This post was authored by Matthew Loeser, Esq.

Larry Bagford, a planning and zoning specialist for the city of Hamilton, observed appellant operating an auto sales business. Appellant continued to operate its business despite being ordered to cease all operations and remove all vehicles for sale from the property as the city’s community development office had no record of a conditional use approval or the required certificate of zoning compliance being issued. In this case, Defendant-appellant, Marfel Motors, Inc., appealed from its conviction in the Hamilton Municipal Court for violating a zoning ordinance by operating a business without being issued a certificate of zoning compliance.

On appeal, appellant argued its conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Pursuant to Hamilton Codified Ordinances Section 1186.00, “any person, firm, or corporation who violates, disobeys, omits, neglects, or refuses to comply with, or who resists the enforcement of any of the provisions of the Zoning Ordinances and all amendments thereto, shall be guilty of an unclassified misdemeanor and shall be fined not less than $250.00 or more than five hundred dollars for each offense.” Here, the record reflected that Larry Bagford, a planning and zoning specialist for the city of Hamilton, testified he took a number of steps in determining that appellant had not been issued a certificate of zoning compliance, and found neither the electronic records nor paper files associated with the property contained a certificate of zoning compliance pertaining to the operation of a car lot or auto sales business. Bagford further  testified that despite appellant being notified in October 2016 that it was operating in violation of the city’s zoning ordinances, it refused to cease its operations and continued to use the property for its auto sales business. Accordingly, the judgement was affirmed.

State of Ohio/City of Hamilton v Marfel Motors, Inc., 2018 WL 1792202 (OH App. 4/16/2018)

This post was authored by Matthew Loeser, Esq.

TTC Properties, Inc. (“TTC”) filed applications for zoning changes for its three properties with the Jefferson Parish Planning Department in order to change the zoning classification for the properties from single-family residential R–1A to multifamily residential R–3, which was necessary in order to effect repairs to the damaged structures. After concluding that there had been no substantial change in the area since the 1994 area study that would support rezoning to R–3 Multi– Family Residential or a future land use change to High Density Residential, the Planning Department recommended to the Parish Council that the applications for rezoning be denied. TTC then sought judicial review of the Parish Council’s decisions to deny its rezoning applications by filing a Petition for Writ of Certiorari in District Court. In this case, TTC appealed the judgment of the trial court affirming the Jefferson Parish Council’s motions to deny TTC’s applications to rezone its properties and denying TTC’s Petition for Writ of Certiorari of the Decision of Jefferson Parish Council Concerning Rezoning Application.

On appeal, the court first addressed TTC’s third assignment of error, which was that the denial of the rezoning applications created impermissible “reverse spot zoning” for its three parcels. The record reflected that the Woodmere neighborhood where the parcels were located had been zoned R–1A since 1994, and that the parcels themselves were currently zoned R–1A. Thus, the court found the Parish Council’s decision to deny the requests to rezone the parcels from R–1A to R3 was not “reverse spot zoning.”

TTC next contended that the Parish Council acted arbitrarily and capriciously because it had approved four similar applications to rezone four units in the same neighborhood from R–1A single family to R3 multifamily. Dr. Teresa Wilkinson, the Planning Director for Jefferson Parish, testified as to the technical basis for the recommended denials, including the difference in density between R1–A and R–3, as well as lot area per family and the viability of single-family homes in the area. Wilkinson further testified that there was no technical difference between the prior four applications and TTC’s applications. Moreover, while the court acknowledged that there was little evidence in the record of the Parish Council’s reasoning behind denying TTC’s applications, the evidence presented demonstrated that it received the recommendations of both the Planning Department and the PAB that TTC’s applications be denied. As such, the court affirmed the judgment of the trial court, holding that the Parish Council’s decisions to deny TTC’s applications for rezoning of these three properties were not arbitrary and capricious.

TTC Properties v Parish of Jefferson, 237 So. 3d 623 (LA App. 12/27/2017)


This post was authored by Matthew Loeser, Esq.

