Posted by: Patricia Salkin | February 16, 2019

NYC Makes Zoning Resolution Available On-Line

The following is from CityLand:

The City’s zoning laws are now instantly accessible to New Yorkers. On February 6, 2019, Department of City Planning Director Marisa Lago announced the release of the City’s digital Zoning Resolution online platform. The online platform will serve as a green replacement for the 1,570-page physical copy of the Resolution, which will no longer be printed to save money, increase government transparency, and fight climate change. It will also be a more interactive replacement for the static PDFs currently on the City Planning website.

Editor’s Note: This summary was first published in the USDOJ’s February 2019 issue of Religious Freedom in Focus, available here:

On February 6, 2019, the U.S. Court of Appeals for the Fourth Circuit reversed a federal trial court and held that a small African Christian church’s suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) may proceed.  The United States filed an amicus brief in the Court of Appeals in the case, Jesus Christ is the Answer Ministries, Inc. v. Baltimore County, Maryland last July. Principal Deputy Assistant Attorney General John M. Gore represented the United States at oral arguments in October, contending that the church had adequately alleged that the county discriminated against it and had imposed a substantial burden on its religious exercise without proper justification.

The case involves the efforts of Jesus Christ is the Answer Ministries, a small congregation with many members who are African immigrants, to build a church on a 1.2-acre lot in Baltimore County.  The property’s zoning allows churches as of right, subject to setback and buffer requirements which a church must meet “to the extent possible.”  The church initially submitted a plan that fell far short of meeting the setback and buffer requirements, but submitted a second plan which largely met them.  The church plan was vigorously opposed by neighbors, and the county denied the church’s second application.

The church filed suit under RLUIPA, which protects places of worship and other religious uses of property from discriminatory or unjustifiably burdensome applications of land-use regulations.  The suit alleged that neighbors opposing the plan had made racially and ethnically charged statements about the worship style of the congregation including references to “dancing and hollering” as if they were “home back in Africa.”  The suit also alleged that the church had made reasonable proposals and modifications to its plan and that their religious exercise was “substantially burdened” in violation of RLUIPA by the denial.  A federal district court ruled that the claims were insufficient to make out a RLUIPA claim and dismissed the complaint.

The court of appeals agreed with the United States that both of the church’s claims should be permitted to proceed.

On the discrimination claim, the court agreed with the United States that while the statements of neighbors at a public hearing are not necessarily attributable to the government decision maker, these allegations, coupled with the allegation that the county was in fact influenced by these neighbors, is sufficient to state a claim of discrimination under RLUIPA.  The court also noted that while RLUIPA prohibits only religious discrimination and not ethnic or racial discrimination, the statements of the neighbors disparaging the congregants included both racial and religious elements, and the court would not try to disaggregate these on a motion to dismiss.

On the substantial burden claim, the court agreed with the United States that a court should evaluate both the actual ways the zoning action imposes a burden on the church (e.g., here completely foreclosing the property’s use as a church), and the degree to which the local government is causing that burden.  The United States argued that the plaintiffs had a reasonable expectation when they bought the property that they could use it for a church, that they had demonstrated its willingness to make modifications to address county concerns, and that they were treated arbitrarily by the county.

The court agreed, finding that the complete foreclosure of the use of the property resulting from the denial, the reasonable expectations of the church, and its willingness to modify its original plans, stated a claim of a substantial burden on religious exercise under RLUIPA.

In 2018, the Department launched the Place to Worship Initiative to increase awareness of RLUIPA’s requirements among local officials and communities and to increase enforcement. More information is available on the Place to Worship Initiative homepage and the website of the DOJ Civil Rights Division’s Housing and Civil Enforcement Section, which enforces RLUIPA.

Editor’s note: This summary was originally published in the USDOJ’s February 2019 Religious Freedom in Focus newsletter available here:

On December 12, 2018, the U.S. District Court for the District of New Jersey ruled that a Muslim congregation alleging that it was improperly denied septic permits and a certificate of occupancy to build a mosque could bring a claim under RLUIPA.  The court in the case, Garden State Islamic Center v. City of Vineland, agreed with the United States’ position in a Statement of Interest submitted in September 2017 that the city’s actions qualified as “land use regulation” under RLUIPA.

