Defendant Manhasset–Lakeville Water District was a special district of the Town of North Hempstead, which was created for the purpose of providing and selling potable water to consumers within its boundaries. The Water District required the use of water storage tanks to provide water and maintain water pressure, including elevated water storage tanks. One of these elevated water storage tanks was located on a lot owned by the Water District in the plaintiff, Incorporated Village of Munsey Park. The current tank was not permitted as of right by the Village’s zoning code, which prohibits buildings in excess of 30 feet in height. In 2014, the Water District developed a plan to replace the current tank, which included an antennae being placed on the replacement tank to provide a means of wireless communication between Water District facilities and for dispatching the employees and volunteer firemen of the Fire District. The Nassau County Department of Health approved the proposed construction plan. The Water District also determined that the proposed construction plan was a replacement-in-kind Type II action not subject to further environmental review under the State Environmental Quality Review Act (SEQRA). The Village commenced this action for a judgment declaring that the Water District must comply with the Village Code, for a permanent injunction enjoining the Water District from commencing any demolition, construction, or alterations until the Water District complies with the Village Code, and directing the Water District to act in strict compliance with SEQRA. The Supreme Court granted the Water District’s motion for summary judgment.

On appeal, the court found that the Water District’s determination that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind”, and was therefore a Type II action under SEQRA that presumptively did not have a significant impact upon the environment and did not require the preparation and circulation of an environmental impact statement. As such, the Water District’s determination was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion. Accordingly, the court affirmed the Supreme Court’s holding that the Water District was entitled to summary judgment.

Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 2017 WL 2126350 (NYAD 2 Dept. 5/17/2017)

In 2014, the Department of Buildings of the City of New York (“DOB”) found that, pursuant to New York City Zoning Resolution (“ ZR”) § 113–11, the maximum permitted floor-to-area ratio for the portion of the subject building located in a C4–2 zoning district was governed by ZR Article II, Chapter 3, and that it was proper to refer to ZR § 34–112 in order to determine how to apply ZR Article II, Chapter 3 within a C4–2 zoning district. Following an administrative appeal, the Board of Standards and Appeals of the City of New York (“BSA”) upheld the determination of the DOB.
On appeal, the court applied the “arbitrary and capricious” standard, and found that, according proper deference to the interpretation given to ZR § 113–11 by the DOB, the BSA’s determination in upholding the determination of the DOB had a rational basis. Accordingly, the court held that the Supreme Court of New York properly denied the petition and dismissed the proceeding.

Quentin Road Development, LLC v Collins, 2017 WL 1902790 (NYAD 2 Dept. 5/10/2017)

Plaintiff Hoyne Development LLC, a real estate developer, purchased commercial property seeking to re-zoning and develop the property for residential use. Hoyne got the property re-zoned, but as a condition of obtaining building permits, the City of Chicago demanded that Hoyne comply with its Affordable Requirements Ordinance (“ARO”), a measure to increase the availability of affordable housing in Chicago. Specifically, the City required Hoyne to set aside two housing units for rent or sale to low-income residents, or pay a $200,000 fee. Hoyne complied by paying the fee, and then filed this action in state court, alleging that the ARO constituted a taking in violation of the U.S. and Illinois Constitutions, both facially and as applied. Plaintiff Home Builders Association of Greater Chicago (“HBAGC”), a real estate trade association, joined Hoyne in the facial challenge to the ordinance. The City of Chicago removed the case to federal court and moved to dismiss for failure to state a claim.
At the outset, the court noted that although the complaint alleged that the building permit was conditioned on complying with the ARO, the complaint did not contain any specific allegations that the ARO was the taking of a property interest without just compensation. Nevertheless, Plaintiffs contended that there was a per se taking because: the ARO deprives landowners of the right to fix the price at which they will sell property; the ARO “operates on” an identifiable property interest; and the ARO requires a recorded encumbrance on the property. Here, however, the court found that while landowners generally have the right to set the prices at which to sell their land, Hoyne did not have the right to develop the multifamily project at all before the up-zoning that rendered the property subject to the ARO. Additionally, the ARO did not compel Hoyne to rent its property, or impose restrictions indefinitely – only for 30 years. Lastly, the court found that the act of recording itself did not create a public property right or a public easement. Hoyne’s per se takings claims were therefore dismissed.
As to the regulatory taking claim, the court determined that the ARO was not a physical invasion of the property. The court found that it was implausible that Hoyne’s property had decreased in value substantially, and that any potential decrease could potentially be counterbalanced by other possible uses. Furthermore, Hoyne did not have a reasonable expectation of developing fourteen market-rate units because Hoyne purchased the property when it was zoned for commercial use. It was not until Hoyne requested and received the up-zoning, that it had the right to develop twelve market rate units and two affordable units. As such, the plaintiff’s regulatory takings claim was also dismissed.