On November 4, 2017, Neal Morris commissioned a local artist to paint a mural on a commercial property he owned. The mural quotes a comment made by Donald Trump, recorded in a 2005 “Access Hollywood” segment; the mural replaces with pictograms two vulgar words used by Trump. Four days later, the City of New Orleans Department of Safety and Permits sent Morris a letter advising him that the mural violated a zoning ordinance. Specifically, Jennifer Cecil, the director of the City’s “One Stop for Permits and Licenses,” stated the mural was a violation of Section 12.2.4(8) of the Comprehensive Zoning Ordinance, which concerned “Prohibited Signs—Historic District.” Morris was then told to remove the mural, but rather than do so, Morris brought suit against the City, and moved for a preliminary injunction.
The City requested that the Court move the preliminary injunction hearing, set for April 18, 2018, until July 25, 2018. The City claimed that this continuance would allow the City “to take the steps necessary to legislatively amend the City Code section 134-78A, which will moot this litigation entirely.” However, the City could offer no guarantee that its proposed ordinance – which had not yet been drafted – would be passed, or if it would even redress the plaintiff’s alleged constitutional harm. As such, the Court found that the City’s request for a three-month delay in reaching the merits of Morris’s request for injunctive relief was unreasonable even under the circumstances of an upcoming change in administration. The City’s second motion was therefore denied.

Morris v City of New Orleans, 2018 WL 1705577 (ED LA 4/9/2018)

This post was authored by Matthew Loeser, Esq.

MJM Real Estate Investments, LLC sought to renovate its property located within the Broadway Historic Preservation District. In this District, the Metropolitan Historic Zoning Commission has jurisdiction to insure the ongoing preservation of structures of historic value. Additionally, the Commission must approve any changes made to the building through a permitting process. MJM filed an application with the Metropolitan Historic Zoning Commission to obtain a permit to renovate a 1935 industrial building in the Broadway Historic Preservation District in downtown Nashville. On March 16, the Commission partially approved the application, but required modifications before a permit would be issued. Specifically, the Commission denied the request to install vertically operable windows because they were not consistent with the style of the original 1935 windows. The Commission also required the construction of a parapet wall around the fifth story rooftop deck to hide the building’s rooftop additions because the additions were not compliant with the design guidelines for the district. The chancery court affirmed the Commission’s decision.

At the outset, the court determined that the Commission’s failure to issue a permit within thirty days of the March 16 meeting did not constitute an implied approval of Petitioner’s application as initially presented. The record reflected that the minutes from the March 16 meeting and the subsequent communications and demonstrated that the permitting process was delayed because the Commission required additional data and revised plans before a decision could be made. Moreover, the record revealed that the Commission and Petitioner mutually agreed to the delay.

Petitioner next contended that the trial court erred by affirming the Commission’s decision to deny vertically operable windows and to require Petitioner to replace a railing with a parapet wall. The Design Guidelines provide that “if replacement windows or window surrounds are necessary, replacements should replicate originals. If original windows do not exist, replacements should be appropriate for the building’s style and period.” As such, the trial court correctly determined that the replacement windows must be compatible with the historical character of the building and the historical nature of the District.

Petitioner next argued that the Design Guidelines permit railings on rooftop additions and do not require parapet walls to hide them. While the court agreed with Petitioner’s assertion, the evidence demonstrated that parapet walls were a common architectural feature in the District. As such the trial court properly affirmed the Commission’s decision, based on its finding that the parapet wall would be more in keeping with the style of the original 1935 building and would harmonize the building with the rest of the District.

MJM Real Estate Investments, LLC v Metropolitan Government of Nashville and Davidson County, 2018 WL 1560650 (TN App. 3/29/2018)

This post was authored by Matthew Loeser, Esq.

Plaintiff Congregation ARIEL Russian Community Synagogue, Inc.’s wanted to provide a synagogue for its congregation and residence for Rabbi Belinsky on their property in Pikesville, Maryland. Pertinent to this case, the Baltimore County Zoning Regulations (“BCZR”), sets forth that once a Final Development Plan (“FDP”) has been approved, the lot cannot be used, nor can any construction take place, that is inconsistent with the FDP. Here, ARIEL wanted to consolidate Lots 3, 3A, and 3B, and filed a Petition for a Special Hearing with the Office of Administrative Hearings for Baltimore County. The Abels, owners of the adjoining property, filed a Petition for a Special Hearing, seeking a decision regarding whether ARIEL’s Petition complied with the requirements for amending an FDP. The Administrative Law Judge (“ALJ”) denied the FDP amendment, and found that while ARIEL’s proposed improvements “largely complied” with the RTA Regulations, they did not comply with the requirements for amending an FDP. On appeal, the Board concluded that ARIEL’s proposed improvements did not comply with the RTA Regulations or the requirements for amending the FDP.

