Posted by: Patricia Salkin | June 19, 2021

TX Supreme Court Says Historic Preservation is Not Zoning

This post was authored by Edward J. Sullivan, Esq.

              Powell v. City of Houston, __ SW 3d__ (No. 19-0689, Tex., 2021) was a challenge by declaratory judgment against Defendants regulations in support of historic preservation that Plaintiffs alleged violated a 1993 City charter provision that prohibited zoning without an affirmative popular vote in a binding referendum, as well as a state statute. The 1995 Historic Preservation Ordinance was adopted without a referendum and allowed the City to establish historic districts in which property owners must seek approval from the Archeological and Historical Commission for development by way of a Certificate of Appropriateness.  If the Certificate were denied, the owner could wait 90 days and then undertake development through a waiver. In 2010, the City ended the waiver process and refused to remove a historic designation to the Heights East District, at which point Plaintiffs filed the instant case. The trial court denied relief and Plaintiffs appealed, alleging the charter violation and a state statute that required notice and other provisions applicable to local zoning ordinances. The Texas Court of Appeals upheld the trial court decision and Plaintiffs sought review.

              The Court of Appeals held that, because the ordinance did not regulate in support of community planning, but instead focused upon certain properties and certain neighborhoods (about 1% of the city), there was no violation.

The Supreme Court determined the construction of the ordinance was a question of law, which it reviewed de novo, presuming the ordinance to be valid and overturned only on a clear abuse of discretion basis as being unreasonable and arbitrary with the Plaintiff bearing a heavy burden. All parties agreed that historic preservation was a valid police power end, though some amici disagreed. The Court refused to consider such an issue not presented by a party and moved onto the charter and statutory issues, noting that Texas law specifically allows regulations in areas of historic significance.

              As to the charter issue, the Supreme Court found the common characteristics of zoning, i.e., geographic districting and comprehensiveness, were lacking and by its ordinary, common meaning, zoning was not present. Among authority for this view was a line of cases involving regulation if specific uses through zoning-like regulations such as height and distance rules, including those applicable to wrecking yards and adult uses, which did not constitute “zoning,” citing 2 Rathkopf,  THE LAW OF ZONING & PLANNING § 1.41 (4th ed.) that “[z]oning is therefore a tool used to implement a city’s broader vision of itself, and anchoring a zoning scheme within a broader plan prevents it from being used to advance narrower interests ad hoc.” The regulations were thus not zoning under this definition. They do not authorize or prohibit specific uses and site and development regulations that focus on exterior appearances of individual structures and prohibitions on allowing those structures to fall into disrepair do not constitute “zoning.” The Court concluded:

In sum, the Ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance. For these reasons, the Ordinance is not zoning as that concept is ordinarily understood. We therefore hold that the Ordinance was not enacted in violation of the City Charter.

The Court noted that Plaintiffs’ assertions concerning zoning based on geographic areas, swept too broadly and, if correct, would invalidate flood plain and platting regulations, airport buffer and other regulations based on distance, and urban renewal districts.

              As to the allegations of state law, the Court found that notice and procedural requirements apply to zoning and other regulations, including the subject ordinance, they are not, ipso facto, zoning regulations. Moreover, because Houston is a home rule city, it asserted it may adopt the regulations under its charter. The Court found the statute applied, but also that its provisions were met. The ordinance at issue was, under the statute, a “zoning ordinance,” a term that included many non-zoning regulations, to which the Court applied its terms. But the statute required the regulations to be adopted “in accordance with a comprehensive plan,” which requirement was met by its potential applicability anywhere in the city. Moreover, the requirement that regulations must be uniform for each class or kind of building in a district does not apply when the City imposes different design requirements, depending on the structure or area under its delegation of power. The City’s Archeological and Historical Commission served as a “zoning commission” under the statute and makes studies and recommendations. The Court concluded:

              The Ordinance is therefore a city-wide, comprehensive plan to regulate the alteration, construction, and razing of buildings in historic areas. * * *  Because the Legislature considers historic-preservation regulations to be zoning regulations under section 211.003(b) of the Local Government Code, we hold the Ordinance is a zoning regulation adopted in accordance with a comprehensive plan under section 211.004(a).

(footnote omitted)

The challenged ordinance thus survived both the charter and statutory challenges and

the decision of the trial court and Texas Court of Appeals was upheld.

