This post was authored by Matthew Loeser, Esq.

Petitioners commenced this CPLR article 78 proceeding seeking to void certain actions of respondents New York State Department of Environmental Conservation (DEC) and Zoning Board of Appeals of Town of Sterling (ZBA) and to enjoin “the advancement” of a mine project on land owned by respondent Christopher J. Construction LLC (CJC). The ZBA, and respondents Planning Board of Town of Sterling, and Town of Sterling moved to dismiss, and CJC and respondent Christopher Ferlito cross-moved to dismiss the amended petition against them. Supreme Court denied the amended petition, and granted the motion and cross motion, but did not issue a decision explaining its reasoning.

At the outset, the court noted that “General Municipal Law § 239–m requires that a municipal agency, before taking final action on an application for land use approval, refer that application to a county or regional planning board for its recommendation.” Here, it was undisputed that the ZBA did not refer the initial application for an area variance to the Cayuga County Planning Board before taking final action on that application. The court found that, contrary to the contention of the Town respondents, area variances were proposed actions for which referral was required under the statute.

The owners next claimed that the ZBA’s determinations did not be voided because the ZBA’s unanimous approval to grant the amended area variance was sufficient to override the recommendation of the Cayuga County Review Committee to disapprove the area variance. The court rejected this contention, holding that the subsequent vote could not retroactively cure the jurisdictional defect in granting the original area variance upon which the ZBA relied in granting the amended area variance.

Lastly, the court found that there were no identifiable violations of the Freedom of Information Law or the Open Meetings Law that would warrant relief, and the court therefore properly granted those parts of the motion and cross motion seeking dismissal of that cause of action. Here, there was no evidence that any documents were wrongfully withheld. Furthermore, petitioners failed to establish that the Town respondents released any documents or records “because of the commencement of litigation, and have failed to produce any evidence that respondents did not act in good faith.”

Fichera v New York State Department of Environmental Conservation, 159 A.D. 3d 1493 (4 Dept. 3/16/2018)

This post was authored by Matthew Loeser, Esq.

Applicants filed an application to construct a two-story garage on their property. This application was denied, so Applicants filed a second application for a variance/special exception, which was then amended. The amended application sought relief from the minimum front yard setback of 30 feet, and a variance for two-story garage addition. The Board denied Applicants’ request for the variance, and found that Applicants did not satisfy their burden of demonstrating that the requested variance represented the minimum variance that would afford them relief and the least modification possible of the at-issue Ordinance. Applicants appealed the Board’s decision to the trial court, which reversed the decision of the Board and sustained Applicants’ zoning appeal.

On appeal, the Borough first claimed that the trial court committed error and abused its discretion when it reversed the Board’s decision without identifying any specific error of law made by the Board. The record reflected that the trial court reviewed the transcript of that hearing and determined that the transcript suggested that “the Board came to the hearing with a predetermined mindset to negotiate a smaller footprint prior to the taking of any testimony.”  Additionally, the trial court’s opinion explicitly stated that the Board’s “formal decision failed to discuss, elaborate or explain in detail the decision reached, nor did it address the specific facts and considerations as to the property.” As such, the court determined that the trial court identified specific errors made by the Board in reaching its decision.

The Borough next argued that that the trial court committed error and abused its discretion by failing to identify and consider the elements that Applicants needed to prove to justify approval of the variance. Here, under section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), “the board may grant a variance, provided that all of the following findings are made where relevant in a given case.” As it pertains to this case, the fifth factor is whether the variance, if authorized, would represent the minimum variance that would afford relief and represent the least modification possible of the regulation in issue. At the zoning board hearing, Applicants conceded that a smaller garage could be built and that they would consider such a reduction in size. As the trial court did not include a finding in its opinion regarding the minimum variance requirement, the court held that the trial court erred in failing to address this issue.

Lastly, the court held that the trial court did not consider whether the Applicants’ request constitutes a de minimis variance. Here, since the proposed addition created only an additional 1.5 feet of encroachment, the trial court erred in failing to consider whether the Applicants’ request was a de minimis variance. Furthermore, as Applicants’ request proposed a 1.5-foot extension of a nonconforming use, the trial court erred in failing to consider whether the request required a special exception under Article 8, section 805.4 of the Dallas Borough Zoning Ordinance. Accordingly, the court vacated the trial court’s order, and remanded the matter to the trial court to determine whether Applicants’ request was a de minimis variance, and whether a special exception should be granted.

