This post was authored by Tyler Doan, Esq.

Petitioner, the owner of a historic theater, with an adjacent property owner, challenged the Town of Hempstead Town Board’s determination of the Petitioner’s theater as a historic landmark. The Supreme Court denied and dismissed the portions of the petition and proceeding which were pursuant to CPLR Article 78. The petitioners appealed. The Appellate Division of the Second Department affirmed the Supreme Court’s decision.

The Petitioners challenged the Town Board’s determination on three grounds. First, the Petitioners stated that the determination must be set aside because the Town Board failed to call a public hearing within 90 days of the Commission’s approval of the landmark application, as provided in the Code for the Town of Hempstead. The Appellate Division determined that the time limit at issue is directory and not required. The Court reasoned that since there are no consequences for failing to comply, there is no legislative history suggesting that the time limit is mandatory and there has been no showing of substantial prejudice, and thus the delay does not render the determination invalid.

Secondly, the Petitioners assert that since the Town Board did not make specific findings of fact, the determination should be void due to an arbitrary and capricious determination or abuse of discretion. Again, the Appellate Division denied assertion and stated that “[t]he record sufficiently established that the Theatre constitutes a “landmark” within the meaning of Code of the Town of Hempstead . . .  in that it possesses historical value and aesthetic interest by reason of its antiquity, uniqueness of architectural design, and its place within the development, heritage, and cultural characteristics of the Town of Hempstead.”

Lastly, Petitioners claimed that because two members of the Town Board had previously expressed support for the landmark application, the determination should be annulled. The Appellate Division once again denied the assertion by stating “[t]he record indicates that the Town Board’s determination flowed from the evidence presented at the public hearing rather than any alleged bias.”

989 Hempstead Turnpike, LLC v Town Board of the Town of Hempstead, 2023 WL 2778328 (NYAD 2 Dept. 4/5/2023)

This post was authored by Tyler Doan, Esq.

Plaintiffs, members of an LLC who applied for building permits, asserted that the Defendant, City of Whitefish’s impact fees for water and wastewater services amount to a Fifth Amendment Taking, among other causes of action. The Defendant sought a judgment on the Takings claim. The District Court denied the motion.

Montana allows for local governments to charge impact fees as well as sets limitations, criteria and how impact fees may be established, calculated, and imposed. “In Montana, the amount of the impact fee must be reasonably related and proportionate to the new development’s share of the cost of the infrastructure improvements.” The Defendant had been charging impact fees since 2007, but passed a resolution which increased the fees for water and wastewater services in 2018, which became effective in 2019.

Plaintiffs alleged that since the Defendant’s cost of water and wastewater impact fees greatly exceeds the actual impact that their new development has on the Defendant’s water and wastewater services and facilities, the overcharge amounts to an illegal taking of their property. Plaintiffs allege that two different third-party consulting reports, one in 2007 and one in 2018, that included maximum fee recommendations were misapplied, thus allowing for the Defendant to charge greater than the maximum allowable fee rates calculated by the consulting companies. Plaintiff further alleged that the 2018 resolution reflected anticipated costs related to future water and wastewater related projects that have since been “redefined” or “scrapped” and, similarly, the Defendant “ . . . cannot lawfully include these project costs in calculating appropriate impact fee rates.”

Defendants relied on a Ninth Circuit case that held the standards in Nollan v. California Costal Commission, 483 U.S. 825 (1987) and Dolon v. City of Tigard, 512 U.S. 374 (1994) “. . . applies only to individualized, adjudicative land-use decisions, not legislative, generally applicable development ordinances like the ones at issue in this case.”

The Court, in denying the motion by the Defendant for judgment on the claim, disagreed with Defendant’s assertion that a monetary exaction analysis under the Nollan and Dolon standard is inapplicable as a matter of law. The Court further reasoned that, in accordance with Ninth Circuit precedent, “any government action, including administrative and legislative, that conditionally grants a benefit, such as a permit, [could] supply the basis for an exaction claim rather than a basic takings claim.” As such, “. . . the Plaintiffs have sufficiently alleged a cognizable violation of the Takings Clause . . .”