              Justice Bland authored a concurring opinion, joined by three other justices, finding that, although the regulations come “perilously close” to zoning, they do not cross the line as they do not have uniform provisions, nor geographical reach of traditional zoning. However, the concurrence disagreed with the majority’s view that historic preservation regulation can never be zoning, finding that Texas or Houston property protections can exceed national standards.

              Moreover, the concurrence found “disingenuous” the notion that the regulations dealt only with exterior appearances, because it required approval of any development. It was thus saved by its application in a very small area of the city and did not impose standardized, uniform regulations, and was thus not “zoning” as commonly understood, even though under the Texas statutes, it was lumped in with other property regulations as “zoning” under the Local Government Code for purposes of providing limitation on those regulations by requiring a “comprehensive plan,” a zoning commission, and other restrictions. The concurrence concluded:

                             The Court sweeps too widely in stating that restrictions on the appearance and location of buildings do not restrict “uses of land.” The government effectively may restrict nearly any activity by restricting the structure necessary to house it—its size, density, set-back, and architectural requirements. Regulating the owner’s ability to develop the land limits the types of uses to which that land can be put. The Court’s understanding of land use is at odds with the common law and strays from the task at hand of ascertaining the intent of Houston voters who chose to limit zoning in 1993. As the Court acknowledges, “site regulations” are a feature “common to zoning ordinances.” We thus should conclude that the voters considered centrally planned “site regulations” as a restriction they sought to limit when they rejected centrally planned zoning.

(footnotes omitted)

              It is perhaps easier to agree with the Court that the regulations were not “zoning” under

the City’s interpretation of its own charter, but application of the “comprehensive plan,”

“uniformity,” and “zoning commission” requirements continue nearly a century-old tradition of

“saving” zoning by judicial interpretive contortions. It would be far better for the legislature to

revise and clarify planning and zoning enabling legislation.

 Powell v. City of Houston, __ SW 3d__ (No. 19-0689, Tex., 2021)

This post was authored by Olena Botshteyn, Esq.

Sand Land owns and operates a sand and gravel mine in the Town of Southampton. In 2014, Sand Land applied to NYSDEC for a modification permit, seeking to expand its mining operations both vertically and horizontally. DEC denied the permit, and Sand Land challenged the denial in court. In 2018, the court ruled that the Mined Land Reclamation Law (“Law”) prohibited DEC from processing mining permits for mines located in the area with population over one million people that consume water from a sole source aquifer, and that the Town of Southampton had a local law in place, prohibiting mining activities. In February 2019, DEC and Sand Land entered into a settlement agreement and DEC agreed to renew Sand Land’s permit including the 40-foot vertical expansion of the mine.

In April 2019, the Town of Southampton commenced an action to annul the settlement agreement and the renewed permit, citing the Law and stating that DEC could not issue the said permit. In September 2020, Supreme Court dismissed the petition finding that the Law only applies to initial applications, not a modification application, as in the case at hand, which proposes only mining deeper within the existing footprint. The Town appealed.

On appeal, the court concluded that DEC acted in violation of the said Law, when it issued the permit, and reversed. The court first determined that the Law does not supersede Town’s zoning laws, therefore, the Town’s local law, prohibiting mining activities, would prohibit a new mine in the area, but the Sand Land’s mine is considered a legal prior nonconforming use, and therefore, would be allowed to continue operating. The court then referred to the provision of the Law, stating “No agency of this state shall consider an application for a permit to mine … within counties with a population of one million or more which draw their primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Respondents argued that this provision applies only to new permits or permits seeking substantial modifications, and the 40-foot vertical expansion is not substantial. The court disagreed, stating that based on the plain language of the statute DEC was not authorized to issue the said permit, as the applicant’s mine falls within the area described in the Law. The court thus reversed the judgment of Supreme Court.

Judge Pritzker dissented, concluding in his opinion that the stated above provision of the Law is applicable only to newly applied permits. He also stated that the part of the provision “if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” being applied here, means that although the Town generally prohibits mining uses in the area, Sand Land’s mine is not prohibited as a legal prior nonconforming use “within the area proposed to be mined”. Since prior nonconforming uses may be expanded through exploitation of reserves, which is exactly what was proposed here, Judge Pritzker stated that in his opinion, judgment of Supreme Court should be affirmed.

