Section 54.012(3) of the Texas Local Government Code authorizes a municipality to pursue a civil action against a property owner to enforce an ordinance “for zoning that provides for the use of land or classifies a parcel of land according to the municipality’s district classification scheme.” Despite section 54.012(3)’s clear and unambiguous language, the court of appeals held that a municipality cannot pursue a civil action under that statute for violations of “general zoning ordinances regulating the use of land.” Here, the City of Dallas contended that TCI West End, Inc. demolished a building located in a historic overlay district in violation of a city ordinance, and the City sued TCI for civil penalties under section 54.017 of the Texas Local Government Code.

The court of appeals interpreted section 54.012(3) as incorporating a health-and-safety limitation. However, the court determined that by interposing a limitation into subsection (3) that the Legislature deliberately chose to include in some—but not all—of section 54.012’s subparts, the court of appeals’ construction of the statute defeated the purpose of the Legislature’s carefully chosen words. Thus, its holding was found erroneous.

The court of appeals also determined that the City’s civil-penalty claim would fail on the merits due to legally insufficient evidence that TCI had received actual notice of the ordinance provision before it demolished the building in violation of the ordinance. This argument likewise failed, however, because section 54.017 authorizes an award of civil penalties if the defendant violated an ordinance after receiving notice of its provisions or failed to take action necessary for compliance with the ordinance after receiving such notice. Thus, the court failed to consider whether TCI could have sought a post-demolition permit or taken other steps “necessary for compliance with the ordinance after receiving such notice.” The court of appeals’ judgment was therefore reversed.

City of Dallas v TCI West End, Inc., 2015 WL 2147986 (TX 5/8/2015)

The opinion can be accessed at: http://law.justia.com/cases/texas/supreme-court/2015/13-0795.html

In 2005, the Village of Downers Grove changed its rules on the display of commercial signs. Robert Peterson is the owner of Leibundguth Storage & Van Service, Inc., which has displayed several large signs identifying and advertising its business on the outside of its Downers Grove location for decades. Leibundguth says that these signs are an important source of business, but they did not conform to both the type and quantity restrictions of the amended sign ordinance. Peterson and Leibundguth seek a declaratory judgment that the ordinance violates the First and Fourteenth Amendments of the United States Constitution and Article I, Section 4 of the Illinois Constitution, and a permanent injunction against enforcing the ordinance.

As to the first claim, the Village asserted that Leibundguth lacked standing to generally challenge the entire sign ordinance Leibundguth could not call into question the constitutionality of the sign ordinance as a whole by attacking its problematic portions. However, the amended complaint did not seek to invalidate the entirety of the sign ordinance, only the unconstitutional “content-based restrictions” currently affecting Leibundguth. Next, the Village asserted that the rules in question were constitutionally proper “content neutral time, place, and manner” restrictions. Because there was a distinction between commercial and non-commercial signs, the court determined that the sign ordinance operated as a restriction based on content. Beyond conclusory statements, the Village failed to present its carefully-calculated reasons justifying the ordinance as a reasonable fit, and did not offer any evidence to shed light on the actual scope of the asserted problems it sought to remedy by the ordinance. Accordingly, the motion to dismiss was denied.

Peterson v Village of Downers Grove, 2015 WL 1929737 (ND Ill. 4/27/2015)

The opinion can be accessed at: http://www.leagle.com/decision/In%20FDCO%2020150428A35/PETERSON%20v.%20VILLAGE%20OF%20DOWNERS%20GROVE

Editor’s Note: This summary appeared in Bond Case Briefs – http://bondcasebriefs.com/

Metropolitan Utilities District installed a gas regulator station in the public right-of-way in front of home. Homeowner brought an inverse condemnation proceeding alleging that MUD had engaged in a taking which caused damage to the property through the installation of a “dangerous, obnoxious, and unsightly” gas regulator station.

The District Court granted MUD’s motion for summary judgment and homeowner appealed.

The Court of Appeals noted that this case featured a question of first impression, due to the fact that the homeowner had alleged an inverse condemnation action where there had been no physical intrusion or taking of its property, but only a damaging of the property by virtue of a loss of value to the property. “Thus, we ask, In an inverse condemnation action, must there be an actual physical taking or invasion of the landowner’s property?”

The court concluded that, in an action for inverse condemnation due to a governmental taking or damaging of a landowner’s property without the benefit of condemnation proceedings, actual physical construction or physical damaging is not necessary for compensation. As such, the district court erred, as a matter of law, in determining that the homeowner was not entitled to the benefit of inverse condemnation proceedings based on there being no actual taking or physical invasion of the property.

However, the court also found that a diminution in property value alone was not a taking or damaging of the property, but, instead, is a measure of just compensation when such taking or damaging is otherwise proved.