Kosek v Dallas Borough Zoning Hearing Board, 2018 WL 2770709 (PA Cmwlth 6/11/2018)

This post was authored by Matthew Loeser, Esq.

Tuscola Wind III, LLC, a Delaware limited liability company indirectly wholly owned by NextEra Energy Resources, LLC., desired to build the “Tuscola III Wind Energy Center” in Tuscola County, Michigan. The project would include 55 wind turbines in Fairgrove, Almer, and Ellington Townships, and would produce enough energy to supply 50,000 homes with wind energy. Tuscola Wind’s claims arose from Almer Township’s denial of a Special Land Use Permit (“SLUP”) that would have permitted Tuscola Wind to construct the Tuscola III Wind Energy Center. After the Planning Commission recommended denial of the SLUP application, Tuscola requested an interpretation of the Zoning Ordinance’s 45 dBA limit by the Zoning Board of Appeals (“ZBA”). Tuscola asked the ZBA to provide expedited review. When the Almer Township Board denied the SLUP application, the ZBA appeal had not yet been resolved. Tuscola subsequently withdrew its request for an interpretation of the Zoning Ordinance’s provision regarding noise emissions.

In this case, Defendants first contended that Tuscola had no property interest in its SLUP application. Tuscola argued that it held leases to develop and use the parcels covered by its SLUP application, and therefore had an interest in the use and possession of real estate. The court found that these leases alone failed to establish a protected property interest. Here, the record revealed that the plain language of those contracts set forth that the property rights vest only when Tuscola exercises the option, which would only occur if Tuscola obtained the permit. Since Tuscola failed to identify a protected property interest which the Township had infringed, its procedural due process claim was dismissed.

Tuscola next claimed that the Township’s zoning ordinance violated the Equal Protection Clause of the United States and Michigan Constitutions, on its face and as it was applied to them. The court noted at the outset that the planning commission members have a considerable amount of discretion in considering SLUP applications for wind energy conversion systems. The court found that this significant discretion entrusted to the Township and the extremely limited number of specifically identified comparable data points underscored the unsuitability of the class-of-one theory in this situation. Nevertheless, the court analyzed the equal protection claim and found that, in identifying a SLAP application to construct a cell phone tower, Tuscola identified only limited evidence of similarly situated SLUP applicants. Accordingly, Tuscola’s Equal Protection claim was denied.

Lastly, the court reviewed Tuscola’s allegation that several Township Board members violated the Michigan Open Meetings Act (“OMA”) through private communications and deliberations both before and after being sworn into office. Specifically, Tuscola claimed that “the Board members continued engaging in concealed deliberations after they were sworn into office” because the Board implemented an email policy whereby “the members would send an email to themselves and blind carbon copy the remaining Board members.” The court found that while merely emailing all members did not violate the OMA unless there was some level of discourse on an issue of public policy, the emails strongly indicated that the procedure was adopted in order to facilitate communication between the Board. Given the Township’s threadbare briefing on this issue and the outstanding factual questions, the court denied the Township’s summary judgment motion on this issue.

Tuscola Wind III, LLC v Almer Charter Township, 2018 WL 2937409 (ED MI 6/12/2018)


This post was authored by Matthew Loeser, Esq.

Lockerbie Glove Factory Town Home Owners Association, Inc., and eight residents of the townhomes (“Remonstrators”) appealed the decision by the Indianapolis Historic Preservation Commission to grant a certificate of appropriateness to Dan Jacobs for the purpose of constructing a retail, residential, and parking project known as “Block 20” on a parcel of land in the Lockerbie Square Historic District in Indianapolis, Indiana. The Remonstrators filed a petition for judicial review in Marion Superior Court. While that case was pending, the Remonstrators filed a motion to compel, seeking discovery from the Commission on the issue of the possible bias of Commissioner White in favor of Jacobs. The trial court affirmed the Commission’s award of a certificate of appropriateness.

On appeal, the Remonstrators alleged the Commission decision was invalid because one of the Commission members was “presumptively biased” in favor of the application. The Remonstrators based their assertion of bias on a single statement Commissioner White made at the first review hearing, in which he noted that he had been on the Athenaeum board for several years and suggested that Jacobs consult an acoustician to consider the acoustic effects of the project in relation to the existing Biergarten at the Athenaeum. The record reflected that despite this statement being made at a public hearing at which the Remonstrators’ representative was present, the Remonstrators made no objection to Commissioner White’s participation in the final hearing and vote. The court held that due to this failure to object to Commissioner White’s participation or move for his disqualification at or prior to the final hearing, the Remonstrators waived this issue on judicial review.

