This post was authored by Matthew Loeser, Esq.


Petitioner, a citizen of Hood River, sought review of a Land Use Board of Appeals (“LUBA”) order that affirmed the City of Hood River’s decision to approve a quasi-judicial zone change to a city park from Open Space/Public Facilities (“OS/PF”) to Urban High Density Residential (“R-3”). On appeal, petitioner contended that LUBA erred in granting the city deference, as the city’s interpretation of the policy was inconsistent with the policy’s express language, purpose, and underlying policies.
The record reflect that the city interpreted Goal 8 Policy 1 as calling for the protection of park sites from incompatible uses on nearby properties that could adversely affect the parks, rather than precluding incompatible uses on the park sites themselves. Specifically, the city determined that Goal 8 Policy 1 did not prevent the rezoning of Morrison Park from OS/PF to R-3, since rezoning the park did not constitute an incompatible use on nearby land. While the city did not dispute that it had a duty under this policy to protect existing park sites from incompatible uses, it argued that its duty to protect was limited to regulating uses on nearby properties, and did not extend to regulating the use of park sites themselves. The court found that the city’s interpretation added language to the express text of Goal 8 Policy 1 to limit the preservation of parks, which was inconsistent with Goal 8 Policy 1’s mandatory text, “existing park sites will be protected from incompatible uses”
Here, Goal 8 Policy 1 does not limit the scope of its applicability, and a plain and natural reading of the policy suggests that there are no limitations on the phrase “incompatible uses.” By narrowing the application of the policy to apply only to nearby properties, the city’s interpretation allows for incompatible uses within existing park sites.  LUBA’s order deferring to the city’s interpretation of Goal 8 Policy 1 is unlawful in substance, and we reverse and remand.
Crowley v City of Hood River, 294 OR. App. 240 (9/26/2018)


This post was authored by Matthew Loeser, Esq.

Sidney Pinkham owned property in the Town of Glenburn from December 22, 2016, through August 18, 2017. In that time, the mobile home located on the property had plumbing fixtures installed but was not connected to a sewage disposal system. Additionally, the plumbing fixtures were not supplied with potable running water, and a portable toilet was used as a substitute for a permanent toilet. The Town filed a land use citation and complaint in the District Court, alleging that Pinkham’s property was in violation of a wastewater disposal rule promulgated by the Department of Health and Human Services, and sections 305 and 601 of the Uniform Plumbing Code. The court ordered Pinkham to maintain the property in compliance with regulatory requirements by supplying the dwelling structure with pressurized water and with a subsurface wastewater disposal system, and ordered Pinkham to pay a $23,900 civil monetary penalty and reasonable attorney fees.
On appeal, Pinkham argued that the court violated his right to procedural due process and abused its discretion during the hearing on the Town’s complaint by allowing one of the Town’s witnesses to testify by telephone, and by failing to exclude two hearsay statements on its own initiative. The court found that the circumstances necessitating the call constituted good cause, and the court safeguarded Pinkham’s right to cross-examine the witness. Additionally, the court did not commit an error in not excluding, sua sponte, testimony from the Town’s Code Enforcement Officer concerning two out-of-court statements made by the witness who testified telephonically. Here, the Town did not offer the witness’s prior statements for their truth, but instead offered them to authenticate the witness’s affidavit as part of that witness’s telephonic testimony to demonstrate that the witness’s prior statements concerning violations had the effect of prompting the Code Enforcement Officer to inspect Pinkham’s home. Moreover, the court found that the statements were merely cumulative of the live telephonic testimony, which rendered their admissibility harmless even if the statements were considered hearsay.


Pinkham next contended that the court erred in not making explicit findings addressing the statutory factors to be considered in setting the amount of a civil penalty. Here, while the evidence in the record supported the court’s ultimate finding that Pinkham allowed the alleged plumbing and subsurface wastewater disposal violations to occur on the property, the record was absent of any mention of a “municipal order to stop,” or any other notice to the landowner that he was in violation of the ordinance. As such, the imposition of the $23,900 civil penalty was vacated. Despite this, because evidence the violations occurred was fully supported by the record, the award of attorney fees was affirmed.
Town of Glenburn v Pinkham, 195 A. 3d 1226 (ME 10/30/2018)

This post was authored by Matthew Loeser, Esq.

