This post was authored by Touro Law student Thomas Brown ‘20

In the Township of Duluth, property owners applied for a zoning variance so that they could build a home on a piece of land that was too small under existing codes to build on. The Township granted the variance, and neighboring landowners sought judicial review. The zoning applicants incurred construction expenses soon after their variance application was approved.

Plaintiffs served the Township, and the Township argued that the Minnesota Rules of Civil Procedure, R. 19, required plaintiffs to join the original zoning-variance applicants in the suit as well, even though this was not required by statute. The District Court agreed and dismissed the suit.

On appeal, the Court of Appeals of Minnesota quoted from Rule 19.01 of the Minn. Rules of Civ. Proc., which states, in part, that:

A person who is subject to service of process shall be joined as a party in the action if…the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may … as a practical matter impair or impede the person’s ability to protect that interest.

Because the outcome of the lawsuit would determine whether the variance applicants would be allowed to continue their home-construction project, the Court of Appeals decided they had a clear financial interest in the suit. The Court therefore agreed with the District Court that the applicants were a necessary and indispensable party and affirmed the District Court’s dismissal of the suit.

The Court noted that “at least four” other states had also considered variance applicants to be necessary parties in similar cases.

Schulz v. Town of Duluth, 2019 WL 510023 (Minn. Ct. App. Feb. 11, 2019)

Editor’s Note: This summary was first published in the USDOJ’s February 2019 issue of Religious Freedom in Focus, available here: https://www.justice.gov/crt/religious-freedom-focus-volume-78-february2019#rluipa

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

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

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

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

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

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

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

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

Editor’s note: This summary was originally published in the USDOJ’s February 2019 Religious Freedom in Focus newsletter available here: https://www.justice.gov/crt/religious-freedom-focus-volume-78-february2019#mosque

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

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

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

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

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

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

This post was authored by Amy Lavine, Esq.

A nonconforming gas station that was closed for more than a year due to a tanker truck accident and gasoline spill was allowed to reestablish its nonconforming use under a New York appellate court ruling issued in February. The zoning board found, and the court agreed, that the gas station’s remediation work was sufficient to prevent its nonconforming use from being “discontinued.”

Leemilt’s Petroleum, Inc. operated a nonconforming gas station and convenience store in the Town of LaGrange. In June 2013, the gas station was forced to shut down after a fuel truck ran into a light pole and spilled about 3,000 gallons of gasoline on the property. It promptly began remediation and restoration efforts, but due to complications with its underground storage tanks the gas station was unable to reopen until sometime after October 2014.

When the gas station applied for permits to reopen, the town building inspector decided in September 2015 that it was eligible to continue its nonconforming use of the property under the zoning code’s allowance for rebuilding after casualties, and it granted the gas station a year from the date of its request to reestablish operations. The owner of a Dunkin Donuts franchise located across the street then appealed the building inspector’s decision to the zoning board, arguing that the gas station’s nonconforming use had been discontinued and couldn’t be reestablished.

The zoning board affirmed the building inspector’s decision and the court agreed on appeal that the claims opposing reestablishment of the nonconforming use were properly dismissed. While it was true that the zoning code required the termination of nonconforming uses after a one-year period of discontinuance, the gas station’s remediation work was sufficient to show that its nonconforming use was never discontinued. As the court emphasized in reaching this conclusion, there’s “more to maintaining a gasoline filling station than pumping gas.”

 

New York HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, 169 A.D.3d 678 (2/6/19).

This post was authored by Amy Lavine, Esq. 

A New York appellate court held in February that a property owner wasn’t entitled to just compensation for consequential damages resulting from the condemnation of a neighbor’s parcels.

The State of New York appropriated two parcels of land from the claimant in 2012 for the construction of a drainage recharge basin, as well as a temporary easement over two other parcels. The claimant then sought just compensation for the taking of its properties, as well as seeking consequential damages for the alleged decrease in value of its remaining properties that had been caused by the state’s construction on neighboring parcels.

While consequential damages are available for the diminution in value of a claimant’s property following a partial taking, the court explained that consequential damages are limited to adverse property impacts caused by the condemnor’s use of the taken property and do not include any damages arising from the taking of a neighbor’s land. The claimant in this case had no interest in the neighboring parcels, and the court therefore affirmed the determination that any damage resulting from the condemnation of those parcels was not compensable.

RA Three RDS, LLC v State of New York, 169 A.D.3d 731 (2d Dept. 2/6/19).

This post was authored by Touro Law student Thomas Brown ‘20

Plaintiffs William and Kara Raynor owned a parcel of land in a historic district in Chapel Hill containing a small cottage that they wished to demolish and replace with a new single-family home. In order to do this they needed to obtain a Certificate of Appropriateness from Chapel Hill’s Historic District Commission (HDC).