Defendants first moved that the Court abstain from exercising jurisdiction over this case under Burford v. Sun Oil Co., 319 U.S. 315 (1943) and Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Defendants contended that the Burford abstention applied in this case because the BCZR was a complex regulatory scheme that encompassed matters of local concern and there was a “fair and expeditious process” for judicial review. Here, Plaintiffs’ claims were premised on the Board’s denial under the BCZR of Plaintiffs’ proposed plan to construct a place of worship on the Property and sought monetary damages. The court therefore held that the Burford abstention was inappropriate as to the RLUIPA and federal constitutional claims. The Colorado River abstention permits the Court to stay or dismiss pending litigation “out of deference to…parallel litigation brought in state court.” Here, however, the parties were not substantially similar because ARIEL was not litigating claims against the Board or the County during the administrative proceedings. Furthermore, while Rabbi Belinsky was a party to this action, he was not a party to the Board proceedings.

Defendants next argued that Plaintiffs failed to exhausted the available administrative remedies. The court noted that after the Board denied ARIEL’s request for a special exception and FDP amendment, ARIEL could have appealed to the Circuit Court for Baltimore County, Maryland, but did not. The court found that despite this, the Plaintiffs did not have to exhaust administrative remedies before bringing their §1983, FHA, or RLUIPA claims.

Lastly, the Defendants challenged Rabbi Belinsky’s standing under RLUIPA. The Court found that there was an oral lease agreement between ARIEL and Rabbi Belinsky, and as a result, Rabbi Belinsky had a property interest in the property. Nevertheless, the Court held that Rabbi Belinsky lacked standing to bring the nondiscrimination and equal terms claims, as RLUIPA’s nondiscrimination provision applies only to “any assembly or institution.” Similarly, RLUIPA’s equal terms provision applies only to “a religious assembly or institution.” Accordingly, the Court granted Defendants’ Motion as to the nondiscrimination and equal terms claims and denied the Motion as to the substantial burdens claim.

Congregation Ariel Russian Community Synagogue, Inc. v Baltimore County, 2018 WL 15535494 (D MD 3/28/2018)

This post was authored by Matthew Loeser, Esq.

Ogle County granted a special-use permit to operate a “Motor Carrier Facility” to store garbage trucks and dumpsters on a property owned by the Stukenbergs and STKE, LLC. The property was located in an AG-1 agricultural zoning district, and surrounded by private property containing unimproved farmland and rural home sites, farm buildings, and single-family homes. The surrounding property was being used consistently with the AG-1 zoning. Plaintiff Paul owned property adjacent to the Stukenberg property, and the DeHavens owned property approximately 1250 feet away. Plaintiffs alleged that the proposed use would be unconstitutional as applied to their properties. In this case, Plaintiffs claimed that the trial court erroneously held that they lacked standing to challenge the County’s granting of a special-use permit on nearby property and that they did not allege a facial challenge, as required, to the ordinance approving the special use.

The court first noted that it was unclear whether a plaintiff challenging the granting of a special-use permit for a neighboring property had a duty to plead special damages. Here, Plaintiffs claimed that Paul’s property was immediately adjacent to the subject tract and that the DeHavens’ property was within 1250 feet of it. Based on the proximity of these properties, the court determined that effects such as noise and odors would be felt more acutely on plaintiffs’ properties than on those many miles distant. Furthermore, Plaintiffs allege that “run-off from the garbage dumpsters and garbage trucks would drain to the bottomland areas which were immediately adjacent to the Walter Paul property.” As such, the court held that plaintiffs adequately pleaded that they would suffer damages different from those of the public generally.

Defendants next contended that, even if the trial court erred in dismissing the entire complaint, its dismissal of count II should be affirmed because the count failed to state a claim. In count II, plaintiffs alleged that the county failed to follow its own zoning ordinance in granting the special-use permit. The court determined that if a municipality violates its own valid ordinance, its action is illegal, and the courts may enjoin it. Accordingly, the court reversed the dismissal of count II.

Plaintiffs lastly claimed that count III, which sought to enjoin the proposed use, was likewise improperly dismissed. Defendants’ argument that the claim was insufficient restated their previous arguments about the complaint in general. As such, the court declined to consider whether plaintiffs’ specific allegations were sufficient to state a cause of action for injunctive relief. Accordingly, the court reversed the dismissal of count III.