The Remonstrators next argued that the Commission’s decision to issue a certificate of appropriateness to the Block 20 project violated numerous Historic Preservation Statutes, including the Commission’s failure to duly consider the Historic Plan. Here, however, before issuing a certificate of appropriateness for the Block 20 project, the Commission staff met with Jacobs a dozen times and issued three reports to the Commission. Additionally, the Commission held two public preliminary review hearings and a final public hearing, and Jacobs made numerous changes to the project plans in response to concerns raised at each stage of the proceedings.  The Commission also heard community members’ concerns, both for and against the project. Accordingly, the court held that the Commission did not act arbitrarily and capriciously, abused its discretion, or issued a decision unsupported by the evidence. The judgment of the trial court was therefore affirmed.

Lockerbie Glove Factory Town Home Owners Association v Indianapolis Historic Preservation Commission, 2018 WL 2750011 (IN App. 6/8/2018)

This post was authored by Matthew Loeser, Esq

Plaintiffs William M. Byron and Dana T. Byron appealed from a summary judgment order dismissing their declaratory judgment action against defendant SYNCO Properties, Inc. and the City of Charlotte, in which Plaintiffs challenged the rezoning of real property in Charlotte, North Carolina. Defendants contended that Plaintiffs lacked standing to bring their suit.

Plaintiffs argued that the City and trial court misinterpreted the words “zoning ordinance changes initiated on or after 1 August 2015” in Session Law 2015-160. Specifically, Plaintiffs contend that, because SYNCO filed its first rezoning petition prior to that date, the court should hold the rezoning under its second petition was a “zoning ordinance change initiated” prior to the session law’s effective date. However, Plaintiffs conceded in oral argument that their property was not subject to the proposed change in SYNCO’s petition, and was not within 100 feet of the area subject to rezoning. The court therefore found that Plaintiffs were parties not subject to or able to avail themselves of the Protest Petition Statute, and were not “directly and adversely affected” by the unavailability of a statutory procedure. Thus, Plaintiffs lacked standing to bring this challenge.

As to their constitutional claims, Plaintiffs argued their separation of powers and unlawful restriction claims solely as persons with a “general interest as citizens in good government in accordance with the provisions of the Constitution.” However, without an allegation that the subject zoning ordinance amendments were or would be enforced against the property owned by plaintiffs, the court held that plaintiffs failed to demonstrate that they sustained an injury or were in immediate danger of sustaining an injury from enforcement of the ordinance amendments against them. Accordingly, plaintiffs failed to carry their burden to make sufficient allegations to establish standing to bring their constitutional claims against the defendant. The trial court’s order was therefore affirmed.

Byron v Synco Properties, 813 S.E. 2d 455 (NC App. 3/20/2018)

This post was authored by Matthew Loeser, Esq.

Respondent NYC Department of Buildings (DOB) issued a notice of violation (NOV) to a property owner for displaying on the building an outdoor advertising sign for “Kickstart” in a residential district in which such signs were prohibited under the New York City zoning resolutions (ZR). Petitioner argued that the advertising sign was a legal nonconforming-use under the ZR, as the sign had been displayed there since before 1961, without any break exceeding two years. However, in a hearing regarding the violation, an administrative law judge (ALJ) sustained the notice of violation and imposed a fine. Petitioner filed a Zoning Resolution Determination Form (ZRD1) with DOB’s Manhattan Borough Commissioner seeking a determination as to the legality of the sign. The Commissioner denied the application, but later reversed his decision. Petitioner then sought administrative review of the ALJ’s determination by respondent NYC Environmental Control Board (ECB). The ECB affirmed the ALJ’s determination that the sign was illegal. Neither petitioner nor DOB had informed ECB of the decision on petitioner’s ZRD1 application. Petitioner then commenced an article 78 proceeding seeking to annul ECB’s decision. The court found that the ZRD1 approval in effect at the time ECB issued its determination effected an automatic vacatur of the NOV and the ECB decision, and concluded that DOB’s subsequent determinations revoking the ZRD1 approval and finding the sign illegal were arbitrary and capricious.

