Willow Springs sought to enjoin its neighboring village, Lemont, from approving a zoning reclassification and a proposed property development. The circuit court dismissed the complaint, finding that Willow Springs lacked standing to contest the zoning reclassification, which had been approved by the time of the circuit court’s ruling, and lacked standing at that time to challenge the remainder of the development application which Lemont had not yet approved. On appeal, Willow Springs argued it had standing to seek injunctive relief because it alleged that the proposed zoning reclassification and development of the Grant Road property would cause substantial, direct, and adverse injurious effects to its corporate capacity. Willow Springs further alleged that its claims were ripe because Lemont formally withdrew its ripeness argument with respect to the zoning reclassification when it approved that change.

Willow Springs specifically argued that the kinds of harm it would suffer were decreased tax revenue due to lower property values, increased municipal expenditures for road repairs, and lower air quality. In response, Lemont submitted evidence in support of its section 2-619 motion that demonstrated that the zoning reclassification did not represent any change to the status quo but instead was in line with both the current use of the property and its zoning prior to annexation. The court noted that allegations that related to the affirmative matters raised in the 2-619 motion, are not taken as true for purposes of ruling on a motion to dismiss. Therefore, since Willow Springs offered nothing more than conclusory allegations in its complaint, the court found there was nothing to support the claim that the zoning reclassification would cause a burden to it as a neighboring municipality.

As to its public nuisance claim, Willow Springs alleged that “property values will diminish,” that “tax revenue will be lost,” and that “roads will be more congested.” In making these claims, the court found that Willow Springs had only alleged a possibility of future harm that was dependent on the specific ways in which the property might be used. Here, the proposed new facilities at the Grant Road property were not yet operational, nor were they constructed, or even approved for construction. Accordingly, the court affirmed the circuit court’s holding dismissing Willow Springs’ claim for injunctive relief.

The Village of Willow Springs v Village of Lemont, 2016 IL App (1st) 152670 (IL App. 12/19/2016)

The Board of County Commissioners of Flathead County appealed from an order of the Eleventh Judicial District Court, which granted summary judgment to the Appellees and Cross-Appellants Citizens for a Better Flathead and Sharon DeMeester, who had challenged zoning actions taken by the Commission. By Resolution No. 955 HL, the Commission enacted a “Text Amendment” to the Flathead County Zoning Regulations (FCZR) that created a new zoning classification, called the General Business Highway Greenbelt, or B-2HG. By Resolution No. 837 BX, the Commission approved an “on-the-ground” zoning change known as the “Map Amendment”, applying the new B-2HG classification to particular property bordering Highway 93, north of Kalispell. The District Court held that “the map amendments along with the zone change on the land in question are voided” for failing to substantially comply with the Flathead County Growth Policy, and that the Commissioners’ actions in rezoning the 63 acres constituted illegal spot zoning.

The court found that the Map Report and the Commission’s analysis failed to consider possible conflicts between proposed B-2HG zoning and the Growth Policy, and other pertinent factors raised by the Growth Policy. Despite the Map Report noting that the B-2HG zone would “utilize standards for the site development similar to standards used by the cities to mitigate impacts of strip development,” consideration was not given to whether re-zoning this property along the highway would either limit or enhance the kind of development disfavored by the Growth Policy. Furthermore, there was no evidence indicating that Flathead County consulted the Montana Department of Transportation for guidance on development along Highway 93, nor did the Map Amendment analysis address how the newly allowed uses, such as banks, food stores, hotels, churches, etc. would impact traffic as the property directly abutting Highway 93 was developed. Accordingly, the court concluded the Commission abused its discretion in implementing the Map Amendment, and therefore did not reach the spot zoning issue.

As to the validity of the Text Amendment, the court noted that when the Text Amendment public hearing was held, public comment was received and the Commissioners orally responded with comments acknowledging the public input. The Commissioners then responded to public concerns by explaining that the Text Amendment would not automatically zone any given property, and made multiple changes to the language of the Text Amendment that came out of public workshops conducted about the proposed ordinance. Thus, the court held that the Commission satisfied the statutory obligation to permit the public to be heard and thus satisfied the obligations of the Flathead County ordinance by summarizing the concerns raised and explaining its position in light of those concerns. Accordingly, the Text Amendment was found not invalid for failure to comply with public participation requirements.