RLUIPA prohibits a government from imposing or implementing  a “land use regulation” in a manner that discriminates against religious uses, or which imposes substantial burdens on religious land uses without a compelling government justification pursued through the least restrictive means.  RLUIPA specifies that land use regulation means “zoning or landmarking” laws.

The Garden State Islamic Center received city approval to build a mosque in 2012.  When the Center sought to build the second phase of the mosque in 2016, the city denied it the necessary septic permits, claiming that the size of the septic system would now require state environmental review, and denied the mosque a final certificate of occupancy.  The mosque brought suit under RLUIPA, claiming that the denials were discriminatory and imposed a substantial burden on its religious exercise.

The city asked the court to dismiss the case, saying that the septic permits are not “zoning laws” and thus denying such permits cannot violate RLUIPA.  The United States contended in its Statement of Interest that the city’s actions triggered RLUIPA both because the septic regulations are incorporated into the city zoning code, and the septic permit denials constituted the means by which the city made its decision to deny the certificate of occupancy, the denial of which is plainly a zoning action.

The court agreed. The court noted that the mosque was alleging that “the City’s tactics associated with the septic system process” evidenced an effort to deny the approval of the overall project.  The court concluded that “because the sewage regulation at issue is incorporated by reference into the City’s Land Use Ordinance, it qualifies as a zoning law.  To hold otherwise would put form over function.”

In a similar case brought by the United States involving a proposed mosque in Culpeper, Virginia, a federal court in Virginia held in March 2017 that the sewage restrictions applied in that case constituted a land use regulation under RLUIPA because these regulations were cited by reference in the zoning code and were used in that case to thwart the mosque’s zoning application.

The petitioner lives in a neighborhood zoned for one-family and two family residences. Most of the houses in the neighborhood, including the petitioner’s house, were built before the enactment of the zoning law in 1920 and are located on lots that do not comply with the current zoning laws. The petitioner applied for five area variances to convert her one-family home into a two-family home. After a hearing, the Board of Zoning denied the application. The petitioner appealed and the trial court granted the petition, annulled the determination, and remitted the matter to the Board for reconsideration of the petitioner’s application for area variances. The Board appealed.

Although the Board engaged in the required balancing test, the Court agreed with the trial court that the Board failed to meaningfully consider the relevant statutory factors. The Court noted, “While the proposed variances were clearly substantial and the alleged difficulty was self-created, the Board’s failure to cite to particular evidence as to whether granting the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community requires reconsideration of the application, weighing all of these factors.” Accordingly, the Court affirmed annulling the Board’s determination, and remitting the matter to the Board for reconsideration.

Mengisopolous v. Board of Zoning Appeals of City of Glen Cove, 2019 WL 288111 (NYAD 2 Dept. 1/23/2019).

In a challenge to the determination of the zoning board of appeals that a gasoline fueling station was a permitted principal use in the district pursuant to the Town Code, the appellate court upheld the board’s interpretation finding it was neither arbitrary nor capricious and that it complied with applicable legal principles.
Hitner v. Planning Board of the Town of Patterson, 2019 WL 288135 (NYAD 2 Dept. 1/23/2019)

