This post was authored by Amy Lavine, Esq.

A New York appellate court held in May that a lawsuit involving a town’s payment of development consulting fees was properly dismissed.

The Town of Middletown entered into a one-year consulting contract in 2013 with a rural development not-for-profit. The $5,000 contract was renewed in 2014 and 2015, but a ministerial error prevented the contract from being formally renewed in 2016. The town board nevertheless approved payments for the consulting services rendered in 2016, and the plaintiff then commenced this lawsuit in order to compel repayment of the allegedly illegal 2016 consulting fees.

The court first dismissed the claim that the 2016 payments were an illegal use of public funds because they were not paid pursuant to a valid contract. The cause of action was rendered moot, the court explained, by the town’s adoption of a resolution that ratified and approved the 2016 renewal of the consulting contract. Moreover, the court noted that the plaintiff failed to make sufficient allegations of fraud or illegality to establish taxpayer standing under New York law.

The court found that the plaintiff’s remaining causes of action were properly dismissed for failure to state a claim. The plaintiff’s second and fourth claims alleged that the consulting company failed to comply with disclosure rules regarding conflicts of interest, but these rules did not apply to the consulting company, which was not a “municipal officer or employee.” The only interest that the plaintiff claimed was not disclosed, moreover, was the consulting agreement itself, and the court agreed with the trial court’s finding that it would have been “absurd” to require the consulting company to disclose the same contract that it was entering into with the town. As to the plaintiff’s third cause of action, which alleged fraud and intentional misrepresentation, the court concluded that there was no evidence that the consulting company intentionally misrepresented the validity of its 2016 contract. To the contrary, the plaintiff’s own affidavit showed that the town was aware that the contract had expired when it approved the payments for the 2016 consulting fees.

As a final matter, the court affirmed the denial of the plaintiff’s motion to reargue and/or renew. The court noted that the denial of a motion to reargue is not appealable, and it found that there was no basis for renewal because the plaintiff had not alleged any new facts or changes in the law that would have required a different result.

Budin v. Davis, 2019 NY Slip Op 03866 (3d Dept. 5/16/19).

This post was authored by Matthew Loeser, Esq.

The 25-acre parcel of land at issue, known as the Filtration Complex, occupied roughly one fourth of the McMillan Reservoir and Filtration Complex landmark recognized in the D.C. Inventory of Historic Sites. In the early 2000s, the District selected Vision McMillan Partners (“VMP”) to partner with the Office of the Deputy Mayor for Planning and Economic Development (“DMPED”) in developing the Filtration Complex site. In 2014, VMP and the DMPED applied for approval of the plan for a mixed-use development on the site, to include: medical office buildings, rental apartments, rowhouses, a grocery store, various retail stores, a public recreation center, park space, and a preserved and exposed sand filtration cell. The plan also involved subdivision of the Filtration Complex site and the demolition of all but one and a half of the remaining underground filtration cells on the site.

The local Advisory Neighborhood Commission (“ANC”), ANC 5E, approved the final development plan as responsive to the community’s requests. The Board concluded that the plan would “retain important character defining features of the site sufficient to convey its historic characteristics. In this case, Friends of McMillan Park (“FOMP”) challenged the Mayor’s Agent’s approval on remand of subdividing the parcel and demolishing some of its historic structures.

FOMP first contended that the Mayor’s Agent should recuse himself from the case due to his position as the head of the Office of Planning, which was a sub-agency of the DMPED, a co-applicant for this project. The court found, however, that there was no support for FOMP’s claim that the Mayor’s Agent’s impartiality was actually compromised, and even if it were to assume that the public’s perception of the Mayor’s Agent’s impartiality was compromised, FOMP waived this claim by failing to timely raise it.

Next, the court found that while the Mayor’s Agent concluded that subdivision of the site was not consistent with the purposes of the Historic Preservation Act, because it would “facilitate the loss of the site’s significant open space character,” he also determined that the net preservation loss from subdivision was slight, as the proposed subdivisions would “retain important elements of the organization of the space” and foster beneficial adaptation of the site for current use. Both of these findings related to the key purposes of the Historic Preservation Act. Once the Mayor’s Agent found that subdivision of the site was inconsistent with the purposes of the Act, he considered whether the project was of special merit such that it could be approved despite its inconsistency. Specifically, he found that the project would provide significant benefits to the District and the community due to its use of “specific elements of land use planning” and its “provision of high priority community and District benefits.”