6224 Fontenelle Boulevard, L.L.C. v. Metropolitan Utilities District, 22 Neb.App. 872 (NE App. 5/5/15)

Following a voter approved ban on fracking in Denton, TX, the governor of Teaxs, Greg Abbott, signed a new law (HB 40) prohibiting municipalities from enacting such bans.  According to the New York Times last week, “Lawmakers moved Monday to prohibit Texas cities from banning hydraulic fracturing and other potentially environmentally harmful oil and natural gas drilling activities within their boundaries, a major victory for industry groups and top conservatives. The state scrambled to limit local energy exploration prohibitions after Denton, a university town near Dallas, passed an ordinance in November against fracking, trying to keep encroaching drilling outside their community. The measure by Representative Drew Darby, a San Angelo Republican, allows communities to regulate things above ground such as noise, traffic and lighting associated with oil and gas activities, but forbids most limits on activity below the surface. The bill passed the Senate on Monday and was sent to Gov. Greg Abbott, a Republican, who is expected to sign it.”

See: http://www.wsj.com/articles/texas-moves-to-prohibit-local-fracking-bans-1431967882; and http://gov.texas.gov/news/signature/20903

Wayne C. Perkins applied to the Ogunquit Planning Board seeking site plan review and design review approval to convert his garage, reached from Shore Road, into a lobster pound with the anticipation of cooking some of the lobsters prior to sale. Although the sale of live lobsters was a permitted use in the zone at issue, the cooking of lobsters presented a question of ordinance interpretation. After a public hearing, the Board approved Perkins’s site plan review and design review application without requiring Perkins to comply with certain mandatory provisions in the Ordinance. The Hartwells, abutting landowners, sought judicial review in the Superior Court. The review resulted in a remand to the Board based on the Board’s failure to apply the requirements of the Ordinance. On remand, Perkins supplemented his application with the necessary written requests to waive certain provisions for site plan review approval, but he did not submit the required elevations of the property to comply with the requirements for design review approval. The issue was again brought to the Superior Court, which adopted the Hartwells’ assertion that the lobster pound was properly classified as a prohibited restaurant, not a permissible retail establishment. Accordingly the Board’s approval of the site plan application was vacated.

Here, the record before the court was devoid of any factual findings by the Board at the time of its final approval regarding Perkins’s use of the property, including the scope of Perkins’s authorized use or any findings addressing the factual allegations of the abutters. Because the Board failed to make sufficient and clear findings of fact and such findings were necessary for judicial review, the court remanded the matter to the Board to make the findings. The court furthermore affirmed the judgment of the Superior Court with respect to design review approval, specifically with regard to the missing elevations mandated by the Ordinance since the Board did not have the power to waive this requirement.

Hartwell v Town of Ogunquit, 2015 WL 2038302 (ME 5/5/2015)

The opinion can be accessed at: http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2015/15me51ha.pdf

Donald Paradis applied for and obtained a building permit to construct a two-car garage on a parcel of property in the Town of Peru. About three years later, the Town sent Paradis a notice of violation stating that “after careful consideration amongst the Planning Board, the Board of Selectmen, and the Code Enforcement Officer of Peru,” the Town had determined that the garage constructed in 2010 violated multiple Ordinance provisions, and requested that Paradis take various actions to bring the property into compliance with the Ordinance, including removing certain plumbing fixtures, or else face legal action from the Town. Paradis then brought this appeal from a judgment of the Superior Court, which affirmed the decision of the Town of Peru Board of Appeals on Paradis’s appeal of a notice of violation.

Until very recently, appeals of notices of violation were not justiciable because a notice merely provided an interpretation of an ordinance; unless and until a municipality acted to enforce the decision in some meaningful way, appeals from notices of violation were “dismissed as calling for an advisory opinion.” However, in 2013, the Maine Legislature enacted a statutory amendment providing for board of appeals and Superior Court review of municipal notices of violation. Despite this, because the notice of violation at issue here was sent before the effective date of this 2013 statute, and because the Town’s Ordinance expressly stated that no appeal from a notice of violation may be taken, it did not by its express terms does not provide Paradis with a right to appeal. Accordingly, the judgment of the Superior Court was vacated and remanded with instructions to enter an order vacating the decision of the Town of Peru Board of Appeals for lack of jurisdiction.

Paradis v Town of Peru, 2015 WL 2114385 (ME 5/7/2015)

The opinion can be accessed at: http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2015/15me54pa.pdf

Stephanie Miller and her husband James Stellhorn, along with their co-owned company, Harlan LLC, brought suit under 42 U.S.C. § 1983 against the City of Monona, Wisconsin, and various public officials involved in their protracted effort to gain approval to build a condominium project. Miller raised claims of class-of-one and sex discrimination under the Fourteenth Amendment, and unreasonable search of the property under the Fourth Amendment. The district court dismissed the class-of-one claim, reasoning that Miller had not pointed to any similarly situated development project that had been treated more favorably. Although Miller proceeded, unsuccessfully, to summary judgment and trial on her other claims, in this appeal she challenged only the dismissal of the class-of-one claim.