The City of Johnstown’s code enforcement officer, LeRoy Palov, observed three uninspected and unregistered vehicles on Lawrence Brandon’s property, each in a state of disrepair and covered with weeds. Palov cited Brandon for a violation of Section 302.8 of the “International Property Maintenance Code” of the City of Johnstown, and filed a private criminal complaint. The magisterial district judge found Brandon guilty after a summary trial. After a de novo hearing, the trial court found Brandon guilty and sentenced him to pay a $100 fine, plus costs.

On appeal, Brandon contended that the proceeding against him should have been commenced by an enforcement proceeding under Section 616.1 of the Pennsylvania Municipalities Planning Code (“MPC”), 53 P.S. § 10616.1, with the zoning hearing board having exclusive jurisdiction. As Brandon did not raise this issue before the trial court, the court found this issue was waived. Even if the arguement was not waived, however, the Johnstown Zoning Code provided that in the event of a “zoning ordinance violation”, the City may only commence  a civil enforcement action. Conversely, a violation of the Property Maintenance Code – as was the case here- was punishable by imprisonment or payment of a fine in a criminal proceeding.

Next, Brandon argumed that the complaint filed against him was defective because the caption read “Brandon Lawrence.” Despite this error, subsequent documents, including the summary appeal docket, correctly identified Lawrence Brandon as the appellant. Additionally,  Brandon did not contest that he owned the property or that the vehicles were on the property at the summary appeal hearing, As such, the court rejected this claim.
Brandon’s final contention was that Section 302.8 of the Property Maintenance Code could not be enforced because it was “deleted.” Again, the court found Brandon failed to raise this issue before the trial court, and the issue was therefore waived.  Notwithstanding this, the court noted that its own research indicated that Section 302.8 of the 2009 edition of the Property Maintenance Code had not been repealed and remained in force. Accordingly, the trial court’s holding was affirmed.

Commonwealth of Pennsylvania v Brandon, 2018 WL 6164815 (PA Commwlth 11/26/2018)

This post was authored by Matthew Loeser, Esq.

Plaintiffs Mary Ann Dellinger and Carmen Tomeo commenced this action against defendant seeking relief, pursuant to 42 U.S.C. §§ 1983, 1986, and Article I, § 6 of the New York State Constitution, for the alleged selective enforcement of the Huntington Town Code to devalue property owned by the plaintiffs. The Town of Huntington and the Non-Town defendants each moved to dismiss the Complaint, and plaintiffs cross moved for default judgment against the Non-Town defendants. The Dismissal Motions and Default Judgment Motion were referred to Magistrate Judge Gary R. Brown for a Report and Recommendation. The Magistrate Judge then recommended that the Default Judgment Motion be denied, the Motions to Dismiss be granted, and the Complaint be dismissed with prejudice.

Here, in finding all of Plaintiffs’ § 1983 claims fell outside of the applicable three-year statute of limitation, Magistrate Judge Brown rejected plaintiffs’  contention that their claims accrued upon the Town’s non-enforcement of its Code after the 2014 sale of the property. While plaintiffs cited the general proposition that a § 1983 claim “accrues when the plaintiff has a compete cause of action, or when the plaintiff can file suit and obtain relief,” the court noted the issue of that case was whether there were extraordinary circumstances, such as fraud or concealment, warranting the equitable tolling of plaintiff’s § 1983 claim . As the court found that no such extraordinary circumstances were present in this case, it held that accrual period did not apply.

The court found the relevant time period to be applied to plaintiffs’ § 1983 selective enforcement claims was at the time “the Defendants conspired to selectively enforce the Huntington Town Code to devalue the Property” such that the Non-Town Defendants could buy it “at less than market value,” as alleged by plaintiffs in their Complaint. Accordingly, plaintiffs’ claim accrued no later than the allegedly improper issuance of the Violation notice, or the purportedly improper statements to plaintiffs’ potential purchaser: both of which occurred outside the limitations period. As such, the court held that Magistrate Judge Brown’s Report was not facially erroneous, and it adopted in its entirely.