The petitioners/plaintiffs, owners of residential real property in the Village challenged five local laws amending the Zoning Code of the Village. Three of the challenged amendments impact building on lots of 40,000 square feet or greater. Local Law No. 13–2015 reduced the maximum allowable gross floor area for one- and two-family detached dwellings on such lots. Local Law No. 14–2015 reduced the maximum permitted coverage for all structures on such lots. Local Law No. 15–2015 reduced the maximum allowable gross floor area for all accessory buildings on all such lots. The other two amendments impacted all lots in the Village—Local Law 16–2015 added to the Village Zoning Code a definition of “story,” which previously was not defined, and Local Law 17–2015 modified the definition of “cellar” so as to restrict the permissible parameters of a cellar.
Petitioners sought to annul the laws claiming, among other things, that (1) the amendments are not in accordance with the Village’s comprehensive plan; and (2) the Board of Trustees improperly relied on the recommendation of the Village Planning and Zoning Committee (hereinafter the Planning and Zoning Committee) in adopting the subject amendments. The trial court denied the petition, dismissed the proceeding/action, and declared that the challenged local laws are a legal, constitutional, and valid exercise of the police and zoning powers of the village, and this appeal ensued.
The appellate court agreed with the court below that the challenged amendments are consistent with the comprehensive plan of the Village and that the petitioners failed to establish that any of the challenged amendments are inconsistent with the plan. In fact, the Court noted that the plan included: a statement of the importance for the Village to ensure that new development or redevelopment of residential properties was compatible with the character of the existing neighborhood in which it occurs; that the Village accomplished this goal by limiting the gross floor area for all homes in relation to lot size and the total coverage of the residential lot; and a recommendation further limiting the maximum gross floor area and coverage for residential lots, including accessory structures, so that new residential development would be more responsive and compatible with the scale of existing development. Therefore, the Court concluded that the subject amendments were entirely consistent with the comprehensive plan.
The court further disagreed with the petitioners’ contention that the Board of Trustees improperly relied on the advice of the Planning and Zoning Committee and thereby denied the petitioners the notice and opportunity to comment required under Village Law §§ 7–706 and 7–708, and under the open meetings provisions of the Public Officers Law. The Court noted that the record supports the determination below that “the Planning and Zoning Committee was advisory in nature, did not perform governmental functions, and, therefore, was not a public body subject to the open meetings provisions of the Public Officers Law, even though the Planning and Zoning Committee contained at least one member of the Board of Trustees.”

Bonacker Property, LLC v. Village of East Hampton Board of Trustees, 2019 WL 288160 (NYAD 2 Dept. 1/23/2019).

This post was authored by Matthew Loeser, Esq.

Standard Construction Company (SCC) applied for a conditional use permit to mine sand and gravel in DeSoto County, Mississippi. After the DeSoto County Board of Adjustments denied SCC’s application, SCC appealed the decision to the DeSoto County Board of Supervisors. When the Board of Supervisors denied SCC’s application, SCC appealed to the DeSoto County Circuit Court, which entered an order and opinion reversing the Board of Supervisors’ decision. The Board of Supervisors filed a motion for rehearing, which the circuit court denied.
In its motion to dismiss, SCC contended that the Board of Supervisors filed its notice of appeal ninety-six days after the circuit court entered its September 29, 2017 order, which would be outside of the thirty-day time frame set forth in Mississippi Rule of Appellate Procedure 4(a). The Board of Supervisors argued that section 11-51-75 stated that the circuit court acts as an appellate court when reviewing an appeal from a board of supervisors; thus, the Mississippi Rules of Appellate Procedure exclusively applied.As such, the Board of Supervisors argued that its motion for rehearing should be construed in the same manner as a Mississippi Rule of Civil Procedure 59 motion.
The court first set forth that Motions to reconsider filed under Mississippi Rule of Civil Procedure 59(a) and Mississippi Rule of Civil Procedure 59(e) must be filed within ten days after the entry of the judgment. Furthermore, it noted this ten-day requirement was absolute, and the court was not permitted to extend this time period. Here, the record reflected that the Board of Supervisors filed its motion for rehearing eleven days after the circuit court entered its judgment, and consequently failed to toll the thirty-day time period for filing a notice of appeal. Since the Board of Supervisors filed its notice of appeal on January 3, 2018, ninety-six days after the circuit court entered its September 29, 2017 order and opinion, the court held that it lacked jurisdiction as the appeal was untimely filed.
Desoto County v Standard Construction Company, 2019 WL 276038 (MS App. 1/22/2019)

This post was authored by Matthew Loeser, Esq.