Beck v City of Whitefish, 2023 WL 1068239 (D MT 1/27/2023)

This post was authored by Sebastian Perez, JD

In a lawsuit filed by Handsome, Inc. and its officers (“the Plaintiffs”) against the Town of Monroe, the Planning and Zoning Commission, and former town officials (“the Defendants”) under 42 U.S.C. § 1983, the court granted the Defendants’ motion for summary judgment. Plaintiff had requested a five-year extension for a permit to construct an industrial building, which was denied by Defendant and Plaintiff filed suit in the United States District Court of Connecticut (“the Court”) based on alleged violations of their constitutional rights.

Plaintiff owned a ten-acre parcel of land in Monroe, Connecticut, on which they planned to construct a 20,000-square-foot industrial building. Plaintiff applied for a special permit in 2003 to complete the scope of work, which was granted by Defendant with 36 conditions. In April 2008, Plaintiff requested a five-year extension for the permit, but the site was only partially excavated, which made it impossible to construct the approved building without excavating for all three of the potential buildings originally planned for. Defendant discussed Plaintiff’s request for an extension at a hearing on April 24, 2008, where they expressed concern about the lack of progress at the site, the permit authorization, Plaintiff’s failure to file progress reports, and frustration over lax enforcement of zoning regulations. Defendant denied Plaintiff’s extension request, and Plaintiff appealed the decision.

Plaintiff filed a lawsuit against Defendants alleging a violation of their constitutional rights. Defendants then filed a motion for summary judgment, arguing that Plaintiffs were not deprived of any constitutional rights and that the individual defendants were entitled to qualified immunity. The Court granted Defendants’ motion for summary judgment. The Court ruled that the individual plaintiffs lacked standing to appeal the Defendant’s grant of extension because they had no direct ownership interest in the property and acted in their capacities as corporate officers representing the interest of Plaintiff. The Court also found that Defendant did not violate any constitutional rights of Plaintiff and its officers.

In conclusion, the court granted Defendants’ motion for summary judgment, ruling that Plaintiffs were not deprived of any constitutional rights and that the individual defendants were entitled to qualified immunity. The Court also ruled that the individual plaintiffs lacked standing to appeal Defendants’ grant of extension because they had no direct ownership interest in the property and acted in their capacities as corporate officers representing the interest of Plaintiff.

Handsome, Inc v Town of Monroe, 2023 WL 2742315 (D. Conn. 3/31/2023)

This post was authored by Matthew Loescher, Esq.

Plaintiff, Christopher Whiteaker appeared in the 28th District Court of Michigan to defend himself, and he claimed a right to maintain the chickens under Michigan’s Right to Farm Act, just as he had successfully done previously while he lived in Wyandotte. Shortly thereafter, Whiteaker learned that Michigan’s Right to Farm Act was inapplicable to his matter because the chickens and their coop were within 250 feet of a dwelling. Whiteaker has suffered from depression and anxiety for many years, and claimed the prospect of losing his chickens exacerbated these conditions. Whiteaker learned about emotional support animals (“ESAs”) and sought counseling from a mental health provider who conducted testing and diagnosed him with Acute Stress Disorder. Whiteaker filed then this action against Defendant, the City of Southgate, Michigan for violations of the Fair Housing Act (“FHA”) and Michigan’s Persons with Disabilities Civil Rights Act (“PDCRA”). During the course of litigation, the City conceded that Whiteaker was disabled and that a chicken was an acceptable emotional support animal, but argued that six chickens was unreasonable.