The record reflected that the Mayor’s Agent also found that the applicants had properly considered reasonable alternatives and demonstrated that no reasonable plan could achieve the same special merit benefits with less preservation loss. He found that FOMP had “not suggested an alternative plan with even a glimmer of plausibility.” Thus, the court could not say that the Mayor’s Agent’s assessment of the net preservation loss associated with the project was unreasonable. As such, the court held that the Mayor’s Agent did not err in finding that the special merit of the project outweighed the net historic-preservation loss it would cause, and affirmed the Order of the Mayor’s Agent.

Lastly, to the extent the Mayor’s Agent indicated that the applicants need not make any showing of their ability to complete the project before the DCRA, the court found this finding was incorrect. Here, the Mayor’s Agent’s Order addressed the applicants’ readiness solely with regard to the healthcare building component of the project. The applicants are still therefore required to demonstrate ability to complete the entirety of the project at the time they apply for a demolition permit from the DCRA. Accordingly, until the appeal of the Zoning Commission’s approval of the PUD application is resolved, the court found the applicants cannot commence demolition.

Friends of McMillan Park v. District of Columbia Mayor’s Agent for Historic Preservation, 2019 WL 2134459 (DC App. 5/16/2019)

This post was authored by Matthew Loeser, Esq.

Respondents SUN8 PDC LLC and Distributed Sun LLC leased farmland owned by respondent Scott Pinney in the Town of Dryden, Tompkins County in order to construct five separate community solar projects. These community solar projects would use a group of ground-level solar arrays in a central location and provide utility-bill credits to subscribers in the community. In 2017, the Dryden Town Board granted SUN8 a special use permit and site plan approval and respondent Town of Dryden Planning Board approved the preliminary subdivision plat. Petitioners Willow Glen Cemetery Association and Sarah Osmeloski, who both owned land adjacent to the farmland, commenced two separate proceedings to enjoin the issuance of building permits and to challenge the Planning Board’s approval of the preliminary plat. The Supreme Court dismissed both petitions, and petitioners thereafter commenced this CPLR article 78 proceeding seeking to annul the Planning Board’s resolutions. Supreme Court denied the motion and dismissed the petition.

On appeal, petitioners asserted that Supreme Court erred in determining that Town Law § 280–a was inapplicable. As it pertains to this case, Town Law § 280–a (1) provides that “no permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan” The trial court noted that the solar arrays met the definition of structure, but not the definition of building, as “they were not covered or enclosed.” Since the solar project did not concern the erection of a building, the court found Town Law § 280–a did not apply to this proceeding. Notwithstanding the above, the court further determined that the record contradicted petitioners’ claim that Lot 1 on the final subdivision plat failed to comply with the frontage and access requirements of Town Law § 280–a and Town of Dryden Zoning Law § 602. Accordingly, the judgement of the Supreme Court of New York was upheld.

Perkins v. Town of Dryden Planning Board, 2019 WL 2127373 (NYAD 3 Dept. 5/16/2019)

This post was authored by Matthew Loeser, Esq.

Sharon Bruning and Robert Bruning leased their agricultural-zoned land in Omaha, Nebraska, to several commercial entities, and then unsuccessfully sought a variance from the requirements of Omaha’s zoning code based on a claim of unnecessary hardship before the City of Omaha Zoning Board of Appeals. The district court for Douglas County affirmed the decision of the Board.

On appeal, the Brunings contended that they were entitled to a variance as carrying out the strict letter of the ordinance would cause “unnecessary hardships.” The court noted that with respect to self-created hardships, they are those which “result from affirmative acts of the property owner and which could have been avoided through a different course of action.” 2 Patricia E. Salkin, American Law of Zoning § 13:16 at 13-133 to 13-134 (5th ed. 2018). Here, when the Brunings developed and began leasing the property to others, and thereby expanded to numerous separate businesses and uses, their activities became incompatible with agricultural use. As such, the hardship at issue was self-created.

The district court found “substantial evidence in the record” to support the Board’s decision. The record included recommendations from the City, numerous exhibits, input from stakeholders, and testimony offered at four hearings. Additionally, the Board discussed the issues extensively, including life safety, public works, zoning issues, and proposed solutions, and even toured the property during the process. The court further found that the Brunings were not deprived of all beneficial or reasonable use of their agricultural zoned land to constitute a legally cognizable hardship. As substantial evidence supported the district court’s factual findings, the denial of the variance was affirmed.

Bruning v City of Omaha, 303 Neb. 146 (5/17/2019)

This post was authored by Matthew Loeser, Esq.

