This post was authored by Matthew Loeser, Esq,

In 2010, Raley Miller sought to have a piece of property annexed by the Village of Marvin.  David Miller was the contact for Raley Miller during these negotiations with the Village of Marvin. However, several of these conversations between Miller and representatives of the Planning Board “became highly contentious.” The Village of Marvin Council eventually denied Raley Miller’s annexation application, which Miller reinitiated in 2014 with his partners David Miller, Larry Raley, and Kenneth Orndorff. Shkut personally provided some negative feedback regarding the Application, so Raley Miller and RTS Investors sent a letter via counsel to the Village of Marvin demanded Shkut “recuse herself from the Planning Board’s activities and not engage further in any manner in this rezoning application, whether as a member of the Planning Board or otherwise.” After consideration of the Application, the Planning Board voted unanimously to recommend that the Council deny the Application.

After withdrawing the Application, Orndorff began making “repeated and constant public record requests, seeking audio recordings of all Village of Marvin Planning Board meetings.” Orndorff used these recordings to write lengthy commentaries contained false statements about Shkut, which he would then distribute to the Planning Board, Village of Marvin staff, and Village of Marvin residents. Additionally, after being heckled and ridiculed by Orndorff, Shkut subsequently quit her job as Interim Planner. When the Village of Marvin Council voted to reappoint Shkut as a member of the Planning Board, Orndorff brought suit against Shkut and the Village of Marvin. Shkut then filed a First Amended Counterclaim and Third-Party Complaint alleging six different causes of action.

Shkut first contended that Movants’ political allies shared the complaint filed against her publicly in an attempt to gain an advantage over her in the Village of Marvin local elections. The Court found that Shkut failed to allege that Movants utilized the legal process to gain an advantage in a collateral matter. As such, the Court found that Movants’ smear campaign did not constitute abuse of process. Additionally, the Amended Counterclaim and Third-Party Complaint failed to specify how the fragmented quotes that were listed constituted defamation.

Shkut next alleged that Movants acted in an extreme and outrageous manner by repeatedly attending the meetings of the Planning Board while none of the Movants had business before the Planning Board. While attending these meetings, Shkut alleged that the Movants targeted Shkut for insults, video recorded her, publicly defamed, and embarrassed Shkut. However, the court found that while these actions may be described as annoying, they failed to compare to the actions described above that the North Carolina Court of Appeals held were not extreme or outrageous. Accordingly the Court held that these actions did not rise to the level of extreme and outrageous under North Carolina law. Moreover, the different instances of stalking argued by Shkut only amounted to one indictable offense for purposes of the RICO statute-one count of stalking. Thus, Shkut failed to allege the pattern of racketeering activity as required by the RICO statute.  As, all of Shkut’s underlying substantive claims had been dismissed, she could not sustain a cause of action for civil conspiracy.

Orndorff v Raley, 2018 WL 5284040 (W.D. NC 10/24/2018)

This post was authored by Matthew Loeser, Esq.

Whistle Stop purchased 142 acres of property in the Town of Thompson Station to develop a residential subdivision. In October 2013, the Town’s Planning Commission approved the preliminary plat for Phase I of the Development and the 46 lots in Phase I to the Town’s Heritage Commons wastewater treatment facility. Whistle Stop then paid for sewer tap fees for Phase I, capacity allocation fees for all the Development, and a preliminary plat fee.  The Town later issued Whistle Stop a grading permit for Phase I, and the Tennessee Department of Environment and Conservation Division of Water Pollution Control (“TDEC”) approved Phase I for construction.  In July 2014, Town staff informed Whistle Stop that approvals for the Development were improperly issued and that it needed to obtain Town approval for a revised plan. The Town Administrator, Joe Cosentini, then told Whistle Stop that the Board would have to reconsider the original request for sewer connection, which the Planning Commission had approved rather than the Board. At its February 10, 2015 meeting, the Board revoked approval for the 46 taps in Phase I of the Development and stated that it wanted to “start all over from the top on Whistle Stop.” Whistle Stop thereafter filed a Petition for a Writ of Certiorari and Writ of Supersedeas asserting that the Board lacked authority or exceeded its jurisdiction in revoking the Development’s approvals.