On appeal, the court held there was no basis for the conclusion that the ZRD1 determination had the legal effect of automatically vacating the NOV. The court found that the ZRD1 approval was not a jurisdictional fact that allowed the court to review materials outside the administrative record. As such, the trial court exceeded its jurisdiction by considering the ZRD1 determination. Furthermore, the court found the petitioner was required to exhaust its administrative remedies before ECB prior to seeking judicial review of ECB’s decision. Specifically, the court noted that petitioner could have brought an article 78 petition for the vacatur of the decision on the ground that respondents acted arbitrarily in failing to withdraw the NOV in light of the ZRD1. Accordingly, the trial court’s holding was reversed.

Jan Jan Realty Corp v New York City Environmental Hearing Control Board, 160 A.D. 3d 421 (1 Dept. 4/3/2018)

This post was authored by Matthew Loeser, Esq.

After the Civil War, Barry Farm was purchased by General Oliver O. Howard on behalf of the Freedmen’s Bureau so that former slaves could purchase lots on which to build their homes. Barry Farm consisted of 432 public housing units and was zoned R–5–A, Low Density Residential. The District of Columbia Zoning Commission issued an order approving a first-stage Planned Unit Development (“PUD”) and related Zoning Map Amendment application for the redevelopment into revitalized mixed-income, mixed-use communities. The application was submitted by the District of Columbia government, District of Columbia Housing Authority (“DCHA”), A & R Development Corporation (“A & R”), and Preservation of Affordable Housing, Inc. (“POAH”). Petitioner Barry Farm Tenants and Allies Association (“BFTAA”), an association composed of some of the current residents of the Barry Farm and Wade Road apartments, opposed the planned redevelopment.

BFTAA first argued that if the application was granted, low-income residents would disproportionately occupy the high-density units and that wealthier residents would occupy the lower-density parcels, therefore failing to establish an actual mixed-income community. The court found that there was no evidence in the record to support this claim. However, as to BFTAA’s contention that the Commission was required to explore other feasible alternatives, the court found the record did not contain a substantial basis to support the conclusion that the “cluster development approach” put forth by Barry Farm was necessary for effectuating the policy goals of the Comprehensive Plan, especially given the possibility that the units could be evenly distributed throughout the PUD site.

Next, BFTAA contended that the Commission erred when it approved 1,400 units, a deviation from the Barry Farm Small Area Plan’s recommendation for 1,110 units, without substantial evidence demonstrating that this deviation was necessary. The Commission’s order noted that the Applicant submitted information on the infrastructure costs associated with the development. In this supplement, the Applicant concluded that reducing the number of units would increase the fixed costs per unit, making it difficult to finance the project. Based on similar developments, the Applicant estimated that each unit would cost $250,000 to build, and the replacement units alone would cost over $86 million. As such, the record contained a sufficient factual basis to support the need for additional units beyond what was specified in the Barry Farm Small Area Plan. The court therefore held that the Commission did not err in concluding that economic necessity justified a departure from the Small Area Plan’s recommendation for 1,110 units.

Barry Farm Tenants and Allies Association v District of Columbia Zoning Commission, 182 A.3d 1214 (DC CA 4/26/2018)

This post was authored by Matthew Loeser, Esq,.

The New York City Department of Buildings’ (DOB) denied of Skyhigh Murals’ application to install an advertising sign on its property. The Board of Standards and Appeals of the City of New York (BSA) upheld this decision, and petitioner appealed. On appeal, the Supreme Court of New York annulled the BSA’s determination.

Here, the court determined that the BSA rationally found that the proposed sign was prohibited by New York City Zoning Resolution § 42–561 in light of its location within 100 feet of the boundary of a Special Mixed Use District superimposed on a Residence District. The record reflected that the 1997 resolution of the City Planning Commission of the New York City Department of City Planning that created the first Special Mixed Use District indicated that restrictions governing Residence Districts could apply to Special Mixed Use Districts, depending on the particular regulations at issue. Thus, the BSA’s determination that DOB properly denied petitioner’s application to install an advertising sign had a rational basis and was supported by substantial evidence. As the Supreme Court should have deferred to BSA’s determination instead of applying a de novostandard of review, its holding was reversed.

Skyhigh Murals – Colossal Media, Inc.  v Board of Standards and Appeals of the City of New York, 2018 WL 2727358 (NYAD 1 Dept 6/7/2018)

This post was authored by Matthew Loeser, Esq.