Home Builders of Chicago v City of Chicago, 213 F. Supp. 3d 1019 (ND IL 9/3/2016)

Plaintiff, Enrico Mangiafico, alleged that municipal defendants, the Town of Farmington and five individuals sued in their official capacities, violated his due process rights, constituted an unconstitutional taking of his property, and inflicted severe emotional distress by: placing his residential property on the town’s blight list, issuing citations for blight violations, imposing daily fines for blight violations and recording liens on his property. On appeal, the plaintiff claimed that the trial court improperly granted the defendants’ motion to dismiss on the ground that he had failed to exhaust his administrative remedies as provided by statute and the Code of the Town of Farmington. Additionally, plaintiff argued that the court improperly granted the defendants’ motion for summary judgment on his count seeking discharge of the municipal blight liens on the ground that he could not collaterally attack the validity of the assessments underlying those liens.
Plaintiff first contended that because he raised constitutional issues, the citation appeals process provided an inadequate remedy at law and he was entitled to pursue alternative relief. The court found that although the hearing officer refused to address certain issues raised by the plaintiff, the plaintiff was entitled to a de novo hearing before the Superior Court if he had chosen to pursue it. The Superior Court could have addressed all of the plaintiff’s claims, and if it determined that the town failed to prove the alleged violations of the blight ordinance and ordered the town to vacate the fines and release the real estate liens, it would not have been necessary to address constitutional issues, such as plaintiff’s takings claim. Accordingly, the remedy provided in the citation appeal process set forth in the Town Code was not inadequate or futile, and the plaintiff was required to exhaust his administrative remedies.
The plaintiff lastly claimed that the court erroneously concluded that he could not collaterally attack the validity of the municipal blight liens because he failed to avail himself of the proper procedure to appeal from the hearing officer’s assessment determinations. Here, in defendant’s motion for summary judgment, defendants submitted an affidavit by the town manager attesting to the procedure employed in securing and recording the blight liens. The plaintiff, however, did not file a counter-affidavit challenging the contents of the town manager’s affidavit. As such, the court found in the absence of an appeal, the town’s decisions were final and not reviewable.

Mangiafico v Town of Framington, 2017WL 1907179 (CT App. 5/16/2017)

In September 2015, Applicants EQT Production Company and ET Blue Grass Clearing, LLC filed their application for conditional use approval for a proposed unconventional gas well site on the “Bickerton Well Site.” The proposed well site was approximately 126 acres and included “unconventional wells both at the vertical and horizontal laterals and be hydraulically fractured.” The Applicants owned both the surface and the oil and gas rights, and had leases for all of the horizontal laterals underground currently permitted and were working on acquiring leases for the non-permitted wells. In this case, the Borough of Jefferson Hills appeals from an order of the Court of Common Pleas of Allegheny County reversing the decision of the Borough Council of the Borough of Jefferson Hills to deny the conditional use application of Applicants to construct, operate, and maintain a natural gas production facility on an area of their property known as the Bickerton Well Site. In support of its denial of the application, Council primarily cited the Applicants’ alleged failure to satisfy Section 1003(a) of the Zoning Ordinance of the Borough of Jefferson Hills, which provides: “The use shall not endanger the public health, safety or welfare nor deteriorate the environment, as a result of being located on the property where it is proposed.”
In its decision, the court first noted that a conditional use, like a special exception, is not an exception to a municipality’s zoning ordinance, but is a use to which an applicant is entitled as a matter of right unless the municipal legislative body determines “that the use does not satisfy the specific, objective criteria in the zoning ordinance for that conditional use.” Here, once the Applicants satisfied the specific, objective criteria for the conditional use, the burden shifted to the objectors. The court therefore considered whether objectors’ testimony constituted substantial evidence of a high degree of probability that Applicants’ proposal would impose detrimental impacts exceeding those ordinarily to be expected from unconventional gas wells. While these objectors testified about serious problems at other well sites or the harms posed by drilling and operation of unconventional wells generally, their testimony did not satisfy their burden. Specifically, the objectors failed to present either lay or expert testimony pertaining to the Bickerton Well Site proposal. Accordingly, the court affirmed the decision of common pleas, which reversed the Council’s denial of the conditional use application.
EQT Production Company v Borough of Jefferson Hills, 2017 WL 2180678 (PA Commwlth 5/18/2017)