Citizens for a Better Flathead v Flathead Board of County Commissioners, 2016 WL 7239506 (MT 12/13/2016)

Rufo, the owner of TR Gretz, LP, which owned the Gretz Brewing Building, received a violation notice from the Department of License and Inspection, stating that the Property was vacant, lacked doors and windows with frames and glazing, and constituted a “blighting influence” as defined by section PM-202 of the Philadelphia Property Maintenance Code. The City of Philadelphia appealed the order of the Court of Common Pleas of Philadelphia County reversing the decision of the City’s Board of License and Inspection Review, which affirmed the Department of License and Inspection’s issuance of the violation notice.


On appeal, the City argued that the trial court erred in not enforcing the Windows/Doors Ordinance because that provision was rationally related to promoting the public health, safety, and welfare, and did not have a purely aesthetic purpose. Rebecca Swanson, Policy and Communications Director for the Department, testified on behalf of the City that “numerous studies” have shown that securing properties deemed blighting influences with boards or masonry rather than operable windows and doors “contributes to blight within the neighborhood, all sorts of problems.” The court found that Swanson’s testimony was conclusory because she failed to offer even a cursory explanation for her assertion, or specify which study supported her assertion.


Accordingly, the court affirmed the trial court, finding that while the City could consider aesthetics in using its police power, it could not exercise its police power based on aesthetics alone.


Rufo v Board of License and Inspection Review and City of Philadelphia, 2016 WL 7421335 (PA Cmwlth 12/22/2016)

 

In addition to being a church, Appellant Redeemed Christian Church of God, Living Spring Miracle Center, Inc. performed substantial community outreach and ministry work, including providing educational training, operating food banks and promoting medical screenings. Appellant’s Pastor Funmi Obilana sent a letter to the Township Code Enforcement Officer in which she stated the Property would be used for a multimedia production center, a community development center, a regional fellowship and conference center and a “place of praise and worship.” The Code Enforcement Officer responded by writing that the proposed uses would not be permitted in the BP District and did not meet the purpose of the BP District as set forth in the Ordinance. A couple months later, the Township Board of Commissioners enacted an ordinance that amended Section 1282.02(a) of the Ordinance to remove the by-right uses of: “motel or hotel, conference facilities, training, or continuing education centers…”; “place of public amusement, entertainment or assembly, including a movie theater, provided such use is inside a building”; and “educational or recreational use, day care center, nursery school, medical clinic and non-profit use.” This case arose as an appeal from the order of the Court of Common Pleas of Delaware County affirming the decision of the Zoning Hearing Board of Lower Chichester Township that denied Appellant’s application for a use variance.

On appeal, the court determined that Appellant’s application for a variance was not merely premised on the argument that it was not able to use the entirety of the space in the Building and that it would be more financially lucrative to use part of the Building in a different way than a strict reading of the zoning allowed, but on the fact that the Building represented an outdated and functionally obsolete office building that could not reasonably be put to any permitted use in the BP District absent substantial and costly renovations. The court found that since the state of a building may create an unnecessary hardship under the MPC, the mere fact that Appellant has used a portion of the Building for a permitted use did not negate the fact that the state of the Building could be an unnecessary hardship, and could not obligate it to maintain its partial use of the Building in perpetuity.

As to the trial court’s holding that the hardship was self-created, the court found on appeal that while Appellant was aware that its desired use of the Building was not compliant with the Township’s interpretation of the Ordinance prior to its purchase of the Property, there was nothing in the record indicating that the purchase price paid by Appellant presumed the variance would be granted or that the potential economic hardship of the Building affected the transaction. Additionally, the court found that because the proposed use was religious in nature, a potential exemption from property taxes could not be used as a factor in determining whether a request for a variance would be contrary to the public welfare. Finally, the court found that the proposed uses, particularly the training and educational functions of the Building, were substantially similar to permitted commercial uses and therefore had a minimal impact on the use of neighboring property owners and the health of the BP District as a whole. Accordingly, the court reversed the Court of Common Pleas, and held that the Board erred in denying Appellant’s application for a variance to repurpose half of the Building for religious, training and education uses.