The court first noted that Whiteaker claimed a disability and provided evidence of this disability. While the City claimed to be burdened financially and administratively by Whiteaker’s disability, it provided no supporting evidence. The court found that Whiteaker’s claim he was keeping his chickens safely, and the City’s claim he was not, were questions of fact for the jury. Without any evidence from the City proving their burden outweighed Whiteaker’s benefit, summary judgment was improper. Even if the court found that the City’s burden outweighed Whiteaker’s benefit, the City would still fail to prove the remaining elements of necessity and equal opportunity. Here, the City failed to provide any testimony, affidavits, or evidence of any kind in support of its claims; instead, the City merely questioned the therapeutic benefits of chickens and the quantity Whiteaker possessed. Accordingly, the court denied the City’s Motion for Summary Judgment.

Whiteaker v City of Southgate, 2023 WL 317457 (ED MI 1/19/2023)

This post was authored by Matthew Loescher, Esq.

In 2009, Lake Lincoln applied to the County to amend the Tara DRI development order and zoning ordinance to create a 3.32-acre subparcel, “Subphase III-BB,” within its 10.32-acre parcel, rezone the newly-created subparcel from PDR to Planned Development Commercial (PDC), transfer existing commercial and/or residential entitlements from other DRI subphases to Subphase III-BB to grant the parcel development rights, and add an adult assisted living facility use to Subphase III-BB. The County denied all of Lake Lincoln’s requested amendments related to the 10.32-acre parcel, including the creation of Subphase III-BB. Lake Lincoln filed a lawsuit against the County in 2012 and alleged a permanent regulatory taking arising under article X, section (6)(a), of the Florida Constitution. Settlement negotiations took place, and in 2019, the County ultimately approved the rezoning of subparcel III-BB to authorize limited residential/residential support uses. Between October 2010 and September 2019, the 10.32-acre parcel’s use was restricted to open spaces and wetlands. Lake Lincoln subsequently amended its complaint in count two to allege a categorical regulatory taking for this almost nine-year period based on the County’s denial of the development application seeking amendment of the DRI development order to assign entitlements to and rezone the 3.32-acre parcel. As to count two, the County filed a motion for summary judgment and Lake Lincoln filed a motion for partial summary judgment as to liability. After a hearing on the motions, the trial court granted summary judgment in favor of the County.

The trial court found that because the 10.32-acre parcel was located within the development of regional impact (DRI), they were physically contiguous. In reaching this decision, the trial court relied upon the “ownership history” of the Tara DRI as a whole and the 10.32-acre parcel, concluding that the original Tara developer made an “internal transfer” of the 10.32-acre parcel to Lake Lincoln because the companies possessed a common principal. The court found this did not account for the reality that Lake Lincoln owned no property adjacent to the 10.32-acre parcel, however. As such, Lake Lincoln did not own any contiguous land that could be considered part of the “relevant parcel.”

The court next found that the fact that the 10.32-acre parcel was in a DRI that required a transfer of entitlements for development appeared to have driven in large part the trial court’s decision that the relevant parcel was the entire 1,124-acre DRI. It noted that this ruling would result in a large DRI being deemed the “relevant parcel” for most cases where a small parcel affected by government regulation was located within a DRI. Here, the court found that the relevant parcel for takings purposes was the 10.32-acre parcel. Specifically, when considering the proper relevant parcel, the undisputed facts demonstrated that Lake Lincoln could achieve no economic use on its 10.32-acre parcel as a result of the County’s restriction to uses for only open spaces and wetlands during the nearly nine-year period. Accordingly, the court held that the trial court erred as a matter of law in determining that the entire 1,124 Tara DRI was the relevant parcel for takings purposes. The court therefore reversed the final summary judgment and the ruling that the County was entitled to summary judgment on count two for inverse condemnation and that Lake Lincoln was not entitled to partial summary judgment on count two.

Lake Lincoln, LLC v Manatee County, 2023 WL 175208 (FL App. 1/13/2023)

This post was authored by Matthew Loescher, Esq.