This case involved a vacant parcel at 850 Lightpost Parkway in Morgan Hill owned by River Park.   In November 2014, City amended its general plan to change the land use designation for this parcel to “Commercial” from “ML–Light Industrial.”  In April 2015, City’s city council approved Ordinance no. 2131 (O–2131), which would have changed the parcel’s zoning to “CG–General Commercial.”  This zoning would have permitted a hotel on the parcel. In May 2015, the Coalition submitted a timely referendum petition challenging O–2131. In July 2015, City “discontinued processing” the referendum and changed the parcel’s zoning to “Highway Commercial” rather than “General Commercial”, which it believed to be consistent with the general plan’s “Commercial” land use designation for the parcel. In February 2016, City changed its position and passed a resolution calling for a June 2016 special election to submit the referendum to the voters. At the same time, it authorized the filing of an action to have the referendum “nullified as legally invalid and removed from the ballot.” The City commenced this action in March 2016 seeking to remove the referendum from the June 2016 ballot. The superior court granted City’s petition, finding the City had established the “invalidity” of the referendum by showing that “the current zoning in question is inconsistent with the City’s General Plan—and therefore presumptively invalid.” The court ordered that the referendum be removed from the ballot and that O–2131 be certified “as duly adopted and effective immediately….”
Contrary to the City’s contention, the City’s ML–Light Industrial zoning for the parcel did not automatically become invalid in November 2014 because that zoning was consistent with City’s general plan prior to the general plan amendment. Instead, the court found that the City had “a reasonable time” under section 65860, subdivision (c) to amend the zoning of the parcel to make it consistent with the general plan. The court further found that section 65860 did not require City to adopt O–2131; although it preempted City from enacting a new zoning that was inconsistent with the general plan, it did not preclude City from exercising its discretion to select one of a variety of zoning districts for the parcel that would be consistent with the general plan. Since City retained this discretion, the court held that section 65860 did not preclude the electorate from exercising its referendum power to reject City’s choice of zoning district in O–2131.
Furthermore, the court noted a referendum that rejects an ordinance simply maintains the status quo. As such, it cannot violate section 65860, which prohibits the enactment of an inconsistent zoning ordinance. Here, where an ordinance attempted to resolve that inconsistency by replacing the inconsistent zoning with a consistent zoning that was just one of a number of available consistent zonings, the legislative body would be free to choose one of the other consistent zonings if the electorate rejected the legislative body’s first choice of consistent zonings. Accordingly, the superior court’s order granting City’s petition was reversed, and the superior court was directed to enter a new order denying City’s petition.
City of Morgan Hill v Bushey, 2017 WL 2334024 (CA App 5/30/2017)

AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC (collectively AllEnergy) located a site in the Town of Arcadia in Trempealeau County for a frac sand mine. The site was located in an Exclusive Agriculture 2 (EA-2) zoning district, which has the stated purpose to “preserve class I, II and III soils and additional irrigated farmland from scattered residential developments that would threaten the future of agriculture …” and “to preserve woodlands, wetlands, natural areas and the rural atmosphere of the County.” The Trempealeau County Environment & Land Use Committee’s denied AllEnergy’s application for a conditional use permit for non-metallic mineral mining. The non-metallic mineral mining in this case was the mining, processing and transporting silica sand used in hydraulic fracturing (fracking). AllEnergy sought certiorari review in the circuit court of the denial of its application for a conditional use permit; appealed the order of the circuit court to the court of appeals; and then sought review of the decision of the court of appeals.
On appeal, AllEnergy argued that Trempealeau County Environment & Land Use Committee, an appointed body without the power to legislate, exceeded its jurisdiction by denying a conditional use permit based on broad legislative concerns over the public health, safety, and welfare. The Trempealeau County Zoning Ordinance, enacted by the Trempealeau County Board of Supervisors, requires the Trempealeau County Environment & Land Use Committee to “review each conditional use permit application for compliance with all requirements applicable to that specific use and to all other relevant provisions of this Ordinance.” The ordinance specifically directed the Committee to approve conditional use permits only if it determined that “the proposed use at the proposed location will not be contrary to the public interest and will not be detrimental or injurious to the public health, public safety, or character of the surrounding area.”
Here, in deciding whether to grant AllEnergy a conditional use permit, the Trempealeau County Environment & Land Use Committee considered the criteria set forth in the ordinance. Moreover, each member of the Trempealeau County Environment & Land Use Committee who voted against granting AllEnergy’s application stated his or her reasons for doing so. The court found that because the Trempealeau County Environment & Land Use Committee considered the factors the Trempealeau County Board of Supervisors directed the Committee to consider, the Committee kept within its jurisdiction, and substantial evidence existed to support the Trempealeau County Environment & Land Use Committee’s decision to deny AllEnergy’s application for a conditional use permit.
AllEnergy Corporation and  AllEnergy Silica v Trempealeau County Environment and Land Use Committee, 2017 WL 2349200 (WI 5/31/2017)

Plaintiff-Appellant Jeff Faulkner alleged that the City of Middletown, as part of a conspiracy against him, violated his rights on two separate occasions. First, Faulkner claimed that the City’s decision to “downzone” a piece of real property that would later come to be owned by the Faulkner Family Trust amounted to a taking that required notice and compensation under both the United States Constitution and the Ohio Constitution. Next, Faulkner alleged that the City was liable to him for malicious prosecution and abuse of process under Ohio law because City employees wrongfully arrested him and charged him with landlord theft of rent. As a result, Faulkner brought nine claims against the City, seeking relief ranging from damages under 42 U.S.C. § 1983 to mandamus. The district court granted summary judgment in favor of the City on all nine claims.

The gravamen of plaintiff’s due process and equal protection claims was that the City owed the Trust a duty to provide notice and an opportunity to respond before downzoning the lot in question and to refrain from singling out the Trust’s property for disparate and discriminatory treatment. However, the record indicated that the property at issue was validly downzoned on August 20, 2013; Faulkner did not agree to purchase the land at issue on behalf of the Trust until February 27, 2014, and he did not close on the land until March 26, 2014. Because the Trust did not own the land at issue when the City duly amended the land’s zoning classification, Faulkner lacked standing to challenge that decision on the basis of procedural due process or equal protection.

Lastly, the court found the district court properly granted summary judgment to the City on Faulkner’s claims of malicious prosecution and abuse of process.  The court noted that Ohio law generally immunizes municipalities from civil liability flowing from “loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” Here, Faulkner did not make this claim against a municipal employee, but against the City. As such, the court rejected this claim, and affirmed the judgment of the district court.