Appeal of Redeemed Christian Church of God, 2016 WL 7449224(PA Commwlth 12/28/2016)

 

Pro se Plaintiff John Carney alleged that Defendants sent him a letter “without benefit of NYS or US Constitutional Due Process” that informed him that “the use of his sawmill is prohibited.” Plaintiff claimed this letter denied him “the use of his property and interferes with his freedom to contract.” Additionally, Plaintiff alleged that Defendants did not “respond to Plaintiff’s reply dated October 15, 2015 asking for discovery of definitions and statutory authorization of zoning codes.”


The court found that Plaintiff’s Complaint failed to allege that he appealed Defendants’ initial allegation that he violated the Town Building and Zoning Codes by operating an illegal saw mill and maintaining an improper structure on his property. Furthermore, Plaintiff failed to allege that he requested a variance to operate his saw mill or that he applied for a building permit for the structure. Likewise, Defendants demonstrated that Plaintiff had not appealed these issues, and that the Town’s Zoning Board of Appeals had not taken any action. As such, the court determined that until Plaintiff appealed these issues, there was no “final decision” giving the court jurisdiction to adjudicate Plaintiff’s claims. As to the futility exception to the finality requirement, the court found nothing in the Complaint suggested that the ZBA had “dug in its heels” or has otherwise prevented Plaintiff from appealing these decisions. Accordingly, the court held that Plaintiff’s claims were not ripe for judicial review until he obtained a final decision from the ZBA.


Carney v. Swanson, 2016 WL 7450459(WDNY 12/28/2016)

 

Petitioner, owner of vacant property in the Town of Ithaca, submitted an application to the Town Planning Board seeking approval to subdivide the property into 50 parcels consisting of 47 residential lots, two parcels to be donated to Cornell University as wildlife open space and a parcel to be dedicated to the Town and added to an existing park. In July 2006, the Planning Board issued a negative declaration of environmental significance pursuant to the State Environmental Quality Review Act (SEQRA), and granted preliminary subdivision approval with various conditions. On September 10, 2007, petitioner applied for final subdivision approval, submitting a proposed final plat that made several changes in the proposed project, particularly with reference to drainage and stormwater management. However, on the day the final application was submitted, the Town Board adopted a 270–day moratorium that prohibited the Planning Board from issuing “acceptance, consideration, preliminary approval or final approval … of any plan or application for subdivision of” petitioner’s property. With petitioner’s consent, the Town Board then extended the moratorium for two additional 270–day periods. No further action was taken on petitioner’s application until September 2014, when petitioner demanded that respondent issue a certificate establishing default approval of his application based upon the Planning Board’s failure to take action on his 2007 final application within the statutory time limit. Respondent denied petitioner’s request on the ground that additional SEQRA review, which was required due to the modifications in the final application, had never been completed.


The court found that even if Petitioner’s contention was correct that it was the Planning Board’s burden to initiate additional SEQRA review of his final application rather than his responsibility to request it, the narrow language of Town Law § 276(8) limited the remedy of default approval to failures to comply with statutory time limits that occur “after completion of all requirements under SEQRA”.  Here, as all SEQRA requirements were never completed, the court determined that the time period within which the Planning Board was required to act on the final subdivision application had never begun. Accordingly, the court held that the Supreme Court properly found that Petitioner was not entitled to default approval.


Lucente v. Terwilliger, 144 A.D.3d 1223 (2016)

 

The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina, received a dimensional variance from the defendant, zoning board of appeals of Salem, allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed an appeal in the Land Court. The judge therefore affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance.

