)

The opinion can be accessed at:

In this case, Cleveland Mobile Home Community has been operating in Rankin County since the 1950s. It includes spaces for 138 mobile homes and seventeen campers or recreational vehicles, and the spaces are rented to tenants. When the City of Richland incorporated in 1975, the mobile-home park became part of the City and was zoned “I–1, Light Industrial Zoning.” The City’s ordinances prohibited industrial property being used for residential purposes. Thus, use of the property as a mobile-home park was a nonconforming use, which under city ordinance, was allowed “to continue until they are removed” but the “survival” of the nonconformity is not encouraged. The Rankin County Circuit Court upheld the City’s decision to enforce the ordinance, and Cleveland MHC appealed. The Court of Appeals reversed, and the City petitioned the Court for certiorari, which was granted.

At the outset, the court determined that while the individual structures on the property were nonconformities in themselves, they make up parts of the whole. Therefore, it held that the Court of Appeals correctly determined that the nonconforming use related to the mobile-home park as a whole, not to individual lots. The City’s resolution would deprive Cleveland MHC of its constitutional right to enjoy its property, as the resolution effectively would destroy the mobile-home park-as well as Cleveland MHC’s investment-by attrition. Furthermore, since 1975, the City has allowed mobile homes to be moved on and off the property, and the City has not interpreted or enforced the ordinance on a lot-by-lot basis. The decision to do so now seemed to be without reason and implied a disregard for the surrounding facts and settled controlling principles. Accordingly, the court affirmed the holding of the Court of Appeals that the zoning decision was arbitrary, capricious, discriminatory, and beyond the legal authority of the City Board.

Cleveland MHC, LLC v City of Richland, 2015 WL 2250376 (MS 5/14/2015)

The opinion can be accessed at:

In February 2000, Stephen Jackson purchased a recently built home in the Village. At that time, the property located directly across the street was zoned for “mixed residential” use, and Jackson believed that a townhome development with 16 units would be built there. However, in March 2001, the Board of Trustees for the Village approved a conditional-use permit for a retail center on the property across the street. Jackson attended public meetings and hired counsel to oppose the commercial development, but claims the public meetings were “simply intended to provide the illusion of public process” to conceal lucrative insider dealing between Village officials and the developers. Jackson later learned that about nine months after he purchased his property, the developers had received “preliminary approval” from the Village to build the retail center. Jackson then brought this action, challenging the Village’s decisions made over the 14–year period, against the Village and more than 20 other defendants. The district court dismissed the federal claims on the pleadings and declined to exercise supplemental jurisdiction over the state-law claims.

In his due process claim, Jackson asserted that the Village disregarded local procedures and engaged in delay tactics. However, because Jackson did not appeal the Board’s decisions to the zoning board of appeals, and then to the state courts on administrative review, or pursue other remedies that Illinois has provided for property owners challenging excessive zoning regulation, the court upheld the district court’s finding that Jackson’s claim of a violation of procedural due process was unripe and subject to dismissal. Moreover, the court found Jackson pleaded himself out of court because his complaint reveals an obvious rational basis for the Village’s actions, since his complaint acknowledged that the developers and Village officials were negotiating plans to build a commercial center even before he bought his house.

Finally the court addressed Jackson’s First Amendment claim, which alleged that several Village officials were represented by the law firm that employs the Village attorney, and this “conflict of interest,” led to political corruption “such that the Plaintiff never stood a chance of receiving legitimate consideration” when attempting to petition the Village. This argument also failed, however, because he did not allege that state actors actually interfered with his access to the courts to state a claim for relief under the First Amendment. Accordingly, the dismissal of Jackson’s claims was affirmed.

Jackson v Village of Western Springs, 2015 WL 2262703 (7th Cir. unprec. 5/15/2015)

The opinion can be accessed at:

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