The Town contended that the claims arising prior to November 2015 should be dismissed because they were time-barred. Specifically, the Town argued that the statute of limitations commenced running on the date of each Board action and therefore any claims arising out of Board actions in February, September, and October 2015 were time-barred because Whistle Stop filed its action on November 18, 2016. Whistle Stop alleged that it was not alerted that it needed to act to protect its rights until the Board’s September 13, 2016 meeting in which the Board denied the use of the SABRE SBR system that it previously approved, even though it required Whistle Stop to pursue the system and TDEC approved it. As the court found that Whistle Stop knew or had reason to know of its alleged injuries when the denials occurred, any claims that were based on the Town’s denials of approval before November 18, 2015 were time-barred.

The Town next argued that the Board never granted Whistle Stop the right to develop its property using a SABRE SBR system. Here, the record reflected that the Board voted at its October 13, 2015 meeting to allow the SABRE SBR wastewater system for the Whistle Stop subdivision. While Whistle Stop also alleged that the Board denied its use of the SABRE SBR system that it previously approved, the Board made a motion at its September 2016 meeting, which was unanimously approved, to direct Whistle Stop to select an alternative SBR system. Accordingly, to the extent Whistle Stop’s substantive due process claim relied on due process violations occurring on or after November 18, 2015, the motion to dismiss was denied.

Finally, as to its class of one claim, Whistle Stop contended that it plausibly alleged that Bridgemore Village, Williamson County Schools (“WCS”), and Two Farms were similarly situated comparators.Although Whistle Stop alleged that Bridgemore Village, WCS, and Whistle Stop were all developments in the Town occurring around the same time and involved with the Board for sewage related issues, there were no additional factual allegations detailing why these entities are identical in all relevant respects or directly comparable in all material respects. Accordingly, Whistle Stop’s equal protection claim was dismissed with prejudice.

Whistle Stop Farms, LLC v Town of Thompson Station, 2018 WL 5313340 (MD TN 10/26/2018)

This post was authored by Matthew Loeser, Esq.

The City of Detroit appealed the circuit court order affirming the decision of the City of Detroit Board of Zoning Appeals (“BZA”) to grant a use variance to International Outdoor Inc. (“IO”) for the erection of a billboard. On appeal, the City alleged the BZA did not have the authority to grant a use variance in an area of Detroit designated as the Grand Boulevard overlay zone, which banned off-site advertising signs. The City further contended that even if the BZA did have the authority, IO could not prove the ordinance imposed an unnecessary hardship because it purchased the property with knowledge that the ordinance banned off-site advertising signs.

At the outset, the court reviewed whether the BZA was authorized to grant a hardship variance within the overlay zone. The applicable statute, Detroit Zoning Code, § 61-4-127, provided “additional forms of relief” for hardship relief petitions, which expressly granted the BZA power to “adopt any legally available incentive or measure that is reasonably necessary to offset any denial of reasonable economic use,” including “allowing the establishment of a prohibited use, provided that the petitioner demonstrate none of the permitted or Conditional Uses in the zoning district is economically feasible.” Here, the city council expressly authorized the BZA to grant any request based on hardship in order to effectuate the use of land in a manner that promotes and protects the public health, safety, and general welfare.

On appeal, the parties did not dispute the BZA’s findings as to the first three elements of the hardship test: the property could not reasonably be used in a manner consistent with existing zoning; the landowner’s plight was due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning; a use authorized by the variance would not alter the essential character of a locality. As to the last factor, however, the City claimed that IO created the hardship at issue by purchasing the property with the knowledge that off-site advertising signs were prohibited there. Here, the only reference to the parcel’s history suggested that it had the same unique shape and size since well before the 1999 ordinance was enacted. Additionally, there was no evidence that the property owner or the predecessor in title took actions after the enactment of the overlay zone that in some way physically altered the land so as to render it unfit for the use for which it is zoned. Accordingly, the court held that the BZA did not abuse its discretion when it concluded the self-imposed hardship rule was inapplicable under these circumstances and granted the variance.