On appeal the court agreed with the trial court that if Brewer adjusted its plans to fit within the requirements of the local zoning ordinance, a significant risk of harm for the people and property near the travel lift would result, as the operation of the travel lift required a large, open turning radius free of blind spots. The court also agreed with the trial court judge that “where a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance such a hardship may merit a variance.” Accordingly, due to the degree of danger that would result from compliance with the zoning ordinance, the court found the record supported the judge’s finding of a hardship.

Furlong v. Salem Zoning Board of Appeals and BHCM Inc. D/B/A Brewer Hawthorne Cove Marina, 90 Mass.App.Ct. 737 (MA. App. 12/12/2016)

Bloomfield-Garfield Corporation, Joanne Tzortzis, The Friendship Community Group, Doug Cruze and the Highland Park Community Council (collectively, Applicants) owned property comprised of four separate adjacent parcels. Applicants proposed to construct a one-story, 6,787 square foot structure containing an AutoZone retail auto parts store, which would require the demolition of several buildings. Additionally, since a level pad would be required to be constructed for the Property, Applicant’s site plan proposed to level the grade, which would result in the Proposed Building being approximately 8 feet higher than the current grade at Negley Avenue between Penn Avenue and Hugus Place. The ZMA denied the application, finding that razing or demolishing a nonconforming use or structure constituted abandonment of the nonconformity. In this case, Applicants appealed from the Allegheny County Common Pleas Court’s (trial court) order reversing the City of Pittsburgh Zoning Board of Adjustment’s decision denying 5542 Penn LP’s application for a special exception and variances. In reaching its decision, the trial court applied Section 921.03.A.1 of the Code, which set forth: “Maintenance, remodeling and repair of a nonconforming structure shall be permitted without a variance and without special exception approval, provided that such maintenance, remodeling or repair does not increase the degree of nonconformity.” On appeal, the court found that the trial court applied the wrong section, finding the applicable section was actually Section 921.03.C.3 of the Code, which stated “in the event of arson or other willful destruction, reconstruction of nonconforming structures shall be prohibited if such casualty is traceable to the owner or his/her agent. Such instances shall result in forfeiture of the nonconforming status…”
The court further determined that even if the nonconforming structures were deemed to be “enlarged or expanded,” rather than destroyed, Appellants presented substantial and credible evidence that the proposed use would have detrimental effects on traffic and parking. The record also reflected that the proposed parking lot, an accessory use under the Code, would use approximately 92% of the gross floor area of the primary use, more than three times the 25% requirement of Code Section 904.02.B.2. Furthermore, the full rear wall of the proposed structure would face the adjacent Avenue, in violation of Section 922.04.E.3.c of the Code, which required “all primary structures shall provide a prominent and highly-visible street level doorway or entrance on all facades of the building which front on a street.” impacts. Accordingly, the court reversed the trial court’s order, and the ZBA’s decision was reinstated.
5542 Penn LP v. Zoning Board of Adjustment of the City of Pittsburgh, 2016 WL 7369097 (PA Cmwlth 12/20/2016)

Western Petroleum, LLC, and Maxum Petroleum Operating Company, Inc., doing business as Pilot Logistics Services, appealed from a district court order affirming the Williams County Board of County Commissioners’ decision to penalize Pilot for violating the county’s temporary housing regulations. In September 2011, the Williams County Board of County Commissioners adopted temporary housing regulations relating to the use of “man camps” or “crew housing facilities” in the county around fracking sites. The use of temporary housing on property within the county was thereafter prohibited without a conditional use permit. In September 2011, the Board granted Western Petroleum a conditional use permit for temporary housing units on its property, which allowed Western Petroleum to use up to 40 RVs for one year and up to seven mobile homes for two years. In February 2012, Pilot Logistics acquired Western Petroleum and its property; however, Western Petroleum did not transfer the permit to Pilot, nor did Pilot renew the RV permit when it expired in September 2012 and for the mobile homes in September 2013. In 2014, the Board became aware that Pilot continued to use the property for temporary housing after the expiration of Western Petroleum’s permit. Pilot was out of compliance on 40 RVs, seven mobile home units, and two two-story framed houses on the property that were not permitted under Western Petroleum’s conditional use permit. The Board assessed a $29,635,000 penalty against Pilot for violating the temporary housing regulations during the period of noncompliance until June 10, 2014, calculating the penalty by treating each non-permitted use as a violation subject to a $1,000 penalty per day.