After a series of denials and changes to their application, the Raynors appealed to the town Board of Adjustment, which ordered that the HDC accept the application. However, the HDC continued to delay and avoid obeying the Board’s order. The Raynors sued the Town and the HDC in state court under claims of federal substantive due process, procedural due process, equal protection and state constitutional claims. The defendants timely removed to the Middle District of North Carolina and made a motion to dismiss under quasi-judicial and qualified immunity.

Regarding substantive due process, the court acknowledged the plaintiffs’ allegations that the Commission “caus[ed] Plaintiffs to engage in numerous and inconsistent redesigns, rais[ed] new objections throughout the process with differing reasons, conduct[ed] undisclosed private meetings, [had] conflicts or animus toward Plaintiffs, seat[ed] some members who were not qualified to serve by virtue of interest, experience or education, and bas[ed] its decisions on considerations not provided for in the Town’s Land Use Ordinances.” However, the court decided that those actions were not outside the “broad limits” of government action and were within the state’s traditional regulatory powers. They did not “shock the conscience” and could be rectified by state remedies.

Concerning the equal protection claim, the court again emphasized the local nature of land use decisions. Plaintiffs alleged that they had been treated differently from other residents with home designs similar to the one they proposed, but the court stated that “Where rational distinctions are reasonably conceivable, ‘even if they were not the real reasons for treating [Plaintiffs] differently[,] … that is the end of our inquiry.’”

After dismissing the federal due process and equal protection claims, the court remanded the state constitutional claims to the state court.

Regarding defendants’ claims of quasi-judicial and qualified immunity, the court said that “These are potentially-applicable defenses that would require further analysis and consideration,” but the court did not have to reach them after the failure of the federal claims.The court concluded by stating that “‘[t]his case is a garden-variety zoning dispute recast in constitutional terms’” (quoting Siena Corp. v. Mayor and City Council of Rockville, Md., 873 F.3d 456, 466) and granted defendants’ motion to dismiss the federal claims.

Raynor v. Town of Chapel Hill, 2019 WL 503443 (M.D.N.C. Feb. 8, 2019).

This post was authored by Amy Lavine, Esq.

A New York appellate court held in November 2018 that weddings were properly approved as an accessory use to a bed and breakfast located in a residential zoning district.

As the court recounted, the bed and breakfast had offered just one guest room when it was originally granted site plan approval in 1998, but since that time it had added two more rooms and began offering its facilities for wedding events. The property’s use as a wedding venue eventually grew to 12 events in 2015, with each event including tents, music, and food service, and the neighbors testified that each event caused several days of disruptions. As a result of this increased intensity, the zoning board determined in 2015 that site plan approval was required for wedding events to continue on the property as an accessory use. Following such a review, the bed and breakfast was granted permission to hold four wedding events per year with up to 75 guests and each event.

The court first found that it was neither unreasonable nor irrational for the zoning board to determine that the bed and breakfast was a permitted use. The property was located in the residential/rural-3A district, which permitted “tourist homes” and “boardinghouses,” and while the zoning code didn’t include a specific classification for “bed and breakfasts,” the zoning board had concluded that bed and breakfasts were commonly permitted in the residential/rural-3A district. The court also noted that bed and breakfasts were “certainly embraced” within the classifications for “tourist homes” and “boardinghouses,” even if they didn’t fall squarely within the definitions for these uses.

With respect to the challenged use of the property for wedding events, the court explained that accessory uses were defined in the town code as uses “customarily incidental and subordinate to the principal use of a lot… or a building, and located on the same lot… therewith.” The record showed that the owners of the bed and breakfast resided on the property and rented guestrooms on a year-round basis, but only offered the property as a wedding venue during warmer weather months. The court found that this evidence provided a sufficient basis for the zoning board’s determination that weddings were an allowable accessory use to the principal use of the property as an owner-occupied bed and breakfast.

The court also agreed with the zoning board that it had the authority to require site plan approval for the bed and breakfast’s accessory wedding use. As the court noted, the town code required site plan review for all principal uses, and this requirement “necessarily should attend to an approved accessory use.” The zoning board also had an obligation under the town code to impose “conditions and safeguards as may be required to protect the public health, safety, morals and general welfare,” and so it was reasonable to require a site plan, even if the bed and breakfast had originally been approved without conditions.

 

. Brophy v. Town of Olive Zoning Board of Appeals, 166 A.D.3d 1123 (NY App. Div. 3d Dept. 11/1/18).

This post was authored by Matthew Loeser, Esq.

 

Petitioners Ben and Diane Goldstein sued Respondents Peacemaker National Training Center, LLC, and its related entity, Peacemaker Properties, LLC, for nuisance in 2015. The Petitioners owned land in Frederick County, Virginia, and claimed that noise from Respondents’ nearby shooting ranges substantially and unreasonably interfered with their use and enjoyment of their rural property. In 2017, the West Virginia Legislature amended West Virginia Code § 61-6-23 (2014) to bar nuisance claims against a shooting range if the shooting range was in compliance with local noise ordinances. The Legislature specified that the amendment applied retroactively. As a result, the circuit court concluded that Petitioners’ nuisance claim was retroactively barred, granted Respondents summary judgment, and dismissed Petitioners’ suit.