City of Detroit v City of Detroit Zoning Board of Appeasls, 2018 WL 5276473 (MI App. 10/23/2018)

This post was authored by Matthew Loeser, Esq.

Defendant owned real property in the Village of Sharon Springs, Schoharie County. Plaintiff became aware that defendant was operating a secondhand retail operation on the property in violation of the Village of Sharon Springs Zoning Law and that conditions on the property violated the property maintenance provisions of the New York State Uniform Fire Prevention and Building Code. After Defendant failed to remedy these violations, plaintiff commenced this action seeking injunctive relief directing defendant to correct the problems, as well as the assessment of civil penalties, costs and disbursements against him. Plaintiff moved for summary judgment, and despite receiving no opposition to its motion, the Supreme Court of New York denied the motion and dismissed the complaint, finding it “impossible” to discern a cause of action in that pleading.

On appeal, the court found that plaintiff established the material facts through an affidavit by its Code and Zoning Enforcement Officer, who detailed the zoning and building code violations found on defendant’s property and averred that defendant had not remedied them after being served with orders to do so. The statements in the affidavit were corroborated by documentary and photographic evidence, and defendant submitted no opposition that might have raised material questions of fact. Thus, the evidence in the record substantiated plaintiff’s entitlement to the relief sought, which was narrowed in its notice of motion for summary judgment and there was no indication that defendant was prejudiced by the failure to identify the statutes authorizing it sooner. Accordingly, the court granted plaintiff’s motion for summary judgment and remitted the case so that Supreme Court could fashion an appropriate remedial order.

Village of Sharon Springs v Barr, 2018 WL 5046723 (NYAD 3 Dept. 10/18/2018)

This post was authored by Matthew Loeser, Esq.

The Foleys were commercial toucan farmers who attempted to run their business out of their home in Orange County. After a neighbor complained, Orange County Code Enforcement investigated and determined that the Foleys were violating the Orange County Code. Following a public hearing, the Board of Zoning Adjustment (“BZA”) found that the Foleys were in violation of the Code and the Board of County Commissioners (“BCC”) affirmed that decision. After exhausting their administrative remedies, the Foleys filed a complaint in the U.S. District Court for the Middle District of Florida against Orange County, various county employees, and the members of the BZA and BCC in both their individual and official capacities, raising federal and state claims. The district court determined that the County was entitled to summary judgment on all of the Foleys’ federal claims, but that the Foleys were entitled to summary judgment on their state law claims because the relevant Code provisions were void.

The Eleventh Circuit affirmed in part and reversed in part, holding that the Foleys’ federal claims were frivolous and that the district court lacked subject matter jurisdiction to adjudicate the state law claims, and the district court dismissed the case on remand. Within thirty days of the dismissal, the Foleys initiated a state court action against the County and the Official and Employee Defendants. The Official and Employee Defendants filed motions to dismiss, alleging that Florida’s statute of limitations barred the action.

On appeal, the Official and Employee Defendants contended that the Foleys’ cause of action accrued on February 18, 2008, that all of the claims were governed by the four-year statute of limitations in section 95.11(3), and that the Foleys filed their federal lawsuit within the limitations period. Defendants asserted, however, that section 1367(d) did not toll the limitations period while the federal action was pending because the Eleventh Circuit concluded that the federal district court lacked original jurisdiction. The court foundSection 1367(d) provided for a tolling of state law limitations on any state law claim asserted in federal court under section 1367(a). The only requirements were that the claim be asserted under section 1367(a). Accordingly, the court held that section 1367(d) applied, as its text did not require a successful assertion of federal jurisdiction. As such, since the Foleys brought their state court claims within thirty days of the dismissal of their federal case, the trial court erred in finding that the statute of limitations barred their action.

Foley v Azam, 2018 WL 5090837 (FL App. 5^th Dist. 10/19/2018)

This post was authored by Matthew Loeser, Esq.