Paul v County Officials of Ogle, 2018 WL. App. 2d 170699 (IL App. 4/20/2018)

This post was authored by Matthew Loeser, Esq.

Property owners Cameron and Mary Susan Arnegard brought an action against the Township, alleging claims for breach of contract, actual fraud, equitable estoppel, negligence, and deceit with regard to the Township’s refusal to renew a conditional use permit (CUP) for the construction of temporary workforce housing in an agricultural-zoned area. The District Court, McKenzie County, denied township’s motion for summary judgment, dismissed property owners’ claims for breach of contract, actual fraud and equitable estoppel, granted township a directed verdict on the deceit and negligence claims, granted property owners a directed verdict on their due process claim, awarded damages of $1, and did not submit any issue to the jury.

The record reflected that the Township followed statutory procedure by publishing notices for both the January regulations and the March 2012 amendments in the official County newspaper. The Township also posted notices for both matters in Arnegard City Hall and the City of Arnegard’s post office. The Township held public hearings for both matters, and the parties did not dispute that citizens of the Township were afforded the opportunity to be heard. The court therefore found the Township validly enacted both the January zoning ordinances and March 2012 amendments.

On appeal, the Arnegards claimed the CUP was a contract, and the district court erred by finding no evidence of a contract and granting summary judgment dismissing their claims for breach of contract, actual fraud and equitable estoppel. Here, however, the district court found no authority interpreting CUPs under contract principles and ruled the breach and actual fraud claims failed without a contract. The court determined that a CUP is issued under zoning ordinances, and an issuing body therefore not free to give its consent in the required sense of a contract. Accordingly, the district court did not err by dismissing the Arnegards’ breach of contract and actual fraud claims.

The Arnegards next contended that the district court incorrectly dismissed their claim for equitable estoppel based on the lack of a contract. Here, the Arnegards did not present evidence of substantial expenditure, but claimed only lost opportunity or diminution in value. This claim arose from alleged lost opportunities based on development or sale negotiations, which the Arnegards conceded never amounted to a final agreement. Thus, while the dismissal of an equitable estoppel claim for lack of an underlying contract was a misapplication of the law, the court nevertheless concluded that the Arnegards’ claim was properly dismissed as they failed to show substantial reliance sufficient to invoke the protection of estoppel.

Lastly, the Arnegards alleged that the district court abused its discretion in denying their motion to amend the complaint to include a 42 U.S.C. § 1983 claim for violation of due process. Specifically, the Arnegards claimed the district court erred by granting the Township’s motion in limine to exclude evidence of offers to sell the property, as they intended to use this evidence to show diminution in value for damage calculations. However, as the court affirmed the dismissal of the underlying claims, it found this issue did not need to be addressed. Accordingly, the judgment regarding the Arnegards’ due process claim and the award of nominal damages was reversed and remanded.

Arnegard v Arnegard Township, 908 NW2d 737 (ND 3/22/2018)

This post was authored by Matthew Loeser, Esq.

Defendant Stanley Sikorski desired to build a four-bedroom, two-and-a-half story single family residence on a vacant lot in Provincetown. Despite the fact that § 2640 of the zoning by-law that regulates the scale of new construction and additions expressly states that it “is applicable to all new buildings and all additions in all zoning districts in Provincetown,” the building commissioner and zoning board of appeals concluded that the by-law’s proscriptions were inapplicable to the proposed building. In an appeal brought by abutters Jonathan Sinaiko and Camille Cabrey, the Superior Court judge upheld the board’s decision on cross motions for summary judgment in favor of Defendant. On appeal, the abutters argued that the plain language of § 2640 required its application, and the by-law required Sikorski to seek a special permit for his proposed building.

The court found that the by-law, by its own language “is applicable to all new buildings and all additions in all zoning districts in Provincetown.” Here, there were no buildings in the relevent neighborhood, so the board concluded that the by-law placed no limits on the proposed building’s size. Rather than allowing a building to be constructed with no size limitation, or setting the neighborhood average at zero and requiring a special permit for any house to be built, the court analyzed the building commissioner’s decision. The building commissioner ended up with no existing structures on which to determine a neighborhood average only because he excluded the two existing structures that were located within 250 feet of the center of the lot. However, nothing in the language of § 2640 compelled the building commissioner to exclude existing structures when doing so would leave him without a basis upon which to set a neighborhood average.