This case arose from the denial of an application to amend the General Development Plan for Wakefield Valley. In 2016, the developer WV DIA Westminster, LLC filed an application to amend the Wakefield Valley GDP to permit construction of fifty-three homes on what was designated as “Parcel W” of a former golf course. In December 2016, the Mayor and Common Council of Westminster, held a public hearing on the application. In January 2017, the Council held another public hearing in which it voted to deny the application, and the president of the Council directed the staff to prepare a written decision to that effect. In February 2017, the developer filed a petition for judicial review in the Circuit Court for Carroll County. In March 2017, the Council adopted Ordinance No. 876, denying the application. and the circuit court issued an order affirming the Council’s decision. The developer then filed an appeal in the Court of Special Appeals, as well as a petition for a writ of certiorai.
On appeal, the developer argued the Council’s decision denying the Application was a quasi-judicial decision, rather than a legislative act.  Furthermore, by casting its decision as an exercise of legislative judgment, the Council applied an erroneous standard and legally erred. As such, the developer claimed, the Council could not ask the court to affirm its decision on the basis that the decision was a quasi-judicial decision supported by substantial evidence. Here, contrary to the Council’s contention, the court found the application only sought to amend the Wakefield Valley GDP with respect to Parcel W. Thus, the Council reached its decision based on an examination of Parcel W on individual grounds, and was more akin to piecemeal rezoning than comprehensive rezoning. Additionally, the court found that the Council’s consideration of the Application included all of the hallmarks of a deliberative fact-finding process: the holding of an evidentiary hearing and the receipt of factual and opinion testimony, as well as documentary evidence.


The court next determined that, in considering the Application, the Council used a deliberative and testimonial fact-finding process. Here, the specific findings required by Westminster Code § 164-188J included whether the application substantially complied with the use and density indicated by the Master Plan or sector plan and did not conflict with other specified plans and policies. The Council was further tasked with determining whether the proposed vehicular and pedestrian circulation systems were adequate and efficient, and whether the proposed development tended to prevent erosion of the soil and to preserve natural vegetation and other natural features of the site. The court found that these findings were those that a governmental body must make during a quasi-judicial decision-making process involving proposed development on a particular property. As the court found this to be a quasi-judicial decision, it was subject to judicial review to determine whether substantial evidence in the record as a whole supported the Council’s findings and conclusions and to determine whether the Council’s decision was premised upon an error of law.
The developer argued that, under the Council’s factual findings, the Application satisfied Westminster Code § 164-188J. The record reflected, however, that the Council found the Application to have failed to substantially comply with the use and density indicated by the Wakefield Valley GDP, and that it conflicted with the general plan or other applicable City plans and policies. Moreover, if the Application were to be approved, the open space would drop to 40% after the developer build the proposed single family homes, which was contrary to the intent for the area as demonstrated through the amendments to the Wakefield Valley GDP. Accordingly, the court affirmed the circuit court’s judgement, and held that there was substantial evidence in the record as a whole to support the Council’s findings and conclusions, and that the Council’s decision was not premised upon an error of law.

WV DIA Westminster, LLC v. Mayor & Common Council of Westminister, 2019 WL 257972 (MD App. 1/18/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiffs David F. and Katherine W. Dietz appealed an order of the Superior Court, which upheld a decision by the zoning board of adjustment (“ZBA”) to grant to the intervenor, Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town’s zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee.
On appeal, the Dietzes first argued that the trial court erred because RSA 674:33-a required that the ZBA make written factual findings as to each element of the statute before granting equitable waivers. The court first noted that the equitable waiver statute, unlike the variance statute, contained the additional requirement that a waiver can be issued “if and only if the board makes all of the following findings.” As such, the court determined that this language only required that the ZBA make findings, not that it must set forth those findings in writing.
The Dietzes also contended that the trial court erred when it ignored the language in Paragraph I of the ordinance, which required that the “past construction or investment was made in ignorance of the facts constituting the violation.” In response, Sawyer Point argued the “ignorance of the facts” language in Paragraph I(d) should be disregarded because to give it effect would render Paragraph II’s waiver of the ignorance requirements a virtual nullity. Sawyer Point further alleged that, while it knew the 1999 Addition would be built within the setback, it did not know that building on the existing footprint would constitute a violation, since the building inspector had granted the building permit. The court held that its interpretation of Paragraph I(d) needed to be broad enough to encompass the situation in which an applicant relied on the misinterpretation of an ordinance by a municipal official in issuing a permit within that official’s scope of authority. As such, the court rejected this contention.

