This post was authored by Matthew Loeser, Esq.

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

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

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

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

This post was authored by Matthew Loeser, Esq.

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

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

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

This post was authored by Matthew Loeser, Esq.

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

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

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

 

This post was authored by Matthew Loeser, Esq.

 

The petitioners were the owners and managers of real property that was adjacent to a 19.5-acre parcel that, since 1989, had been classified as a business and technology district (“BTD”). This zoning classification continued after respondent Village of Lansing first adopted a comprehensive plan in accordance with Village Law § 7–722 in 1999, and after the comprehensive plan was amended in 2015. In November 2016, the members of the Village of Lansing Board of Trustees adopted Local Law No. 3 of the Village of Lansing, which rezoned the subject property as a high density residential district (“HDRD”). Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge Local Law No. 3, arguing that it was adopted in violation of the State Environmental Quality Review Act (SEQRA); was not consistent with the comprehensive plan; and constituted illegal spot zoning. Respondents moved for summary judgment, and the Supreme Court of New York granted the motion and dismissed the complaint.

On appeal, the court found that prior to enacting Local Law No. 3, the Board, together with the Village Planning Board, held a number of meetings during which public comments were accepted. Furthermore, the Board considered materials submitted by the developers intending to construct a 140-unit apartment complex on the subject property, which included a traffic study, an engineering report and rental housing needs study. As such, the court rejected petitioners’ contention that Local Law No. 3 was enacted in violation of SEQRA.

The record also reflected that in completing the environmental assessment form (“EAF”) the Board concluded that the zoning change from commercial use to residential use, as a “down zoning request,” would not materially conflict with the Village’s comprehensive plan. Specifically, the Board reasoned that the zoning change was consistent with the Village’s commitment to controlled residential development and preserving the noncommercial character of residential districts. Following its review of the completed EAF, the Board issued a negative declaration, determining that the rezoning would not have a significant adverse environmental impact. Based on the reasons articulated by the Board, the court held that petitioners’ claim that respondents’ SEQRA review was deficient was contradicted by the record.

Next, the court found that the rezoning of the subject property from a BTD to an HDRD was not impermissible spot zoning, nor was Local Law No. 3 adopted in contravention of the comprehensive plan. Here, the record demonstrated that the subject property was directly adjacent to areas zoned for residential use and for commercial use. The Board noted that, consistent with the comprehensive plan, rezoning the subject property from a BTD to an HDRD would create a better transition between the two areas. Thus, the court found Local Law No. 3 was consistent with the Village’s comprehensive plan and was “calculated to benefit the community as a whole as opposed to benefitting individuals or a group of individuals” Accordingly, petitioners failed to demonstrate that the rezoning was arbitrary, unreasonable or unlawful. Thus, the judgment dismissing the complaint was affirmed.

Heights of Lansing, LLC v Village of Lansing, 2018 WL 1747777 (NYAD 3 Dept. 4/12/2018)

 

This post was authored by Matthew Loeser, Esq.

St. Thomas’ Episcopal Parish, a church in Dupont Circle, sought an area variance in order to build a combination church and residential building. The Board of Zoning Adjustment granted that variance. In this case, two neighborhood associations challenged the Board’s order, arguing that the Parish failed to meet the requirements for an area variance.

The Board found an exceptional condition based primarily on the presence of the Parish Hall, a contributing building to the historic district, and on the Parish’s 120–year history at the location and its need for “new and expanded facilities to accomplish its mission.” In reviewing the Board’s decision, the court found that the presence of a contributing structure was not sufficient to constitute an exceptional condition. Here, the presence of a contributing structure was thus less akin to the presence of a landmark building than to the property’s inclusion in a historic district, which did not qualify as an exceptional circumstance.

The Parish contended that, when a nonprofit or public service organization is the applicant, the court has applied a more flexible standard in finding exceptional conditions and has recognized the applicant’s need for a particular site as an exceptional condition regarding that site. This case was distinguishable, however, because the Board did not explicitly find that the Parish was a public service organization or that it had made the showings required in order to receive the additional flexibility owed to such organizations. Accordingly, the court vacated the Board’s decision and remanded the cast for consideration of whether the Parish was entitled to additional flexibility as a public service organization and whether the requested variance could be justified under that doctrine.

Dupont Circle Citizens Assoc. v District of Columbia Board of Zoning Adjustment, 2018 WL 1748313 (DC App 4/12/2018)

This post was authored by Matthew Loeser, Esq.

Montgomery County Board of Appeals granted an application for a conditional use filed by Brandywine Senior Living at Potomac, LLC. for a three-story residential care facility, to be built on property located in Potomac, Maryland. Neighbors Ronald A. Paul and Toni H. Paul, as well as the West Montgomery County Citizens Association (“WMCCA”), the Brickyard Coalition, and Curtis B. Uhre filed petitions for judicial review in the Circuit Court for Montgomery County. The circuit court affirmed in part and reversed in part the decision of the Board and remanded the case to the Board for further consideration.