Defendant Bezy resided in Warren and grew marijuana in his home, for his own use and for the use of his patients, in accordance with the MMMA. Plaintiff cited defendant for three ordinance violations, all arising from his marijuana operation. Two of these violations arose from Warren Zoning Ordinance, § 5.01(m). This ordinance, which applied to the R-1-A, single-family residential district, prohibited marijuana production and storage unless a number of requirements are satisfied. the district court held that the ordinances were preempted by the MMMA, and dismissed the citations, and the circuit court affirmed.

On appeal, plaintiff and amici curiae argued that the lower courts erred in finding that there was a direct conflict between the MMMA and the city’s ordinances. Specifically, they alleged that the city’s ordinances, which did not fully ban medical marijuana use and only added certain safety restrictions, could coexist with the MMMA. The court found that MMMA provided immunity from arrest, prosecution, and penalty in any manner and prohibited the denial of any right or privilege to qualifying medical marijuana patients and registered primary caregivers. Moreover, no provision in the MMMA authorizes municipalities to restrict the location of MMMA-compliant medical use of marijuana by caregivers, nor did the MMMA authorize municipalities to adopt ordinances restricting MMMA-compliant conduct to home occupations in residential locations.

As the city ordinances at issue added “a layer of restrictions and regulations” that restricted defendant’s cultivation of medical marijuana, the court held that the ordinances directly conflicted with the MMMA and could not be enforced.

City of Warren v Bezy, 2019 WL 2146275 (MI App. unpub. 5/16/2019)

This post was authored by Amy Lavine, Esq.

A New York appellate court ruled in May that attorneys fees were properly awarded in a condemnation action due to the undervaluation of the claimant’s property, but that the amount of the award was improperly based on contingency percentages in the claimant’s retainer agreement.

In the underlying eminent domain action, the city had initially offered to pay about $2 million for the taking of the claimant’s property, but it the amount of just compensation was ultimately set at $11.8 million. In light of this discrepancy, the claimant requested attorneys fees to the tune of approximately $2 million, as well as an additional $70,000 for expert expenses, costs, and disbursements. The trial court agreed that attorneys fees were appropriate, but it awarded less than half of the claimant’s requested amount.

The court held on appeal that the amount of attorneys fees was improperly based on the percentages contained in the claimant’s contingency retainer agreement. Although contingency agreements can be a factor in determining an appropriate award of attorneys fees, the court emphasized that the “focus is upon what would be a reasonable fee.”

The retainer agreement is this case included relatively low percentages, and the court agreed with the claimant that the award of attorneys fees should have been calculated using a contingency formula more typical to similar condemnation actions. The court found that it would be reasonable to apply the same calculation used in a previous determination involving the same project, which set the award of attorneys fees at 25% of the excess of the award over the advance payment. Although there were some differences between the circumstances of this case and the previous award, the court concluded that “taking into account both the arguments made for enhancing and reducing the fee made by the parties here, a fee of $1,366,250 is reasonable in light of the City’s undervaluation of the properties and the effort required to establish the highest and best use of the properties.”

 

Matter of City of Long Beach v Sun NLF Ltd. Partnership, 2019 NY Slip Op 03784 (2d Dept. 5/15/19).

This post was authored by Matthew Loeser, Esq.

Plaintiff, Cindy Watson, owned and operated a business, Haven Transportation, LLC that provided special transportation services to school districts, using minivans. Plaintiff had managed her business from a single room office in her residence since 2013. Prior to November, 2015, drivers using the minivans went to the plaintiff’s residence, both for business and for social events. Following a complaint, the defendant zoning enforcement officer, Peter R. Carey, issued a cease and desist order to the plaintiff. In this case, plaintiff appealed from the judgment of the Superior Court dismissing her appeal from the decision of the defendant Zoning Board of Appeals of the Town of Glastonbury, in which the Board affirmed the decision of Carey, declining to approve the plaintiff’s application for permission to conduct a customary home occupation from a home office within her residence.

On appeal, the plaintiff contended that the court erred in concluding that she needed to prove that her home occupation was “customary,” as other people in Glastonbury also were managing off-site companies from their home offices. Plaintiff further contended that even if “customary” was something outside of the strict requirements of §7.1 (b) (2) (a), her home office was customary in that she used only computers and telephones to manage her business from a single office in her residence. Here, customary home occupation was listed as an accessory use, subject to the provisions set forth in §7.0 of the regulations. Additionally, Section 7.1 (b) (1) of the regulations specifically allowed “special accessory uses and structures,” specifically including a “customary home occupation”. The specific standards for an acceptable customary home occupation then are set forth in § 7.1 (b) (2) (a), and the parking requirements are set forth in § 9.0 of the regulations.