The Dietzes next claimed that the trial court erred in sustaining the ZBA’s decision with respect to the “public benefit to be gained” by correction of the violation. Specifically, the Dietzes argued that the ZBA failed to consider the cumulative effect of the failure to enforce the lakefront setback throughout the Town, rather than just the impact of the specific violations at issue in this case. The court found, however, that this requirement applied to the granting of a varience, and did not apply to the equitable waiver statute.
Laslty, the court found that even if we were to assume that Sawyer Point’s improvements exceeded the maximum lot coverage standards, there was nothing in RSA 674:33-a that prohibited a property owner from seeking partial relief from the Town’s zoning ordinance. Accordingly, the Dietzes’ appeal was dismissed.
Dietz v. Town of Tuftonboro, 2019 WL 275312 (NH 1/8/2019)

Petitioner owns property that contains eight buildings with one- and two-bedroom apartments leased to college students.  Petitioner sought to create additional housing on this property and applied first for 5 area variances, later withdrew 2 but continued with the 3 to increase the number of dwelling units based on the lot size, decrease the minimum living area per unit and decrease the required number of parking spaces.  The ZBA denied the variance requests and the Supreme Court upheld the decision.  The petitioner appealed.

The appellate court upheld the decision finding that the ZBA’s decision was supported by the record and had a rational basis, and that the Board properly applied the balancing test, and noted that when rendering its decision, the ZBA was “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational” (Matter of Merlotto v. Town of Patterson Zoning Bd. of Appeals, 43 A.D.3d 926, 929, 841 N.Y.S.2d 650 [2007]; see Matter of Cohen v. Town of Ramapo Bldg., Planning & Zoning Dept., 150 A.D.3d 993, 994, 54 N.Y.S.3d 650 [2017] ).  The Court noted that there were “large differences between a project as permitted under the zoning regulations and the relief requested by petitioner,” including that the minimum lot size would permit 154 units on the property, whereas petitioner sought permission for a total of 409 apartments. Also, the petitioner wanted to reduce the minimum living space per unit from 750 square feet to 474 square feet, and to reduce the number of required parking spaces from 818 to 309. Further the petitioner intended to lease to 562 residents, whereas in the apartments currently on the property petitioner leases to 222 residents. The court noted that “the record also contains information addressing the potential negative changes to the character of the neighborhood or detriment to nearby properties.” Although the property is located in a mixxed-use zone, most of the immediately-adjacent streets contain predominantly one-family residences.

The court also noted that, “rather than setting a minimum living area per person or bedroom, the Vestal Town Code sets forth a minimum living area per “family,” which is defined as, among other things, any number of related persons occupying a single dwelling unit, or up to five unrelated persons occupying a single dwelling unit (see Town of Vestal Code §§ 24–1, 24–182[c][2] ). If an area variance were granted reducing the minimum living area to 474 feet, it would be permissible – notwithstanding petitioner’s stated intention to allow only one student to rent each of its one-bedroom apartments – for an entire family…”   the petitioner also acknowledged that the difficulty is self-created.  It was possible for the petitioner to realize the benefit of increased rental units another way, despite the fact that the petitioner felt those changes would not be consistent with its marketing plan.

While there was community opposition to the requested variances, the Court found sufficient evidence in the record to conclude that the decision was not based entirely on community opposition.

Feinberg- Smith Associates, Inc. v. Town of Vestal Zoning Board of Appeals, 2018 WL 6797603 (NYAD 3 Dept 12/27/2018).

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