On appeal, the Pauls asserted that the hearing examiner committed prejudicial legal error by inviting Brandywine to modify their application and file new plans to respond to issues raised by the opposition, the hearing examiner improperly aligned himself with Brandywine and thereby violated the Pauls’ rights to due process. The court noted, that although the Pauls challenged the hearing examiner’s impartiality on appeal, this issue was not raised before the hearing examiner. Instead, this allegation could have been raised through a motion for recusal. Furthermore, the court found that the Pauls were provided with notice of the amended application and a full opportunity to be heard. Accordingly, the Pauls were not deprived of procedural due process.

The Neighbors next challenged the hearing examiner’s findings and conclusions on the project’s conformance with the master plan and compatibility of the surrounding residential neighborhood, noise impacts of the project, adequacy of storm drainage for the project, and the project’s effect on the economic value of the Pauls’ property. Here, however, the record reflected that the hearing examiner properly considered the specific residential neighborhood surrounding the Property when considering whether the Project would be compatible with the neighborhood. The evidence before the hearing examiner indicated that the neighborhood included a wide range of non-residential uses, including services for the elderly, a restaurant, a school, and a golf course. As such, the court held that the hearing examiner’s findings with respect to neighborhood compatibility were supported by substantial evidence.

The record also reflected that the Neighbor’s expert land planner, James Noonan, “did not testify with regard to master plan conformity.” Conversely, the hearing examiner found that Brandywine’s land planner, Joshua Sloan found that the Project was in conformance with master plan recommendations. The hearing examiner also considered the testimony of Scott Harvey, Brandywine’s acoustical engineering expert. Mr. Harvey testified that, in his expert opinion, there would not be any significant adverse noise impacts and that all mechanical equipment could be designed to meet noise ordinance requirements. The hearing examiner also credited the testimony of Brandywine’s civil engineer, Donald Mitchell, who confirmed the existing drainage problem.

The Neighbors next contended that the hearing examiner erred by considering the presence of the tennis facility when evaluating undue harm to the economic value of the Pauls’ property, and by improperly conflated the economic value of the Pauls’ property with the fair market value of the Pauls’ property. The court noted that the effect of a proposed conditional use on a neighboring property’s value must be evaluated against the specific, actual current value of the property, not against a theoretical value based upon a hypothetical alternative for the proposed conditional use site. The court therefore found that the hearing examiner properly considered the effect of the Project on the economic value of the Pauls’ property, taking into consideration the existing tennis facility. Furthermore, the hearing examiner specifically explained that he was evaluating the effect on the Pauls’ property’s “economic value because that is the standard specified in Section 59–7.3.1.E.1.g of the Zoning Ordinance.” Accordingly, the court affirmed the opinion of the Montgomery County Board of Appeals and remanded the case to the circuit court for entry of an order affirming the actions of the Board.

 

Brandywine Senior Living at Potomac, LLC v Rand, 2018 WL 2018046 (MD 4/30/2018)

This post was authored by Matthew Loeser, Esq.

Plaintiff Thun owned 36 acres of property located on a steep hillside that slopes into the Puyallup River Valley. The slopes on this property varied from 20 percent to 40 percent or greater and posed a high landslide risk. In 2004, the Central Puget Sound Growth Management Hearings Board ordered the City to revise its zoning designations to comply with Washington’s Growth Management Act (“GMA”). The GMA required each city to adopt development regulations that provided open space areas between urban growth areas and that protect critical areas, including areas susceptible to erosion or sliding – such as Thun’s property. Thun entered into a purchase and sale agreement with a developer to construct a 575-unit condominium complex on his property, and the developer submitted an application to the City for a site development permit for the condominium complex. That same day, the City adopted Ordinance 1160, which rezoned all but roughly 5.5 acres of Thun’s property from C-2 to RC-5 residential/conservation. Under the new rezoning, Thun’s proposed development was not allowed because RC-5 zoning authorizes only one residential unit per five acres. The City subsequently denied the developer’s site development permit application. As a result, Thun filed a lawsuit against the City of Bonney Lake, alleging that the City’s adoption of an ordinance rezoning the majority of Thun’s property constituted an unconstitutional regulatory taking. The trial court granted the City’s motion for summary judgment dismissal of the case.