On appeal, Pilot argued that the Board acted in an arbitrary, capricious and unreasonable way by penalizing Pilot $29,635,000 for violating Williams County’s temporary housing regulations. The court found the temporary housing regulations required an applicant for a conditional use permit to indicate the number of proposed housing units; however, the Board did not issue a separate permit for each housing unit on the property. Instead, the Board issued a single permit regardless of the number of housing units on the property. Moreover, the plain language of the regulations stated the penalty for violating the provisions is $1,000 per violation. Here, the Board only penalized Pilot for violating the conditional use permit provision. Accordingly, the court determined that Pilot was only subject to a $1,000 penalty per day for violating the conditional use permit provision.

Western Petroleum, LLC and Maxum Petroleum Operating Company, Inc.v  Williams County Board of Commissioners, 2016 WL 7368813 (ND 12/20/2016)

In 2012, White Mountain Health Center, Inc. sought county zoning approval to establish a medical marijuana dispensary (“MMD”) pursuant to the Arizona Medical Marijuana Act (“AMMA”), of Arizona Revised Statutes (“A.R.S.”) sections 36-2801 to -2819.  Maricopa County refused to issue the necessary zoning documents and White Mountain filed suit. In this consolidated appeal, Appellants sought reversal of the Superior Court’s partial summary judgment for White Mountain and denial of the Appellants’ motions for summary judgment, in which the court held that the Controlled Substances Act (“CSA”), did not preempt the AMMA. The Superior Court also determined that the County’s Second Text Amendment violated the AMMA because it limited MMDs to IND-3 zones, none of which existed in CHAA 49, and because it prohibited any land use in violation of federal law. Lastly, the Superior Court determined that the doctrine of automatic revival did not apply to revive the First Text Amendment; thus, upon striking the Second Text Amendment, there were briefly no zoning restrictions for MMDs in unincorporated Maricopa County until the County adopted the Third Text Amendment.


It was undisputed that the AMMA empowered the Arizona Department of Health Services (“ADHS”) to establish the system to register MMDs throughout the state and track compliance with statutory requirements. Under the AMMA, ADHS was required to approve at least one MMD per county, but no more than one MMD for every ten pharmacies in an area. As an initial matter, the court found that the AMMA’s provisions at issue here did not amount to “significant and unsolvable obstacles to the enforcement” of the CSA. The court therefore rejected White Mountain’s contention that Obstacle Preemption applied. Likewise, the court rejected the County’s assertion that it would be impossible to comply with both the CSA and the AMMA, and that by issuing the necessary zoning documents pursuant to the AMMA, County officials might face criminal prosecution for aiding and abetting MMDs’ violations of the CSA. In reaching this decision, the court found that the CSA did not expressly prohibit a county official from abiding by the AMMA in issuing zoning documents, and the state law required such conduct.


The two provisions of the Second Text Amendment which were at issue in this appeal were that: no acts may take place in any zone which were in violation of federal law; and MMDs were limited to IND-3 zones. The court held that because the Second Text Amendment’s provision barring any conduct in violation of federal law as applied to MMDs was in conflict with the limitation on zoning authority in the AMMA, the Superior Court did not err in striking that portion of the Second Text Amendment solely as it applied to MMDs. The court found this amounted to a local jurisdiction attempting to ban MMDs under the guise of “reasonable zoning” by authorizing MMDs in an area but then adding a poison pill to that use, prohibiting an MMD from conducting business in violation of any law. Accordingly, the court found that any permissive nature of the Second Text Amendment applying to MMDS would also be struck, and that the Superior Court correctly held that the State should process White Mountain’s application because there were no longer any AMMA-compliant zoning regulations. As such, the court affirmed all of the judgments entered for White Mountain, with the exception of the Superior Court’s award of sanctions of $5000 against the County.


White Mountain Health Center v Maricopa County, 2016 WL 7368623 (AZ App. 12/20/2016)

 

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