Town of Southampton v NYSDEC, 2021 WL 2148413 (NYAD 3 Dept. 5/27/2021)

Posted by: Patricia Salkin | May 29, 2021

NY Announces Legacy City Access Program for Housing

Below are excerpts from the press release:

On May 27, 2021 NY Governor Andrew M. Cuomo announced the new $25 million Legacy Cities initiative, a targeted effort to eradicate vacant properties in concentrated neighborhoods across Upstate New York and transform blighted structures into newly renovated, move-in ready homes. The renovated homes will help expand affordable homeownership opportunities for low- and moderate-income residents, specifically first-time buyers and households of color.  

Under the new initiative, New York State Homes and Community Renewal will allocate up to $25 million in state subsidies through an application process open to land banks that are active in upstate cities and are working in partnership with small, local developers. The program will also leverage millions of dollars in private construction financing. Initially, the program will target projects that are located in an upstate community served by a New York State Land Bank in several regions, including the Capital Region, Central New York, Finger Lakes, Mid-Hudson, Mohawk Valley, North Country, Southern Tier, and Western New York. 

The program is a partnership between HCR and the Community Preservation Corporation, a non-for-profit community development financial institution that focuses on the preservation and creation of affordable and multifamily workforce housing across New York. CPC will provide funding for the program through its ACCESS initiative which was launched in 2020 to provide capital and pre-development support to developers and real estate entrepreneurs of color, and which targets high-quality housing projects in underserved communities.

Selected land banks will transfer assemblages of up to 10 single-family properties to local developers, with preference going to developers that are minority- and women-owned businesses. CPC will provide construction financing and each project will be eligible to receive up to $75,000 per unit in HCR subsidy, with the potential for $95,000 per unit if specific energy efficiency improvements are included in the project scope. Once completed, each property will be resold to first-time homebuyers, with priority given to households of color and to families who earn less than 80 percent of area median income. 

Applicants will also be required to work with community-based housing counseling agencies to connect residents to HCR’s “Give Us Credit” program–a statewide initiative that uses alternative credit analysis to increase homeownership for applicants who have been underserved in the homeownership market, particularly applicants of color. HCR will offer these potential homebuyers down payment assistance to cover acquisition and closing costs. 

Program applications will be accepted on a rolling basis and the application window will remain open until the program funds have been committed.

For more information see: Legacy City Access Program | Homes and Community Renewal (

The circuit court did not err in determining that a foundation established to advocate for the preservation of a locality’s historic buildings, districts, and neighborhoods lacked standing to pursue the claims asserted in this case – an appeal to the circuit court from approval by a City Council authorizing renovation of an historic property. Provisions of the local zoning ordinance addressing appeals to the circuit court provide that appeal from a decision of the City Council may be pursued only by an “aggrieved” petitioner and use of that term incorporated its well-established meaning. In the present case, the foundation’s petition did not meet the requirements of the two-part test articulated in governing case law: the allegations failed to establish that the foundation suffered any particularized harm that differed from that suffered by the public in general. The foundation’s interest in the preservation of historic buildings does not give it standing to challenge the City Council’s decision in this case, and the circuit court did not err when it determined that this foundation lacked standing to pursue the claims asserted in this case. Accordingly, the judgment of the circuit court is affirmed.

Historic Alexandria Foundation v. City of Alexandria, 2021 WL 2149459 (VA 5/27/2021).

The circuit court did not err in dismissing challenges to certain amendments to a local zoning ordinance and imposition of a transient occupancy tax. The county board in this case correctly interpreted the original definition of “dwelling” in the applicable ordinance, and its actions in amending the ordinance were not unreasonable, arbitrary, or capricious. Thus, the board was not required to present evidence because the inherent presumption of reasonableness remained intact, and the circuit court did not err in dismissing claims challenging short-term occupancy amendments. Since the original definition did not permit by-right short-term lodging, there is no basis for the argument that the amended definition permits anything more than short-term lodging subject to permitting and other restrictions. Accordingly, the trial court did not err in dismissing the claims related to the short-term lodging amendments. While the plaintiffs’ properties are clearly distinguishable from hotels, motels, boarding houses, and travel campgrounds in many respects, those distinctions are irrelevant in determining whether Code § 58.1-3819(A) allows a locality to levy a transient occupancy tax on those properties and, accordingly, the trial court did not err in dismissing the plaintiffs’ challenge to the occupancy tax amendment. The judgment of the circuit court dismissing the plaintiffs’ claims is affirmed.