The court determined that a home occupation that satisfied the specific standards set forth in § 7.1 (b) (2) (a) was a customary home occupation under the regulations, and there was no separate and distinct test that an applicant was required to meet in order to satisfy the word “customary.” Instead, if an applicant met the standards, the home occupation was customary under the regulations as adopted by the Town of Glastonbury.

Contrary to the Board’s position, the court found that there was nothing in the plain language of the regulation that prohibited a home occupation that was part of a larger enterprise located off-site. The court illustrated that the board’s interpretation would lead to arbitrary outcomes, through the use of an example of a solo practitioner law firm operated from a residence versus a lawyer working from home by telecommuting. Under the Board’s interpretation, a solo practitioner law firm operated from a residence would be a permitted home occupation, but a lawyer who worked from home by telecommuting to a firm in Hartford would not be a permitted home occupation. The judgment was therefore reversed and the case was remanded to the Superior Court with direction to render judgment sustaining the plaintiff’s appeal and directing the Board to approve her application for a customary home occupation.

Watson v. Zoning Board of Appeals of Glastonbury, 2019 WL 1760110 (CT App. 4/23/2019)

 

 

This post was authored by Matthew Loeser, Esq.

Plaintiff, American Institute for Neuro-Integrative Development, Inc., a Connecticut 501 (c) (3) nonprofit corporation, owned an approximately 11.7-acre parcel of land located in a AA residential zone and was solely accessible by a private driveway off a cul-de-sac. The property contained two buildings: a former parochial elementary school, which the plaintiff occupied; and the former Christ the King preparatory high school. In the former elementary school building, the plaintiff operated its “Giant Steps School”, which was a private school that provided educational and therapeutic services for students with complex neurobiological based learning and developmental disorders. The plaintiff intended to use the former high school building for its proposed project, “Next Steps”. Next Steps would provide continued educational, vocational, and other services to Giant Steps graduates with severe learning disabilities.

Plaintiff applied to the commission for a special exception, and requested permission to use part of the former high school building for Next Steps. Attorney William Fitzpatrick appeared on behalf of the plaintiff and offered presentations from engineers and the founder and executive director of Giant Steps, Kathy Roberts, detailing how the plaintiff’s proposal complied with the technical requirements of the applicable regulations. Despite this, the commission voted five to two to deny the plaintiff’s application, and the Superior Court dismissed the plaintiff’s appeal, holding that the commission properly denied the plaintiff’s application.

In this case, the plaintiff first challenged the court’s conclusion that the commission’s denial could be upheld on the basis of the neighbors’ general traffic concerns. The plaintiff argued that §27.4.3 of the regulations set forth specific requirements, which the plaintiff claimed it had satisfied. Plaintiff further contended that the neighbors’ concerns were too generalized to support the commission’s purported reasons for denial under §27.4.3. The court noted the mere fact that a proposal would generate increased traffic volume was not, in itself, an indication that such traffic will result in “undue hazard or congestion”. Furthermore, plaintiff’s expert traffic engineer, Michael Galante, was the only expert to address any prospective traffic impact; the neighbors did not purport to have the training or skills needed to properly assess traffic impact, or offer an expert’s opinion on their behalf. Accordingly, the court held the neighbors’ comments amounted to generalized concerns about hypothetical effects of increased traffic.As such, the commission’s assigned ground for denial under §27.4.3 of the regulations was not reasonably supported by the record.

Plaintiff next challenged the commission’s other reason for denial, that “it has not been demonstrated that the proposed use is a permitted use in that there is no evidence that the proposed offices for charitable institutions will be nonprofit entities”. The court found this stated reason for denial was unavailing because it required the plaintiff to identify prospective users.  To satisfy §5.1.4 (d) of the regulations, however, the plaintiff was only required to identify the prospective use. The judgment was therefore reversed and the case was remanded with direction to render judgment sustaining the plaintiff’s appeal and directing the commission to approve the plaintiff’s special exception application with reasonable conditions.

American Institute for Neuro-Integrative Development, Inc v Town Plan and Zone Commission of the Town of Fairfield, 2019 WL 1760081 (CT App. 4/23/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiffs, Jeremiah J. and Laurie E. O’Sullivan, appealed a decision of the Superior Court which upheld a December 2017 decision of the Town of North Hampton’s zoning board of adjustment to grant a special exception to Aquarion Water Company. Plaintiffs, who participated in the ZBA proceedings from the outset, contended that the trial court erred when it determined that plaintiffs failed to seek recusal of the ZBA chair at the earliest possible opportunity. The plaintiffs further claimed that the ZBA chair was biased against them because he had worked as a “licensed general appraiser, consultant and expert for many electric public utility companies in tax abatement matters throughout New Hampshire and New England,” and because he had previously worked on tax abatement matters for Public Service Company of New Hampshire (PSNH), the predecessor of the company that owned Aquarion. In response, the Town argued that the chair’s “business of providing appraisals of hydroelectric utility facilities to electric utility companies,” in addition to providing appraisals to “a number of municipalities, corporations and banks,” did not create “a conflict of interest in a land use application to consolidate water treatment operations under one roof.”