For a class of one claim, a plaintiff will typically show an absence of rational basis by identifying some similarly situated person who was treated differently. Here, the court found that the district court’s first reason for rejecting the Metcalfe project as a comparator, the relative sizes of the two projects, was not persuasive because it would seem natural for the larger project to receive extra scrutiny. Despite this, the court’s second reason, that Miller’s property alone required asbestos removal was sound; the buildings on her property required multiple rounds of asbestos removal and eventual demolition, while the Metcalfe project was not alleged to have had any similar problems. Furthermore, it was clear from the first amended complaint that Miller’s property contained dilapidated structures requiring multiple rounds of asbestos removal which took more than half a year to complete, that she delayed her compliance with local code-enforcement efforts, and that a municipal court ultimately held that she had violated Monona’s building code by beginning demolition without proper permitting. For all of these facts, however, Miller’s complaint stated rational reasons for the government officials’ actions. Therefore, the judgment dismissing the class of one claim was affirmed.  

Miller v City of Monona, 2015 WL 1947886 (7th Cir. 5/1/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/us-7th-circuit/1699456.html

The petitioners SCJB 400, LLC, owner of 400 East Jericho Turnpike in Mineola, and 7–Eleven, requested a special use permit to construct a convenience store on the premises. At a public hearing conducted by the Incorporated Village of Mineola Board of Trustees, experts retained by the petitioners asserted that a convenience store on the premises would not adversely affect the surrounding properties by exacerbating traffic conditions or decreasing property values. Various Board members and owners of nearby properties opposed the special use permit application, primarily based on their belief that the convenience store’s clientele would be unsavory, and that the presence of the proposed store would exacerbate existing traffic congestion. However, even though no expert evidence was provided in opposition to the petitioners’ expert evidence, the Board denied the petitioners’ application, citing concerns about traffic and parking. The petitioners then appealed from a judgment of the Supreme Court, Nassau County, which denied the petition and dismissed the article 78 proceeding.

The court found that the claims of Board members and nearby property owners that the granting of the special use permit application would exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners. Furthermore, the Board did not take into account 7–Eleven’s expressed willingness to abide by certain restrictions on the size of delivery trucks and the timing of deliveries. The court therefore reversed, finding that the Board’s denial of the petitioners’ special use permit application was not supported by the evidence in the record, and the denial was arbitrary and capricious.

7-Eleven, Inc. v Incorporated Village of Mineola, 2015 WL 1915853 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_03544.htm

 

 

Petitioners appeal the denial of a permit to operate an automotive repair shop on their property. Even though the trial court had erred in transferring the proceeding pursuant to CPLR 7804(g), because the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, held pursuant to direction of law, the court elected to decide the matter on its merits.  The Putnam Valley Code provides, in relevant part, that a nonconforming use status is lost when such nonconforming use “is inactive or ceases … for a continuous period of more than two years.” The court found that contrary to the Zoning Board’s contention, the minimal extent of the nonconforming use in this case did not constitute either inactivity or cessation for the requisite time period, since there had been some automotive repair activity during the relevant time period. Thus, the determination of the Town of Putnam Valley Zoning Board of Appeals that the petitioner’s property had lost its nonconforming use status as an automotive repair shop did not have a rational basis, and was arbitrary and capricious.

TAC Peck Equities, Ltd. v Town of Putnam Zoning Board of Appeals, 2015 WL 1915498 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D45151.pdf

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Southold, which denied the petitioners’ application for area and lot-width variances, the Zoning Board of Appeals of the Town of Southold appealed from a judgment of the Supreme Court, Suffolk County. The Supreme Court had granted the petition, annulled the determination, and directed the Zoning Board of Appeals of the Town of Southold to grant the application.

Since local zoning boards have broad discretion in considering applications for variances, judicial review was limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion. Here, the court found that the denial by the Zoning Board of Appeals of the Town of Southold of the petitioners’ application for area and lot-width variances to build a single-family dwelling had a rational basis and was supported by evidence in the record. Furthermore, the granting of the variances would have resulted in the creation of a nonconforming lot in a unique neighborhood. Finally, the court determined that the ZBA’s granting of a particular prior application for an area variance did not constitute a precedent from which the ZBA was required to explain a departure, especially since the petitioners failed to establish that the prior application bore sufficient factual similarity to the subject application. Accordingly, the court held that the Supreme Court should not have disturbed the ZBA’s determination denying the petitioners’ application for area and lot-width variances.

Traendly v Zoning Board of Appeals of Town of Southold, 2015 WL 1915489 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D45128.pdf

Older Posts »

Categories

Follow

Get every new post delivered to your Inbox.

Join 1,034 other followers