Accordingly, the court reversed, finding the proposed building was too large to be approved under the board’s interpretation without a special permit.

Sinaiko v Zoning Board of Appeals of Provincetown, 2018 WL 2376520 (MA App. 5/25/2018)

This post was authored by Matthew Loeser, Esq.

In 2014, the Board of Adjustment granted Tiny Tots Learning Center a permit to operate. Tiny Tots closed, and the property was vacant from December 2014 to July 2016. In July 2016, Mz. Annie-Ru Daycare Center, a new lessee of the premises, opened a daycare at the same location. Annie-Ru supervised more children and was open for longer hours than Tiny Tots. Regardless of this, the Davenport Zoning Administrator determined the special use permit issued to Tiny Tots “runs with the land.” A nearby resident, Kenneth Burroughs, and several other residents appealed the Zoning Administrator’s decision to the Board of Adjustment. The Board of Adjustment upheld the City staff’s recommendation. Burroughs and other nearby residents then filed a petition to revoke Annie-Ru’s special use permit, and the Board of Adjustment unanimously voted against revoking the special use permit. Burroughs filed a petition for writ of certiorari in the Iowa District Court for Scott County challenging the Board of Adjustment’s decisions. The court denied the petition, concluding that the “thirty day time period begins to run from the time the appealing party has either actual knowledge or is chargeable with knowledge of the decision to be appealed.”

At the outset, the court noted that Iowa Code section 414.15 provides that a petition for certiorari seeking review of a board of adjustment decision “shall be presented to the court within thirty days after the filing of the decision in the office of the board.” The court then determined that a document has been filed in the “office of the board” when it has been posted on the board’s publicly available website that the board uses as a repository for official documents. Here the plaintiffs sought certiorari review of the Board’s: recognition of Annie-Ru’s special use permit; and refusal to revoke that permit. The first action occurred at an October 13, 2016 Board meeting, and the second action occurred at a December 8, 2016 Board meeting. The plaintiffs did not file suit until January 25, 2017. As such, the court found that the challenge to the refusal to revoke the permit was timely because the unapproved minutes of the December 8, 2016 meeting, posted to the Board’s website on December 19, did not amount to “the filing of the decision.” Nevertheless, the plaintiffs did not contest that the minutes of the October 13 Board meeting had been posted, that they had been approved, and that the approval had been posted on the Board’s website more than thirty days before the plaintiffs went to court. The court therefore held that portion of plaintiffs’ challenge untimely.

Burroughs v City of Davenport Zoning Board of Adjustment, 2018 WL 2372570 (IA 5/25/2018)

This post was authored by Matthew Loeser, Esq.

This case arose from the Plymouth planning board’s approval of three zoning permits issued to defendant Renewable Energy Development Partners, LLC (“REDP”), to build a solar development ground-mounted photovoltaic project on three lots off Herring Pond Road in Plymouth. To obtain zoning permits, REDP submitted an application with an accompanying site plan. The building inspector determined that the project was not an allowed use under the by-law. He also found the by-law prohibition was in violation of G. L. c. 40A, § 3, which set forth that “[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems ….” The building inspector approved REDP’s application for the project, and the board unanimously approved the site plan. Lafond, an abutter to the site, learned about the project and requested the issuance of a stop work order and enforcement of § 205–40 of the by-law, which governed uses in the rural residential zone. When Lafond’s request was denied, he filed a two-count complaint in the Land Court, alleging that the zoning permits and site plan review of the project were invalid. The Land Court held that it lacked jurisdiction since Lafond failed to appeal the building inspector’s denial to the zoning board of appeals.

The court found that the record reflected the building inspector considered whether the project was a permissible use under the existing by-law. The building inspector found that it was not, but determined that the by-law was violative of State law. The court held that any grievance with this determination would be precisely the type of dispute that G. L. c. 40A, § 8, governed. Thus, the zoning board of appeals was in the best position to determine whether the building inspector’s interpretation of the bylaw was correct. Here, since Lafond had the opportunity to appeal the building inspector’s decision, but failed to do so, he failed to exhaust administrative remedies. Accordingly, the court affirmed the Land Court’s decision.

Lafond v Renewable Energy Development Partners, LLC, 2018 WL 1734566 (unrep. MA App. 4/11/2018)


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