In February 2015, Tucker purchased a vacant lot on her neighborhood block through Chicago’s “Large Lot Program” and intended to convert it into a community garden. Defendant Sonya Campbell, an inspector for Chicago’s Department of Streets and Sanitation, inspected Tucker’s property and concluded its vegetation violated the city’s yard weed ordinance. Six months later, another city employee served Tucker with a citation for the alleged violation. The administrative law judge ruled in favor of the city and imposed a $640 fine against Tucker. While Tucker could have appealed the fine to the Circuit Court of Cook County, she instead paid it “under protest.” That same day, she filed this putative class action, alleging 42 U.S.C. § 1983 claims against Campbell and the city, as well as a “failure-to-train” claim against the city. The district court dismissed Tucker’s original complaint, as well as her amended complaint.

As to the due process claim, Tucker did not dispute that she received a hearing, in which she was represented by counsel, presented evidence in her defense, and made legal arguments. At the hearing the administrative law judge considered the parties’ evidence, adjudicated the city’s allegation, and imposed a fine. Tucker claimed the city’s delay caused her prejudice in that she was unable “to make any measurements of the average height of the vegetation on her lot at or near the time of inspection” or to use “photographs taken contemporaneously with the date of the alleged violation.” The court noted that while the delay in this case was six months, it was still considerably shorter than prosecutorial delays accepted in other contexts. Additionally, the interest at stake here was monetary, which was less significant than one’s liberty interest in a criminal prosecution, or even property interest in continued employment.

Tucker next contended that the defendants maintained a policy of misinterpreting the city’s yard weed ordinance. Specifically, Tucker claimed the city incorrectly asked its inspectors to determine only whether some weeds exceeded ten inches, while the plain text of the ordinance required that “the average height” of the offending weeds exceeded ten inches. However, even assuming Tucker was right that the city’s interpretation of its ordinance was incorrect, federal due process protection was not a guarantee that state governments would apply their own laws accurately. Moreover, if Tucker believed the administrative law judge’s interpretation of the ordinance was legally incorrect, she could have appealed her fine to Illinois’s state courts. As Tucker’s amended complaint made no attempt to establish the inadequacy of that avenue of redress its dismissal was affirmed.

Tucker v City of Chicago, 2018 WL 5095151 (7^th Cir. CA 10/19/2018)

This post was authored by Matthew Loeser, Esq.

Morris owns residential and commercial properties in Orleans Parish. On November 4, 2017, Morris commissioned a local artist to paint a mural on a commercial property he owned. The mural quoted a comment made by President Donald Trump, recorded in a 2005 “Access Hollywood” segment; the mural replaced, with pictograms, two vulgar words used by Trump. After a local news outlet publicized a story about the mural, Jennifer Cecil, the purported director of the City’s “One Stop for Permits and Licenses,” wrote that an inspection of the property on November 8, 2017 revealed a violation of Section 12.2.4(8) of the Comprehensive Zoning Ordinance, which concerned “Prohibited Signs —Historic District.” Fearing prosecution, Morris sued the City, alleging that the murals-permit scheme violated his First and Fourteenth Amendment rights. Morris filed an opposition to the resulting motion to dismiss on June 19, 2018, and the City was granted leave to file a reply on June 27, 2018. On August 2, 2018, the City was granted leave to file a supplemental memorandum in support of its motion to dismiss, and Morris moved to strike the City’s supplemental memorandum under Federal Rule of Civil Procedure 12(f)(2).

As a threshold matter, the court reviewed Morris’ motion to strike the City’s supplemental memorandum in support of its motion to dismiss. The court found this challenged pleading contained extraneous allegations regarding Morris’ purported violation of his “agreement” with the City. As the court could only rely on factual allegations contained within the plaintiff’s complaint when deciding a Rule 12(b)(6) motion to dismiss, the plaintiff’s motion to strike the City’s supplemental memorandum was granted.

In its motion to dismiss, the City contended that the plaintiff lacked standing because he failed to establish that he suffered an injury-in-fact. The City submitted that the plaintiff had not paid any “fees,” did not even apply for a permit, and would not have to take down his murals or pay a fine for failing to do so, in light of the City’s pledge to stay enforcement against his murals during the pendency of this lawsuit. The court found that the City’s pledge to stay enforcement of the permit scheme against the plaintiff’s murals during the pendency of this lawsuit only rendered moot his request for preliminary injunctive relief. Since Morris sought to redress the threatened enforcement of an allegedly unconstitutional law, he was found to have standing.