After a review of the record, the court found that the Ordinance was adopted in an effort to protect tree cover and manage steep areas that are prone to landslides and erosion, as well as to protect the entry to the City. Thus, the predominant goal of the Ordinance was to prevent a real public harm that was directly caused by the prohibited uses of Thun’s property. In restricting high density developments on the steep slopes of Thun’s property, the City would be better able to protect the public from the safety and environmental concern that landslides and erosion present. Accordingly, the court held that Thun failed to meet the threshold requirement of showing that the Ordinance went beyond preventing a real public harm to producing an affirmative public benefit. As such, Thun failed to establish a regulatory takings claim, and the court held the trial court did not err in granting summary judgment dismissal of Plaintiff’s claim.

Thun v City of Bonney Lake, 2018 WL 2055686 (WA App. 5/1/2018)

This post was authored by Matthew Loeser, Esq.
Plaintiff Enon Sand and Gravel owned, or had the option to purchase, several pieces of property in the unincorporated areas of Clark County. Plaintiff alleged that it, and its predecessors-in-title, had continuously used the property for surface mining, held it in reserve for future surface mining, and used it for incidental purposes necessary to surface mining. In this case, Plaintiff Enon Sand and Gravel, LLC, brought an action against Defendants Clark County Board of Commissioners and Clark County Zoning Administrator Thomas A. Hale “to protect its right to continue prior non-conforming uses of certain real property located in Clark County, Ohio.” Specifically, Plaintiff claimed that, because the Surface Mining Uses of the property predated the enactment of the Clark County Zoning Resolution (“CCZR”), they were prior non-conforming uses not subject to the CCZR.

The court first addressed Defendants contention that Plaintiff’s § 1983 claim should be dismissed because Plaintiff failed to alleged any facts showing that Defendants acted under the color of state law, that there was a final decision regarding Plaintiff’s property, and that Plaintiff has exhausted its available state remedies. The record reflected that in the letter from Allan Neimayer, Senior Planner at the Clark County Community and Economic Development, Neimayer claimed since Plaintiff’s application was for a “significant mining modification,” Plaintiff required a Conditional Use permit that had to be approved by the Clark County Board of Zoning Appeals (BZA). Here, the only action taken by Defendants was the letter notifying the Plaintiff that it was the County’s position that mining is not a legal nonconforming use of Plaintiff’s properties. The court found that Plaintiff did not allege in its Complaint facts plausibly showing there was no rational basis for Defendants’ determination or that Defendants arbitrarily and capriciously deprived it of its property interest. Accordingly, Plaintiff’s substantive due process claim failed.

Plaintiff next contended that it was not given prior notice or a pre-deprivation hearing, but only a conclusory letter disclaiming Plaintiff’s right to Surface Mining Uses as a prior, lawful non-conforming use without offering it an opportunity to respond or refute this conclusion. Here, Defendants’ argument failed to address Plaintiff’s right to a pre-deprivation hearing. Accordingly, the court found Plaintiff’s allegations were sufficient to state a procedural due process violation.

Lastly, the court determined that the adjacent landowner’s land value was not relevant to either sought-after remedy in this case. Here, Plaintiff sought a declaration that it had a valid prior non-conforming use and a finding that Defendants violated its right to procedural due process. Intervention in this case would therefore likely cause undue and unnecessary delay. Intervenor’s property-value deprivation claim would complicate the case by requiring evaluation of property value and depreciation. Accordingly, the court found the adjacent property owner’s Motion to Intervene lacked merit.

Enon Sand and Gravel, LLC v Clark County Board of Commissioners, 2018 WL 2041696 (SD OH 5/2/2018)

This post was authored by Amy Lavine, Esq.

The New Hampshire Supreme Court affirmed the denial of a variance in a February ruling, agreeing with the zoning board that permitting the property owner to build a larger residence would have been “contrary to the spirit of the ordinance.” In particular, the variance would have contributed to an overcrowding of the land, which was already restricted due to the property’s location on a narrow strip of lakefront land. The court found that it was entirely reasonably for the board to take into account the cumulative impact that would result if similar variances were sought for neighboring properties. Foley v. Town of Enfield, 2018 WL 665148 (2/2/18)

The property at issue was one of seven small parcels located on Rollins Point, a narrow strip of land that protruded into Crystal Lake. A seasonal cottage was located on the property, but the owner wanted to replace it with a larger, year-round residence with an attached garage. He submitted a request for a variance from the setback requirements in order to accommodate these plans, but the zoning board denied his application on the ground that it would be contrary to the spirit of the ordinance. The board pointed out that each of the properties on Rollins Point suffered from similar size and setback limitations, and it found that granting the variance would “crowd the land… and might encourage further such crowding.”

The court explained that it had previously found, in Harborside Associates, that a variance would be contrary to the spirit of the ordinance if it conflicted with the ordinance’s “basic zoning objectives.” Accordingly, it was necessary to examine the stated purposes of the ordinance, which in this case included “preventing the overcrowding of the land,” “assuring proper use of natural resources,” and “providing for harmonious development of the land and its environs.”