Management Properties operated a beachfront single-family property in Redington Shores, Florida, as a vacation rental. In August 2020, the Town adopted an ordinance creating section 90-116 of the Code of the Town of Redington Shores. On June 18, 2021, Management Properties filed an action for declaratory relief in Pinellas County challenging the validity of section 90-116, alleging that the provisions of section 90-116(D)(2)(a)-(b) requiring vacation rental operators to provide written notice to guests of the laws and regulations governing vacation rentals and to report violations of those laws and regulations constitute compelled speech. The court found that section 90-116(D)(2)(a) and (b) involved commercial speech and that the disclosure requirements in the ordinance survived under either intermediate scrutiny or rational basis review. The trial court made written order along with the final judgment from which Management Properties appealed.

The record reflected that the Town’s stated interest in promoting compliance with the laws and regulations governing vacation rentals sufficed under any level of constitutional scrutiny, particularly in light of the minimal burden imposed upon vacation rental operators, who were simply required to pass along this information to their guests. Accordingly, the court affirmed the entry of judgment on the pleadings as to this portion of Management Properties’ compelled speech claim. Notwithstanding this, the court was are unable to conclude from the face of the pleadings that the mandatory reporting requirement could withstand either level of heightened constitutional scrutiny. Specifically, the court was not persuaded that the Town’s stated interest of promoting compliance with the standards for vacation rentals by preventing violations of those standards from occurring, would be directly advanced by a mandatory requirement to report violations that have already occurred. Additionally, nowhere in the pleadings or attachments thereto had the Town suggested any other governmental interest that would be served by imposing upon vacation rental operators a duty to report any violation of the laws and regulations governing vacation rentals.

Next, the court noted that while the trial court made detailed oral findings on the compelled speech claim, it only specifically addressed that issue as it pertained to section 90-116(D)(2)(a)’s disclosure requirement. In so doing, the trial court may have failed to consider whether the speech regulated by the mandatory reporting provision differed from the speech regulated by the disclosure provision in any constitutionally meaningful way. Based on the aforementioned, the court held that further proceedings were necessary on this aspect of Management Properties’ compelled speech claim.

Management Properties, LLC v Town of Redington Shores, 352 SO 3d 909 (Fl. App. 12/5/2022)

This post was authored by Matthew Loescher, Esq.

Plaintiff Levy Machining, LLC brought suit against Defendants Hanover Township and Jeff Heath on November 11, 2021, alleging that Defendants selectively enforced zoning ordinances against them in retaliation for personal disputes between Defendant Heath and the Levy Family. In 2018, Defendant Heath ran for Township Supervisor, and on April 15, 2019, within three days of Heath’s election and after he was appointed Zoning Administrator, Plaintiffs were given a notice to cure their ordinance violation of “operating a business in an AG-1 Zoning District, in violation of Ordinance 4.1.1,”

The court first noted that under Michigan law, claim preclusion “bars a second, subsequent action when the prior action was decided on the merits, both actions involve the same parties or their privies, and the matter in the second case was, or could have been, resolved in the first.” Here, when making its ruling, the Jackson County Circuit Court summarized the facts and found there was no genuine issue as to a material fact that the Township was entitled to summary disposition on all counts. The court found that the state court matter involved summary disposition proceedings that resulted in a “Final Judgment.” As part of this judgment, the Jackson County Circuit Court issued a permanent injunction. Thus, the state court matter constituted a prior decision on the merits under Michigan law.  The court also found that the instant case and the state court matter involved the same parties or their privies.

The court next noted that “the fact that plaintiffs suffered additional damages, standing alone, does not entitle them to pursue a second claim”. Specifically, under Michigan law, Plaitniffs could have argued for future damages on at least some of their claims. Therefore, the court held Plaintiffs could have brought their current claims as counter claims in the state court matter. Because the three Adair factors were satisfied, the court found Plaintiffs’ equal protection, substantive due process, procedural due process, conspiracy to interfere with civil rights, tortious interference, and civil conspiracy were all precluded by the state court matter. The court declined to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims for defamation and intrusion on seclusion.