Faulkner v City of Middletown, OH, 2017 WL 1857271 (6th Cir. CA 5/8/2017)


Respondents applied to Lane County for a zoning consistency determination to certify the lawfulness of an accessory use to their home. The requested accessory use was a conversion of a 2,800 square foot portion of a 5,200 square foot horse barn and riding arena on the property into rooms for use by the permanent residents of the property and their guests. Respondents referred to this area as the “sanctuary.” Respondents proposed that they and their housemates would use the accessory structure on a daily basis for personal use, and small groups of family and friends would use the sanctuary on a weekly basis. Respondents proposed to host parties of less than 40 persons, up to eight times each year; and gatherings of 40 to 80 persons three or four times a year; and to conduct larger events for more than 80 persons, such as a wedding or bar mitzvah, no more than once a year. The county planning director approved the application to certify the accessory use, and the county board of commissioners affirmed the hearings officer decisions. Petitioner obtained review by Land Use Board of Appeals (“LUBA”), and LUBA affirmed the county’s interpretation of the meaning of “accessory” uses and development in the F-2 zoning district.

On appeal, petitioner argued that LUBA erred in deferring to the county’s interpretation of “accessory” use and development because the interpretation was “contrary to Goal 4 and inconsistent with the purpose of LC 16.211 and the underlying policies which are the basis for the Lane Code.” The county interpreted LC 16.090, defining “accessory” as “incidental, appropriate and subordinate to the main use” of a structure, and taking into account the intensity of the use of the accessory structure as weighed against the intensity of the use of the residence. The county concluded that an “incidental, appropriate and subordinate” accessory use in the forestland zone would be one that was confined to use by residents of the tract and their guests, and not open to general use by the public, or commercial by nature. The court found the use was not inconsistent with the conservation of forestland to allow particular accessory uses for forestland dwellings, subject to siting standards for those uses. Additionally, the court found that the county’s interpretation of the code definition of “accessory” uses and development was not inconsistent with the text of the relevant laws. Accordingly, the county’s interpretation was plausible and entitled to deference.

Kaplowitz v Lane County, 2017 WL 2375752 (OR App. 6/1/2017 )

This case was the third appeal regarding two billboards in the Town of Collierville on land owned by Abbington Center. The billboards were constructed in December 1979, at a time when building permits and a sign permit fee were the only requirements for construction of a billboard in the Town. In June 1982, the Town passed an ordinance prohibiting the construction of any new billboards. Abbington purchased the billboards in 1993, and the Town assured Abbington that the billboards were “grandfathered in.” Shortly after this, Abbington discovered that the billboards were leased for use by a third party for fourteen years. In 2007, Abbington submitted proposed designs to the Town’s Design Review Commission for new billboards to replace the billboards in question. Abbington subsequently applied for the necessary permits, but the Town denied the permits on the basis that the billboards did not constitute a legal nonconforming use.

The BZA affirmed the Town’s stop work orders and the denial of the request for building permits. Abbington filed a petition for writ of certiorari to the chancery court, which invalidated the stop work orders and permitted Abbington to reconstruct the billboards. The Town then appealed to the Court of Appeals, but while the appeal was pending, Abbington reconstructed the billboards. The Court of Appeals then reversed the decision of the chancery court and reinstated the decision of the BZA. The BZA then had a split decision on a motion to affirm the Development Department. In November 2013, the chancery court entered a final judgment in which it dismissed the Town and Development Department’s petition for lack of standing. After the Court of Appeals found standing and remanded the issue, the trial court determined that the Board of Zoning Appeals’ decision not to affirm the removal order was arbitrary and capricious because the removal order was enforcing the Board of Zoning Appeals’ prior rulings that had been affirmed and reinstated by the Court of Appeals.

On the third appeal, Appellant did not dispute that the writ of certiorari was timely filed within the sixty-day time period provided by Tennessee Code Annotated section 27-9-102; however, the petition for writ of certiorari filed in this case did not contain an oath or verification. Here, the petition for writ of certiorari only contained the standard “respectfully submitted” signature of the attorneys representing the Town. Moreover, there was no dispute that a petition for writ of certiorari was the proper procedural vehicle to challenge the decision of the Board of Zoning Appeals. Accordingly, the court held that compliance with the technical requirements of Tennessee Code Annotated section 27-8-106 was mandatory, and the failure to comply with those requirements deprived the trial court of the subject matter jurisdiction to conduct any judicial review.

Town of Collierville v Town of Collierville Board of Zoning, 2017 WL 2365018 (TN App. 5/31/2017)

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