The record reflected that the plaintiffs did not raise the issue of the ZBA chair’s alleged bias until they filed their request for a rehearing. The court agreed with the trial court that by so doing, the plaintiffs failed to raise the bias issue at the earliest possible time. Despite the fact the plaintiffs contended that they did not discover this information until after the ZBA granted the special exception, there was no evidence that the plaintiffs or their attorneys could not have discovered it before then, as the information upon which the plaintiffs relied on in their argument that the ZBA chair was biased was all publicly available.

The plaintiffs next claimed that the ZBA chair had a duty to disclose publicly his “35 year professional history in the public utility industry,” As the trial court found, however, there was no evidence that the ZBA chair had any direct involvement in this particular project, or that granting Aquarion a special exception would impact his future business dealings with Aquarion’s parent company.

The plaintiffs also contended that the trial court erred by upholding the ZBA’s reliance upon the opinion of Aquarion’s expert that the value of surrounding property would not be diminished by the construction of the water treatment plant. The record reflected that Aquarion’s expert opined that the surrounding properties would not suffer a diminution in value because the proposed water treatment facility “is not inconsistent with the property’s long-time use.” This opinion was shared by members of the ZBA, based upon their own knowledge, experience, and observations. As such, the court found no error in the trial court’s determination that the ZBA could properly rely upon the opinion of Aquarion’s expert that the property values of surrounding properties would not be diminished because of the proposed water treatment plant.

Finally, the plaintiffs claimed that the trial court erred by not considering information they submitted, for the first time, with their motion for reconsideration. Specifically, the plaintiffs appended to their motion records from the New Hampshire Department of Environmental Services (“DES”) regarding the water treatment chemicals that Aquarion used. The trial court declined to consider that evidence since the plaintiffs could have submitted it to the ZBA at the hearing on the special exception, but did not do so. The court found that the trial court was within its discretion not to consider information that could have been, but was not, presented to the ZBA.  The trial court’s holding was therefore affirmed.

Jeremiah J. O’Sullivan & a. v. Town of North Hampton, 2019 WL 2375381 (NH 5/3/2019)

This post was authored by Amy Lavine, Esq.

A New York appellate court ruled in May that a lawsuit challenging the approval of a mixed-use development was properly dismissed where the petitioners failed to complete service within 15 days after the statute of limitations expired, as required by state law. The court also declined to grant the petitioners’ request for an extension and held that their claims would have failed on the merits even if the petition had been properly served.

In New York, proceedings to challenge administrative decisions must be commenced within four months after the determination at issue becomes final and binding. In this case, the petitioners challenged the city’s final determination of environmental impacts under the State Environmental Quality Review Act, so the four month time period began to run on December 16, 2015, when the city issued its final approval. As a result, the petition was timely when it was filed on April 15, 2016, a day before the four month time period ended. But while the petitioners had complied with the filing deadline, they nevertheless failed to comply with an additional deadline that required service of the petition to be made within 15 days after the the statute of limitations expired. Service was required under this deadline by May 2, 2016, but the undisputed evidence showed that service on the respondents wasn’t completed until various dates between May 13, 2016, and May 23, 2016.

The petitioners first claimed on appeal that the four month statute of limitations actually began when the Brooklyn Borough Board approved the project on March 1, 2016, and not on the earlier date when the city issued its final approval. The court did not agree with this argument, however, because the borough’s approval had nothing to do with the project’s environmental review and had “no impact on the environmental decisions that aggrieve [the] petitioners.”

The court also declined to grant an extension of time for the completion of service, as requested by the petitioners, because there was no evidence that they had even attempted to complete timely service and thus there was no good cause for an extension. Moreover, even if the petitioners could have demonstrated good cause, the court explained that it still would have dismissed the case on the merits. As the court explained, the record established that the city fulfilled its obligations under SEQRA to identify the relevant areas of environmental concern and take a hard look at the project’s adverse environmental impacts. The court found no basis to disturb the city’s approval under the arbitrary and capricious standard of review applied under SEQRA, and the petitioners’ claims were therefore properly dismissed.

Matter of Rimler v City of New York, 2019 NY Slip Op 03599 (2d Dept. 5/8/19).