Levy Machinery, LLC v Hanover Township, 2023 WL 318446 (ED MI 1/19/2023)

This post was authored by Sebastian Perez, JD

The Court of Appeal, Second District, of California (the “Court”) was faced with an issue regarding the construction of an eldercare facility (the “Project”) in Pacific Palisades whose opponents’ challenges were rejected by the trial court and this appeal followed.

The site of the Project was a vacant lot surrounded by residential condominiums, a restaurant, an office and business center, and commercial developments. The neighborhood was a mix of multifamily and single-family homes. The Project was a proposed four-story eldercare facility that aimed to address the lack of housing options for older adults in the area which complied with city zoning regulations for the lot. The developer’s application for the Project went through a comprehensive review process that involved six layers of scrutiny and consisted of a review by the City Zoning, Administrator, West Los Angeles Area Planning Commission, Planning and Land Use Management Committee, Los Angeles City Council, California Coastal Commission, and finally the Superior Court. The Project received support that cited the need for housing options for older residents and the importance of keeping the elderly in their familiar neighborhoods. Similarly, the Project also faced opposition which cited issues such as parking, traffic, fire hazards, lack of nearby medical resources for seniors, and the impact on the view and natural beauty of the area. 

After a public hearing, the zoning administrator issued a decision that approved the Project, granted a coastal development permit, and concluded that the Project had no significant environmental impact and qualified for the Class 32 categorical exemption under the California Environmental Quality Act (“CEQA”). The administrator also determined that the project aligned with the general plan and zoning of the area, specifically the Brentwood-Pacific Palisades Community Plan, which was part of the City’s overall general plan. Opponents appealed the decision to the West Los Angeles Area Planning Commission whose objections included inconsistency with the parklike neighborhood, lack of nearby medical and emergency facilities, negative impact on scenic values and views, traffic congestion and parking issues, noise and landscaping concerns, threats to wildlife, archeological sites, and water quality, and violation of zoning codes. The West Los Angeles Area Planning Commission conducted a public hearing which rejected the objections to the Project and determined it aligned with the general plan of the area, adhered to design guidelines, and preserved the community’s character. Appeals were made to the Planning and Land Use Management Committee of the Los Angeles City Council and the California Commission (the Committee”). After extensive testimony, the Planning and Land Use Management Committee unanimously recommended that the City Council deny the appeal and approve the Project which the City Council then held a public hearing and approved the Project. The California Coastal Commission (the “Commission”) then heard the appeal, focused on the objections regarding the Project’s design and visual impact, and concluded that those concerns were insubstantial. The Commission also found the Project would have complied with CEQA and would align with relevant codes, plans, and guidelines. After a public hearing, the Commission unanimously rejected the appeal and deemed the Project did not present a substantial issue. The Project’s challengers then filed a lawsuit against the City of Los Angeles and the Commission that challenged the Project’s approval that alleged errors and abuse in unsupported findings, violation of CEQA, and denial of a fair hearing. The trial court denied the writ petition, found that the Project’s approval was in compliance with CEQA, and ruled that the City made appropriate findings. On appeal, the Court reviewed the Los Angeles zoning code, discussed the claims that the City did not adequately assess the Project’s compatibility with the neighborhood, and the attack against the Commission’s decision. 