At the outset, the court noted that since Berkeley County chose not to impose noise limitations upon shooting ranges like Respondents’, as a matter of law Respondents could not have violated those same local noise ordinances. Consequently, the circuit court did not err by finding that § 61-6-23(e)(1) applied to bar Plaintiff’s claim for injunctive relief.

Petitioners next challenged the circuit court’s retroactive application of the 2017 Amendment to dismiss their entire nuisance claim against Respondents. Specifically, they contended that their verified complaint against Respondents included a claim for money damages, which was a vested property right that the Legislature could not eliminate by retroactive legislation. In their verified complaint, Petitioners demanded “monetary damages for the cost of implementing reasonable and necessary noise abatement measures on their own property to comply with these guidelines and any other damages permitted by West Virginia law and supported by the evidence.” Petitioners further demanded “any other damages permitted by West Virginia law and supported by the evidence” and “such other legal and equitable relief as the circuit court shall deem just and proper under the circumstances.” The court found that these demands evidently notified Respondents that Petitioners sought money damages as relief for the alleged nuisance conditions on Respondents’ property because the demands prompted Respondents to act. Accordingly, the court held that the circuit court erred by applying the 2017 Amendment to § 61-6-23 retroactively to dismiss Petitioners’ accrued nuisance claim for money damages.

Goldstein v. Peacemaker Properties, LLC, 825 S.E.2d 337 (WV App. 2019)

This post was authored by Matthew Loeser, Esq.

 

Petitioner purchased the subject property, a three-story apartment building located in St. Albans, at a foreclosure sale. In January 2016, the petitioner filed a property registration form with the respondent, New York City Department of Housing Preservation and Development, sued herein as NYC Department of Housing Preservation and Development (“HPD”). In February 2016, approximately one year after the petitioner purchased the property, HPD selected the property for participation in the Alternative Enforcement Program (“AEP”), a program designed to alleviate emergency conditions in distressed buildings by compelling compliance with the requirements of the New York City Housing Maintenance Code. The petitioner commenced this proceeding pursuant to CPLR article 78, to set aside certain fines, penalties, violations, and repair assessments generated by HPD, and to compel HPD to remove the subject property from the AEP. The Supreme Court granted those branches of the petition.

On appeal , the court found that the petitioner failed to timely pursue an available administrative remedy prior to seeking judicial intervention. While the petitioner argued that some of the violations and charges predated its acquisition of title and that its entry into possession was delayed due to obstruction by the prior owner, some of the violations and charges occurred after the petitioner purchased the building. Additionally, since HPD recorded its expenses in its building charge report that was publicly available online, and since the list of open violations was also available publicly online, the petitioner was on notice of the violations and charges on the property at the time it purchased the property. The court further found that the petitioner also could have filed its registration statement with HPD when it acquired the building, instead of waiting until it obtained possession, and could have timely objected to charges imposed after it acquired the building on the basis that it did not have access to the building. As such, the court held that petitioner did not exhaust available administrative remedies and failed to establish that an exception to the exhaustion of administrative remedies rule was applicable. Accordingly, the Supreme Court’s holding was reversed.

Bennett v. Zoning Board of Appeals of Village of Sagaponack, 170 A.D.3d 716 (2 Dept. 2019)

This post was authored by Amy Lavine, Esq.

In February, a Minnesota court reversed the misdemeanor conviction of a residential property owner who was charged with keeping chickens on her property in violation of the county development code. The court held that the citation and complaint were fatally defective because they failed to define any criminal offense or describe any criminal behavior applicable to the defendant’s property, and the district court therefore had no jurisdiction to order her conviction.

As the court explained on appeal, the first code section referenced in the complaint merely defined the term “residential parcel,” but it didn’t actually describe any crime or prohibited conducted, and thus it couldn’t provide the basis for charging the defendant with a misdemeanor for keeping chickens. And while the second code section referenced in the complaint did restrict the keeping of chickens on residential parcels, the defendant’s property was specifically excluded from the definition of a “residential parcel” because it was located in a legally platted subdivision, and the regulations on keeping chickens therefore didn’t apply.

Although not pressed on appeal, the court also mentioned the prosecutor’s trial argument, which was essentially that the keeping of chickens was prohibited even on legally platted subdivisions because it wasn’t a specifically permitted use. The court rejected this argument, emphasizing that the plain language contradicted this interpretation and remarking that “an ordinary citizen would not read this ordinance restricting the keeping of animals on residential parcels and conclude that its express exclusion of legally platted subdivisions is the equivalent of including them.” The most that could be inferred from the language of the ordinance, the court concluded, was that it didn’t apply to legally platted subdivisions.

State v. Thesing, 2019 WL 418624 (Minn. App. unpub. 2/4/19).