Next, because applicants were required to submit a general drawing of their proposal mural for “development plan and design review approval,” it could not reasonably be said that City officials did not consider content when determining whether to approve or deny a permit. As such, the court found that the plaintiff has plausibly alleged that the murals permit application process constituted a content-based regulation of speech, which implicated strict scrutiny. Morris further argued that the regulation was not narrowly tailored because it was over inclusive, as it applied throughout the City and was not limited to historically designated homes or neighborhoods. Finally, the plaintiff argued that the City could protect its interests through less restrictive means, such as by citing property owners with zoning violations after they occurred, rather than engaging in advanced review coupled with extensive paperwork and submission requirements. Accordingly, the court held that the plaintiff pleaded a claim that § 21.6.V was an unconstitutional content-based regulation of speech.

Finally, while the plaintiff had pled that he was perhaps treated differently from  two non-permit holders, but failed to plead that such differential treatment was “intentional.” Specifically, the plaintiff failed to allege that the City’s decision to cite him for not having obtained a murals permit, as required by the CZO, was “irrational and wholly arbitrary.” Since the “intent” requirement is crucial to successfully pleading this claim, the court held plaintiff had not stated a “class of one” Equal Protection claim under the Fourteenth Amendment.

Morris v City of New Orleans, 2018 WL 5084890 (ED LA 10/18/2018)

This post was authored by Matthew Loeser, Esq.

This case arose out of petitioner’s development of Chestnut Ridge, a 396–unit townhouse complex in the Village of Bloomingburg, Sullivan County. As construction on Chestnut Ridge continued, documents about petitioner’s development plans became public during the course of federal litigation. These documents indicated that petitioner intended to market Chestnut Ridge, which it referred to as phase one of a more expansive project to families having, on average, eight children each. The Town Planning Board issued a notice stating that it intended to consider rescinding petitioner’s 2010 subdivision and site plan approval. The Town Planning Board then rescinded petitioner’s 2010 subdivision and site plan approval for Chestnut Ridge, except with respect to any dwelling units that were “completely constructed or to the roadways and other infrastructure required to service those dwelling units.”

Petitioner thereafter commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking an order annulling the Town Planning Board’s rescission of petitioner’s subdivision and site plan approvals, declaring that such approvals remained in effect and that petitioner had a constitutional vested right to complete Chestnut Ridge, and enjoining the Town from exercising authority over the development. The trial court partially granted the petition/complaint by annulling that portion of the Town Planning Board’s determination as prohibited the future issuance of building permits and certificates of occupancy in connection with Chestnut Ridge, and otherwise dismissed the petition/complaint.

On appeal, all parties acknowledged that the Village Planning Board had since granted an application by petitioner to reaffirm the subdivision and site plan approvals that had been rescinded by the Town Planning Board. As petitioner’s rights were no longer “actually controverted” and a determination of this appeal would not affect the rights of the parties, the appeal was dismissed as moot.

Sullivan Farms II, Inc. v Town of Mamakating Planning Board, 2018 WL 5046699 (NYAD 3 Dept 10/18/2018)

This post was authored by Matthew Loeser, Esq.

This case arose from related civil actions involving alleged violations of Jefferson County zoning ordinances based on the presence of four miniature goats and two geese on property owned by Joshua Pernat and Sara Manzke. In the first civil action, plaintiff Sara Manzke brought claims under the Fair Housing Amendments Act and Wisconsin’s Open Housing Law, contending that defendants Jefferson County and Town of Ixonia discriminated against her because of her disability when they denied her applications for a zoning variance and conditional use permit to accommodate her emotional support animals. In the second civil action, defendants Manzke and Pernat filed a notice of removal of a small claims action filed by plaintiff Jefferson County in the Circuit Court for Jefferson County, in which the county sought monetary sanctions for alleged violations of the zoning ordinance.

At the outset, the court noted that while plaintiff pointed out that two federal circuit courts of appeals have held that a violation under the Federal Housing Amendments Act occurs “when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings,” the Court of Appeals for the Seventh Circuit has not reached a similar conclusion.