Regarding the Los Angeles zoning code, the Court explained that the dispute revolved around section 12.22.A.18(c)(3). That provision stated that yard requirements did not apply to residential portions of buildings on lots used for combined commercial and residential uses, provided that those portions were exclusively residential, abutted a street or alley, and had the first floor used for commercial purposes or access to the residential portions. The Court concluded that the Project satisfied all four elements of the provision and affirmed that it also complied with the Los Angeles zoning code and dismissed the claim. Next, the Court addressed the argument that the Project was not compatible with the neighborhood under the substantial evidence standard and deferred to the City’s interpretation of its policies if reasonable. The Court found that the substantial evidence supported the City’s finding of architectural compatibility between the Project and the urbanized area. Lastly, the Court addressed the appellate attack on the Coastal Commission’s decision. The Court determined that the Commission’s decision was reasonable and supported by substantial evidence and dismissed the concerns about traffic and parking as the Commission had relied on a traffic study which concluded that the project would have had a minimal impact.        

Therefore, the Court affirmed the judgment of the lower court and allowed the Project to move forward.

Pacific Palisades Residents Association, Inc. v City of Los Angeles, 805 Cal. Rptr. 3d 564 (Ca. App. 3/27/2023)

This post initially appeared on the Dalton Tomich blog and is reposted with permission from Dan Dalton, Esq. https://daltontomich.com/lawsuit-over-stalled-solar-panel-project-reflects-growing-friction-with-zoning-approval-from-local-governments/

Lakeside Solar, LLC, filed suit against White River Township, on February 28, 2023, in U.S. District Court, regarding a prospective solar panel project on Michigan’s west side.  For more than three years, Lakeside Solar has been developing this project over hundreds of acres in Muskegon County, which falls within the jurisdiction of White River Township.

Michigan is one of the few remaining Midwest states to require local approval for utility-scale renewable energy projects, rather than require approval at the state-level.  This can and has resulted in friction between local officials and the increasing number of proposed renewable energy projects in the state. As a result, the development of solar ordinances are becoming more and more significant.

With respect to Lakeside Solar, around 2019, it is reported to have initiated discussions with White River Township as to its investment in its proposed solar project.  At this time, the Township was developing a solar zoning ordinance, which was eventually enacted in December 2019.  Over the past three years, Lakeside Solar claims it has been acquiring land agreements from numerous landowners to install solar panels on the properties.  Lakeside Solar claims in its Complaint that the company worked to develop its project in accordance with the enacted 2019 solar ordinance.  By November 2022, Lakeside Solar applied for a special land use permit as required under the ordinance.  However, the township ended up enacting a 6-month moratorium this past January 2023, in order to work on amendments to its solar ordinance.

This moratorium acts as a temporary prohibition on approving licenses, approvals, etc., such as barring approval of Lakeside Solar’s special land use permit for its developing solar project. Lakeside Solar’s lawsuit alleges, among other things, that this moratorium is invalid and violates state laws because the Township based it on police power. Specifically, under Michigan law, while a local government may enact zoning regulations, it may not suspend a zoning ordinance or its procedural requirements by citing general police power.

The Michigan Zoning Enabling Act authorizes local municipalities to enact zoning ordinances or regulations while also specifying procedural requirements for these municipalities.  Courts have emphasized that local governments may not avoid such procedural requirements under the Zoning Enabling Act, by claiming its zoning ordinance valid pursuant to general police power. Lakeside Solar’s lawsuit further alleges that, unlike this case, where courts have permitted a moratorium, it is based on a direct threat to health, safety, and general welfare.  This lawsuit was recently filed and is ongoing therefore, no decision or judgment has yet been made by the U.S. District Court.

As mentioned, given that Michigan maintains approval for larger renewable energy projects at the local level, pushback or complicated requirements for multiple projects have already arose and are sure to occur again. As a landowner or company involved in the renewable energy business, it is important to be aware of requirements local governments are bound by, as well as your rights throughout the development of these solar projects and/or related agreements. 

In March 2023 the NYC City Council adopted Local Law 43 (2023) to extend the 2019 freeze (Local Law 28 of 2019) through January 1, 2025 on issuing penalties to property owners who are in violation of certain rules that govern accessory signage. For background and more information see, https://www.citylandnyc.org/council-adopts-law-to-extend-waivers-of-accessory-sign-violations/