Norton v. Board of Supervisors of Fairfax County, 2021 WL 2149384 (VA 5/27/2021)

The plaintiff, the City of Woonsocket, appealed from a partial final judgment of the Superior Court in favor of the defendants, RISE Prep Mayoral Academy (RISE) and Brad Ward and Carl J. Johnson, in their capacities as city officials, that denied and dismissed the city’s request for declaratory judgment, injunctive relief, and judicial aid in enforcement of the city zoning ordinance.  On appeal, the city contended that the trial justice erred because she misconstrued the zoning ordinance, ignored provisions of the city’s 2012 Comprehensive Plan, and applied the wrong standard of review, giving deference to the zoning official’s ruling.

First, the Supreme Court concluded that the trial justice appropriately found that the city’s zoning ordinance was ambiguous because it failed to specifically address the proper classification for RISE’s operation, and two of the classifications provided in Section 4 of the zoning ordinance were amenable to RISE’s operation.  Accordingly, the Court determined that it was the trial justice’s responsibility, and the Court’s function, to adopt the interpretation of the zoning ordinance that would best carry out its evident purpose.

In doing so, the Supreme Court concluded that, as a public charter school, RISE’s operation is considered a municipal use under the city’s zoning ordinance because, pursuant to the Charter Public School Act of Rhode Island, G.L. 1956 chapter 77 of title 16, “a charter school shall be deemed to be a public school[.]”  The Court noted that the city, in its 2012 Comprehensive Plan, characterized all public schools as “Municipal Facilities” and that the city’s zoning official credibly testified that, in issuing the zoning certificate to RISE, he concluded that “a public school is a municipal use,” and “a use that’s being utilized by a municipality would * * * overturn * * * any other use to be considered.” 

The Court also determined that the trial justice did not accord blind deference to the zoning official’s determination that RISE’s operation is a municipal use allowed by right in a C-2 zone in the city, but merely assigned weight to his conclusions based on his credible testimony and conducted a thorough analysis in which she reviewed the relevant statute, opinions of the Court, the city’s zoning ordinance, and its Comprehensive Plan.  Accordingly, the Court found no error with the trial justice’s decision and concluded that RISE is a public school and its operation is a municipal use, which is permitted in a C-2 zone under the applicable zoning ordinance.  Thus, the Supreme Court affirmed the judgment of the Superior Court.

City of Woonsocket v. RISE Prep Mayoral Academy et al, 2021 WL 2131755 (5/26/2021)

This post was authored by Olena Botshteyn, Esq.

In 2017, Rose purchased a 1.17-acre parcel of land in Atlanta (“City”). The zoning regulations require a 60-foot front setback on the property. There is also a 100-year floodplain and several sewer easements and sewer lines, which make building on the large part of the land impossible. Rose applied for a variance from the setback requirement, but the City denied the application. Rose then commenced a legal action, asserting a claim for inverse condemnation and stating that the City’s setback requirements have deprived it of all economic use of the property. The City moved for summary judgment, which the trial court granted, having concluded that the setback regulations themselves did not provide Rose a basis for a claim, rather the land was undevelopable because of the natural flood. Rose then filed an appeal with this court.

On appeal, the court affirmed the decision of the trial court. Rose asserted that the 60-foot setback makes it impossible for him to build on his property and that the City deliberately imposed such setback requirements to keep the property undeveloped for a public purpose. The court concluded that both these claims fail. When analyzing whether a regulatory taking claim occurred, the court looks at a parcel as a whole. The setback restriction only prevented Rose from building on a portion of the property that is within the 60-foot setback. It is not the setback that prevents him from building on the remaining part of the property, but the 100-year floodplain and sewer easements. The setback requirement is therefore not, by itself, the reason why the property cannot be used to its economic benefit. The court further stated that the claim that the City denied Rose a variance so that it could use the property for a public purpose does not survive summary judgment, as the trial court upheld the denial of Rose’s variance request. The court thus affirmed.

D. Rose, Inc. v City of Atlanta, 2021 WL 2010139 (GA App. 5/20/2021)

This post was authored by Olena Botshteyn, Esq.

In 2014, the Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) took effect. The Act recognizes the benefits of using cannabis for medical reasons and regulates medical cannabis cultivation centers (facilities). The Department of Agriculture (“DOA”) is the authority registering and overseeing such centers. On July 25, 2014, the DOA adopted the Administrative Rules for effective enforcement of the Act.

Apart from other, the Act provides that cultivation centers “may not be located within 2,500 feet of an area zoned for residential use.” DOA in the Administrative Rules further define area zoned for residential use as an “area zoned exclusively for residential use.” Only one cultivation center may be placed in each of the 22 Illinois State Police (ISP) districts and a company proposing such a project is defined based on the number of points.