Dellinger v Town of Huntington, 2018 WL 6168181 (EDNY 11/26/2018)

The Town of Hamburg granted an application to rezone Wetzel’s parcel of land to allow the construction of a clustered patio-home project (project).  Neighbors appealed and the Supreme Court annulled decision. The appellate court found that the court below erred in annulling the rezoning determination based on the purported failure of the Town Board to comply with Town Law § 264.  Specifically, this Section of law requires a public hearing and an opportunity to be heard with at least 10 days notice.   Here, the notice indicated it was for 29.29 acres of vacant land rather than the 24.24 acres actually under consideration The Court noted, that “The sufficiency of the notice is tested by whether it fairly apprises the public of the fundamental character of the proposed zoning change. It should not mislead interested parties into foregoing attendance at the public hearing” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 N.Y.2d 668, 678 [1996] ).  The court said that, “Here, the notice relating to the rezoning application announced a public hearing on the adoption of an amendment to the Town’s Zoning Code with respect to a specified. We conclude, however, that the notice was sufficient and that the court therefore erred in failing to dismiss the fourth cause of action.”

Further, the Court found nothing in the record supporting the court’s conclusion that a member of the public could reasonably have been misled by the erroneous description of the acreage and thereby caused to fording the public hearing. The court also found that the record did establish that, before taking final action on the proposed rezoning, the Town Board did refer the matter to the Erie County Department of Environment and Planning (ECDEP) for review in compliance with General Municipal Law § 239–m, and the ECDEP’s failure to issue a recommendation within 30 days of “receipt of a full statement of such proposed action” permitted the Town Board to make a final determination on the rezoning application (General Municipal Law § 239–m [4][b]).

Lastly, the court agreed that petitioners failed to demonstrate that a “clear conflict” exists between the Town’s comprehensive plan and the rezoning determination.

Johnson v Town of Hamburg, 2018 WL 6714375 (NYAD 4 Dept. 12/21/2018)

This post was authored by Touro Law student Aisha Scholes ‘20

The Rochester City Council appealed the lower Court’s dismissal of their claims. The plaintiffs updated a local zoning ordinance which eliminated manufactured housing parks.  The Rochester Zoning Board of Adjustment heard a case in which a company, “Toys” requested a variance to expand their manufactured housing park.  This variance was requested after the plaintiff’s instituted the change to the zoning ordinance.  The defendants granted the variance request seemingly without the addition of Toys meeting their burden of proving unnecessary hardship.  The plaintiffs claim that the ZBA chairman is a longtime friend and associate of Toys. There may have been discussions about this transaction outside of an official meeting.  The Court held that the plaintiff did not raise the issue of a potential conflict in a timely manner. “The conflict of interest or potential bias issues must be raised at the earliest possible time in order to allow the local board time to address them.”

Rochester City Council v. Rochester Zoning Bd. of Adjustment, 194 A.3d 472 (NH 2018)


This post was authored by Touro Law student Aisha Scholes ‘20 

The Township of Bloomfield adopted Ordinance 3729, which appropriated $10,500,000 for the acquisition and improvement of a tract of land to be used as a public park, and authorized the issuance of $9,975,000 in Township bonds or notes to finance part of the cost. The subject property had previously been approved by the Township Planning Board for construction of a 104-unit townhouse development known as Lion Gate. The Ordinance was first introduced at a meeting chaired by defendant Nicholas Joanow, a Township Councilman, who owned a home that directly bordered the property. Joanow also cast the deciding vote approving the Ordinance. Plaintiffs Russell Mollica, James Wollner, Ray McCarthy, and Chris Stanziale, a group of Township residents, challenged the validity of the Ordinance and sought to enjoin the Township from issuing the bonds, alleging that Joanow had a disqualifying interest when he voted on the Ordinance. The trial court dismissed the neighbors’ claims. On appeal, Plaintiffs argued that Joanow should have recused himself from participating in any of the proceedings that led to the passage of the bond ordinance due to his ownership interest in property adjacent to the proposed public park that created a legally insurmountable conflict of interest. Defendants responded that Council member Joanow was “set to gain no more than all the residents of the Township who will benefit from the creation of the public park and maintenance of open space.” The court found that Joanow had a direct personal interest since he owned property directly abutting the Lion Gate site. The court held that his ownership of property immediately adjacent to the Lion Gate site was sufficient in itself to disqualify him from voting on the Ordinance. Furthermore, since the disqualifying interest of Joanow was in its subject matter of the Ordinance, the court found that the remedy was to invalidate the Ordinance.