The property owner argued that his construction of a single-family home would not alter the character of the neighborhood, which was already built up with detached homes, but the court emphasized that the “character of the neighborhood” also had to take into account the similar size and geographic limitations on the other properties on Rollins Point. The property owner also argued that the zoning board impermissibly considered the potential for future crowding on Rollins Point, but the court found this analysis to be appropriate. As the court explained, while permitting the property owner to build a larger house might not have a substantial effect on Rollins Point by itself, the effect of granting similar variances for additional properties could be “large and irreversible.” It was thus entirely appropriate for the board to consider cumulative impacts in its review of the property owner’s application.

Next, the property owner contended that the board’s finding that his variance would be in the public interest contradicted its finding that it would conflict with the spirit of the ordinance. The court did not find this point to be persuasive, however, because while these two criteria were related, it had “never held that a zoning board’s findings on these two statutory criteria must be the same.”

The property owner also alleged that the board chair had engaged in improper ex parte communications on his request for rehearing, and if he had been aware of these communications he would have requested that the chair be recused. The particular communications involved an email list serve, which the chair had used the day before the board meeting to ask whether the board should consider precedents when deciding a case. The chair received several responses with various answers from municipal employees and zoning board members in other towns. Although the property owner claimed that he raised this issue during oral arguments at the superior court, however, the court declined to address this issue because record did not contain a hearing transcript to this effect. Additionally, because the superior court’s order did not address this issue, the correct procedure was to raise the error in a motion for reconsideration. Even assuming that the ex parte issue was properly preserved, the court noted that it would still not have found any error; there was simply no evidence that the list serve email had affected the board’s decision, let alone caused prejudice, as the board voted to deny the variance on rehearing on the same basis for its original denial.

Foley v. Town of Enfield, 2018 WL 665148 (NH 2/2/18)

This post was authored by Amy Lavine, Esq.

The public art ordinance in Oakland, California, was upheld by a federal district court in February. The ordinance requires developers to include public art displays as part of new development projects, or in the alternative pay an equivalent fee into a city-managed public art fund. The court found that the ordinance was not an unlawful exaction because it was generally applicable, and it did not compel speech in violation of the First Amendment because it did not require developers to express any particular message. Building Industries Association – Bay Area v. City of Oakland, 289 F. Supp. 3d 1056 (N.D. Cal. 2/5/18).

Oakland enacted requirements in 2017 for the inclusion of public art in new residential development projects. The law applied to projects with 20 or more units and required developers to either: (1) spend .5% of development costs on art displays located on-site or on a nearby right-of-way; or (2) contribute an equivalent fee into a city-managed public art fund. The Building Industry Association challenged the validity of the law, claiming that it was an unlawful taking in violation of the Fifth Amendment and that it constituted impermissible compelled speech in violation of the First Amendment.

The Association framed its takings challenge as an illegal exaction, but the court rejected this argument because the public art ordinance was not the sort of individualized assessment subject to the Nollan/Dolan exaction test. The court noted that the exactions doctrine is not implicated by generally applicable requirements; rather, it applies when government officials impose particular conditions on a property owner in exchange for approval of a development project. The court also rejected the Association’s argument the Supreme Court’s decision in Koontz allowed the exactions doctrine could be applied to generally applicable development regulations. As the court explained, Koontz did not hold “that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine; it held only that the exactions doctrine applies to demands for money (not merely demands for encroachments on property).”

Because the public art ordinance was a generally applicable zoning requirement, whether it constituted a taking should have been evaluated under the Penn Central test for regulatory takings, the court explained. The Association didn’t raise this argument, however, and even if it had, the court noted that the costs associated with the public art ordinance were simply too small for it to rise to the level of an unlawful regulatory taking.

With respect to the Association’s First Amendment challenge, the court acknowledged that the purchase and display of artwork is a protected form of expression, but it rejected the claim that the ordinance was an unconstitutional compelled speech regulation. Heightened scrutiny was not required, the court found, because the ordinance didn’t compel any particular viewpoint, but rather allowed developers to purchase and display whatever art they preferred. Moreover, to the extent that the ordinance compelled developers to engage in expressive conduct at all, the court found that this compulsion was minimal because developers had the option to pay in-lieu fees if they didn’t want to incorporate public art into their project designs. Accordingly, the First Amendment only required that the ordinance was reasonably related to a legitimate government purpose. The court found that the ordinance survived this test, as the purposes of the public art law, namely to improve aesthetics and increase property values, were legitimate government interests, and it was reasonable for the city to believe that these interests would be advanced by the inclusion of public art in and around new developments.

Building Industries Association – Bay Area v. City of Oakland, 289 F. Supp. 3d 1056 (N.D. Cal. 2/5/18)