In September 2014, Curative, alongside other companies submitted an application to DOA to operate a cultivation center in the City of Aurora. Concurrently, Curative began obtaining a special use permit for the center and in November the permit was granted. In April 2015, the city zoning administrator sent a letter to the DOA’s general counsel, explaining that the proposed facility was not within 2500 feet of any area zoned exclusively for residential use, because the residential districts allowed other than residential uses with special use permit.

In October 2015, DOA granted Curative the cultivation center permit. One of Curative’s competitors, Medponics, which finished fifth based on the points, challenged the DOA’s decision, asserting that Curative’s proposed cultivation center violated the Act because it was located within 2500 feet of the R-1 and R-5 districts in Aurora, both of which Medponics alleged were zoned exclusively for residential use. The circuit court set aside the DOA’s decision, concluding that the City of Aurora defined the R-1 and R-5 districts as “zoned exclusively for residential purposes,” and the court of appeals reversed. Medponics then appealed to the Supreme Court.

On appeal, the court affirmed the decision of the court of appeals and concluded that the DOA’s position was not clearly erroneous, arbitrary, or unreasonable, when it decided that R-1 and R-5 districts in Aurora were not exclusively residential, and therefore Curative could locate its project within 2500 of these districts. Medponics argued that residential area and district are synonymous, and while the City Zoning Ordinance does not define “residential district,” it defines “residential area” as “[a] zoning lot or portion of a zoning lot designed or used exclusively for residential purposes.” The court disagreed, stating that while a residential area may consist of only one parcel pursuant to its definition, a residential district may not, and thus these are distinct.

The court further referred to the Administrative Rules to conclude that it was not the DOA’s intention to prohibit placement of cultivation centers within 2500 feet of any residential district. The Rules define that “Area zoned for residential use means an area zoned exclusively for residential use”; provided that in municipalities with a population over 2 million people, ‘an area zoned for residential use’ means an area zoned as a residential district or a residential planned development.” The court concluded that if the DOA had intended the location requirement to be violated every time a proposed cultivation center was within 2500 feet of an area zoned as a residential district, it would not have included this clarification with regard to cities with population over 2 million people.

The court then turned to the City Zoning Ordinance. Section entitled “Use Categories” of the Ordinance provides that certain nonresidential uses are allowed in R-1 and R-5 districts subject to a special use permit and certain do not require permits at all. The court thus concluded that these districts are not exclusively residential, and the DOA properly awarded the cultivation center permit to Curative.

Medponics Illinois v Department of Agriculture, 2021 IL 125443 (IL 5/20/2021)

The New York City Office of Administrative Trials and Hearings (OATH) determined that the petitioner violated Zoning Resolution § 32–63 by displaying two advertising signs in a district wheresuch signs are prohibited. The appellate court found that the determination was supported by substantial evidence in the record and that the Petitioner failed to establish that the display of the two signs was a legal nonconforming use that had existed at the time of the enactment of the relevant provisions and continued thereafter, uninterrupted except for a period of up to two years as required by the NYC Zoning Reolution. Further, the Court found that the 1970s permit relied upon by petitioner was for a single sign, not two, and that OATH rationally concluded that petitioner failed to meet its burden of establishing continuous use, in light of the significant gap in time for which petitioner presented no evidence that the two advertising signs were displayed continuously.

Ryan Lee Properties, LLC v. City of New York, 2021 WL 1970254 (NYAD 1 Dept. 5/18.2021)

Posted by: Patricia Salkin | May 17, 2021

Washigton State Adopts Significant Environmental Justice Law

On May 17, the State of Washington joined a growing number of states with signficant Environmental Justice (EJ) statutes. The law, the Healthy Environment for All (HEAL) Act (E2SSB 5141) requires, among other things, covered state agencies to: Adopt environmental justice principles into their strategic planning and budgeting and funding decisions; develop and implement a community engagement plan with a focus on empowering overburdened communities and vulnerable populations, and on considering them in agency decision-making; consult with Indian tribes on decisions affecting tribal rights and lands and when carrying out certain agency environmental justice obligations.; and develop metrics and reports for tracking progress toward environmental justice goals. Also, no later than July 1, 2023, covered state agencies must develop a process for conducting environmental justice assessments for “significant agency actions.”

For more details see:

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