Mollica v. Township of Bloomfield, 2016 WL 6068242 (NJ App. 10/2016), cert den. 2017 WL 658259 (NJ 2/13/2017)

This post was authored by Touro Law student Aisha Scholes ‘20

Applicants acquired a leasehold interest in land in Rome, on which land they sought to build a wireless communications tower. Rome regulates the siting of wireless towers via the “Town of Rome Wireless Telecommunications Facility Siting Ordinance” which requires applicants first to seek permission to build from the Rome Planning Board. After the Planning Board denied its application, appellants brought suit in District Court. The District Court granted the municipality’s motion to dismiss.  Their substantive due process claim alleged that certain Planning Board members, through their membership in the Belgrade Region Conservation Association (the “BRCA”), had a financial interest in conservation easements the BRCA held. The court found these vague allegations of conflicts of interest and financially motivated conspiracy were insufficient to show that the Planning Board acted in the kind of conscience-shocking fashion required for substantive due process challenges. Accordingly, the District Court’s dismissal of the case was affirmed.


Global Tower Assets, LLC v. Town of Rome, 810 F.3d 77 (1st Cir. 1/8/2016)

This post was authored by Touro Law student Aisha Scholes ‘20

Plaintiff challenged the validity of an ordinance allowing the construction of an assisted living facility next to a church due to the alleged conflicts of interest of two members of the Township council.  Specifically, Plaintiff, a property owner, argued that one member should have been disqualified for a direct personal interest in the outcome based on his comment that he might admit his mother to the proposed assisted living facility one day.  Additionally, Plaintiff argued that this same member and another member should have been disqualified on another ground that they were also members of the church and thus had indirect personal interests in the outcome.

As for the one member’s comment that he might seek to admit his mother in the proposed assisted living facility, the court held that this comment alone did not create a conflict of interest that would disqualify him from voting on the ordinance because there was no evidence that the mother depended on the construction of the facility for her care and the comment alone did not distinguish the member from any other person in the community who may or may not send their family members to the facility one day.  The court remanded this issue so that the trial court could develop the record as to whether the comment revealed an actual personal interest.

As for the other ground, the court held that when an organization “owns property within 200 feet of a site that is the subject of a zoning application, public officials who currently serve in substantive leadership positions in the organization, or who will imminently assume such positions, are disqualified from voting on the application.”  The court clarified that the church’s interest in this ordinance is not automatically imputed to all its members but only to those members who occupied a position of substantive leadership.  The court remanded on this issue so that the trial court could determine whether the two members held substantive leadership positions in the church.

Grabowsky v. Twp. of Montclair, 115 A.3d 815, 817 (2015)

This post was authored by Matthew Loeser, Esq.

Petitioners commenced a CPLR article 78 proceeding to compel the Zoning Board to file “corrected” minutes of two meetings held in connection with the Zoning Board’s November 21, 2014, determination. The petition alleged that the minutes of this meeting of the Zoning Board violated the Open Meetings Law as the Board falsely indicated that a vote approving the petitioners’ application for a parking variance was conditioned upon the Zoning Board’s counsel’s review of certain covenants and restrictions related to the application; however, no such condition was discussed at the time the vote was taken.
Here, consistent with the requirements of Open Meetings Law, the minutes of the meeting in question which were filed by the Zoning Board included a summary of the motion to approve the petitioners’ application and the vote on it. As such, the court found petitioners had no legal right to relief, and affirmed the Supreme Court’s determination to deny the petition to compel the Zoning Board to amend its minutes.
Voutsinas  Schenone, 2018 WL 5811759 (NYAD 2 Dept. 11/7/2018)

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