Central Delaware Business Park owned nineteen lots in a planned industrial park in the Town of Cheswold. In 2005, the Town proposed an amended ordinance changing zoning classifications, under which the Business Park’s property would have been separated into two new zones: I–1 Light Industrial and I–2 Heavy Industrial. Business Park objected to the 2005 Ordinance, claiming it would “cause an immediate financial hardship” by impairing five pending purchase agreements, affect the existing property owner’s present uses, and interfere with the development plan under the 1977 zoning. Business Park proposed an amendment to the 2005 Ordinance, Article 5A, which would allow it to retain the M–1 Industrial zoning under the 1977 zoning code. The Town agreed to adopt Article 5A, but when the Town published the 2005 Ordinance, Article 5A was not included. The Business Park filed suit in Superior Court seeking a writ of mandamus to compel the Town to publish Article 5A, which resulted in each party filing essentially identical stipulated orders.

Under the stipulated orders, the Business Park agreed to withdraw its claims, and the Town agreed to allow the Business Park to “continue with M–1 Zoning and site plans/building procedures under the 1977 Zoning Code”; to approve all the Business Park’s “pending site plan and building permit applications”; and to amend the 2005 Ordinance to include Article 5A. Eight years later, the Town considered enacting a new ordinance affecting the Business Park’s remaining six lots. Acting, sua sponte,  the Superior Court raised res judicata as a possible bar to the Town’s request for relief, and held that the Town’s claims were “dispensed with by res judicata” and the law of the case doctrine since the Business Park acquired vested rights pursuant to the settlement agreement.

On appeal, the Town claimed that the stipulated orders only required the Town to adopt the 2005 Ordinance with Article 5A included and to process the Business Park’s pending applications under the 1977 Ordinance. Conversely, Business Park argued that the stipulated orders incorporated Article 5A and established for all time the Business Park’s rights to be subject only to the 1977 M–1 Industrial zoning. As such, the court found that the Superior Court was faced with an interpretive dispute and not a res judicata question.

The court also found that the stipulated orders did not incorporate by reference the substance of Article 5A. In the settlement agreement, Article 5A was referred to only as part of the Town’s obligation to republish the 2005 ordinance with Article 5A. Specifically, it stated the Town “shall amend and republish the New Zoning Code to include Article 5A as unanimously passed on April 4, 2005.” The court found that because the substance of Article 5A was not referenced, its vested rights statements were “irrelevant for all other purposes” and were not substantively incorporated into the stipulated orders. Moreover, although the Town agreed that the Business Park property would “continue” with the 1977 zoning classification as of 2005, that commitment was not expressly stated to bind the Town over a decade later for all time and under all circumstances. Because the stipulated orders were found to be unambiguous, the Superior Court erred in looking to Article 5A as extrinsic evidence of the parties’ intent.

Cheswold v Central Delaware Business Park, 2018 WL 2748372 (DE 6/8/2018)

This post was authored by Matthew Loeser, Esq.

Larry Bagford, a planning and zoning specialist for the city of Hamilton, observed appellant operating an auto sales business. Appellant continued to operate its business despite being ordered to cease all operations and remove all vehicles for sale from the property as the city’s community development office had no record of a conditional use approval or the required certificate of zoning compliance being issued. In this case, Defendant-appellant, Marfel Motors, Inc., appealed from its conviction in the Hamilton Municipal Court for violating a zoning ordinance by operating a business without being issued a certificate of zoning compliance.

On appeal, appellant argued its conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Pursuant to Hamilton Codified Ordinances Section 1186.00, “any person, firm, or corporation who violates, disobeys, omits, neglects, or refuses to comply with, or who resists the enforcement of any of the provisions of the Zoning Ordinances and all amendments thereto, shall be guilty of an unclassified misdemeanor and shall be fined not less than $250.00 or more than five hundred dollars for each offense.” Here, the record reflected that Larry Bagford, a planning and zoning specialist for the city of Hamilton, testified he took a number of steps in determining that appellant had not been issued a certificate of zoning compliance, and found neither the electronic records nor paper files associated with the property contained a certificate of zoning compliance pertaining to the operation of a car lot or auto sales business. Bagford further  testified that despite appellant being notified in October 2016 that it was operating in violation of the city’s zoning ordinances, it refused to cease its operations and continued to use the property for its auto sales business. Accordingly, the judgement was affirmed.

State of Ohio/City of Hamilton v Marfel Motors, Inc., 2018 WL 1792202 (OH App. 4/16/2018)

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