Plaintiff contended that the “Town’s denial foretold a denial by the County,” and any further appeal to the county would have been futile since she had been informed by a member of the town planning commission and the town’s attorney that the Federal Housing Amendments Act did not apply to zoning laws. The court found that even though plaintiff was told by Matt Zangl in the county’s zoning department that the town’s refusal to recommend the variance was a “good indicator” of what the county would do, he was not the final decision maker and was not giving plaintiff a formal or advisory opinion. Additionally, the county had no obligation to follow the town’s recommendation. Finally, plaintiff might have been able to negotiate with the county or modify her request to satisfy both her needs and those of the county. Accordingly, the court held plaintiff’s Fair Housing Amendments Act accommodation claim was not ripe claim for review and had to be dismissed for lack of subject matter jurisdiction. As the court found that Manzke had not stated a federal claim, defendants Manzke and Pernat were unable to satisfy the prerequisites for removing the small claims action from state court.

Manzke v Jefferson County, 2018 WL 5095678 (WD WI 10/19/2018)

This post was authored by Matthew Loeser, Esq.

Under the Homeless Shelter Replacement Act of 2016, the Council authorized the Mayor to build new emergency homeless shelters at specified locations in seven of the city’s eight wards, including one fifty-family shelter on a large, city-owned tract on Idaho Avenue in Ward 3. Over some neighborhood opposition, the Board of Zoning Adjustment (“BZA”) granted zoning relief requested by the Department of General Services (“DGS”) to enable it to build the proposed Ward 3 shelter as the District Government envisioned it. In this case, petitioners, a group of area residents led by Neighbors for Responsive Government (“NRG”), challenged the Board’s decision to grant a special exception allowing the Ward 3 shelter to provide temporary housing for up to fifty homeless families, and an area variances allowing the shelter to share the lot with the Metropolitan Police Department’s Second District headquarters and to exceed height limitations in the residential zone.

The record reflected that, in reaching its decision, the BZA credited the testimony of DGS’s traffic expert and other witnesses and agreed with the conclusions of the OP and the District Department of Transportation (“DDOT”) that the proposed emergency shelter would not generate a significant demand for parking. Additionally, the garage would be located “very near” the shelter, “a considerable distance from any neighboring dwelling,” and would be shielded from the view of nearby residents by the police station and plantings creating a “green screen wall.” The BZA also found that the proposed Ward 3 shelter, which “will be the only such facility in the vicinity,” would not have an adverse impact on the neighborhood. The BZA further found that the proposed height and number of floors, configuration, and other “specific design elements” of the Ward 3 shelter were derived from the minimum legal requirements for residential units and support services embodied in the Homeless Services Reform Act and from the District’s “research and experience” based program goals of providing a safe, peaceful, and supportive living environment. Moreover, in light of the prolonged site selection process that led to the Council’s choice of the Idaho Avenue property for the Ward 3 shelter, the BZA concluded that DGS had shown there was no reasonable alternative to the proposed Ward 3 shelter that would meet the program needs of that area of the District.

NRG next alleged that regardless of how it was designed, a shelter large enough to provide emergency housing for as many as 185 occupants at a time was too large to be eligible for special exception approval.Here, however the requirements for special exception approval in the cited zoning regulations did not impose any per se limit on the maximum size of an emergency shelter in an RA-1 Zone. Additionally, the court found that the BZA’s authority in considering an application for zoning relief did not extend to second-guessing the Council’s legislative determination of the District’s needs and the appropriate measures to meet them. The record also reflected that the BZA found that strict application of the zoning regulations would result in unnecessarily burdensome practical difficulties for the District, and the variances would not be detrimental to the public good or the zone plan because the lot was large enough to accommodate the shelter and the police station along with the accessory uses without overcrowding or violation of applicable lot occupancy and floor area limits. Accordingly, the BZA concluded that DGS had satisfied the three requirements for the area variance relief it sought. As the decision as to what testimony should be credited and given the most weight was within the province of the BZA, its holding was affirmed.

Neighbors for Responsive Government, LLC v District of Columbia Board of Zoning Adjustment, 2018 WL 5068814 (DC CA 10/18/2018)