Appellee–Petitioner’s Ark Park, LLC filed a complaint against the Town, seeking judicial review of the Town Council’s zoning decision and requesting a declaratory judgment regarding both the zoning status of Ark Park’s property and the constitutionality of a zoning ordinance. Ark Park attached some documents to its complaint but did not file the board record or request an extension of time to file the record within thirty days as required by the applicable judicial review statute. The Town filed a motion to dismiss Ark Park’s claim for judicial review and declaratory judgment. The trial court denied the Town’s motion to dismiss, allowed Ark Park to amend its complaint, and gave Ark Park additional time to transmit the board record. Appellants–Respondents, Town of Pittsboro Advisory Plan Commission and Town of Pittsboro Town Council then brought this interlocutory appeal.

In 2004, the Town Council adopted an ordinance that set forth the zoning for the Town of Pittsboro, which contained a section, Section 13, relating to a Planned Unit Development (“PUD”). Section 13 set forth the specific requirements and process for applying for a PUD, which included submitting a concept plan and a master plan for the development. About seven years after the approval of Ark Park’s concept plan, Ark Park submitted a PUD master plan application to the Town Council. Because Ark Park submitted this master plan application more than two years after the approval of its concept plan, Ark Park was required, pursuant to Section 13(C)(4) of the 2004 Zoning Ordinance, to resubmit its concept plan for approval. On November 20, 2012, the Town Council, after holding a public meeting, issued a decision to deny Ark Park’s 2012 PUD Concept Plan Application.

Despite Ark Park’s concession that it failed to comply with the statute, Ark Park contends that it is still entitled to judicial review because the copies of the documents that it attached to its complaint were “sufficient to permit review of the case on the merits. However, Ark Park neither transmitted the board record nor sought an extension to file it within thirty days of filing its complaint for judicial review. As a result, the court found it was not entitled to judicial review of the Town Council’s 2012 Decision.

Next, Ark Park asserted that Section 13 was unconstitutionally vague, and also alleged that Section 13 established an unconstitutional denial of due process and an unconstitutional taking of property without just compensation because the provision regarding resubmitting a concept plan “potentially traps an applicant in the status of having PUD zoning without an approved concept plan.” Here, Ark Park’s claim for declaratory judgment challenged the constitutionality of Section 13 of the 2004 Zoning Ordinance based on the Town Council’s denial of its 2012 PUD Concept Plan Application. As such, Ark Park was attacking the zoning ordinance as applied to its property as a result of the Town Council’s 2012 Decision and that it is not challenging the ordinance as void in its entirety. Accordingly, the court held that Ark Park’s specific constitutional challenge was not a proper claim for declaratory judgment. The court therefore reversed the trial court’s order denying the Town’s motion to dismiss, and directed the trial court to strike these claims from Ark Park’s complaint.

Town of Pittsboro Advisory Plan Commission v Ark Park, LLC, 26 N.E. 3d 110 (IN App. 2/12/2015)

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/02121502rrp.pdf

Petitioners owned property adjacent to property owned by respondents Rosa Kuehn and Perry Kuehn, on which respondent K–Tooling operated an industrial manufacturing business as a nonconforming use. The lower court determined that K–Tooling and the Kuehns unlawfully expanded their nonconforming use by constructing an addition onto the manufacturing facility in 2001 after a zoning code was enacted prohibiting manufacturing use in the zone in which the property was located. The court and issued an injunction prohibiting use of the addition for any nonresidential purposes. Respondents applied for and received a use variance from respondent Village of Hancock Zoning Board of Appeals allowing the continued use of the addition in the manufacturing process. Petitioners commenced this CPLR article 78 proceeding to annul the ZBA’s determination, arguing that respondents failed to establish an unnecessary hardship warranting a use variance for the addition. The Supreme Court dismissed the petition, prompting this appeal.

The court first discussed that an applicant for a use variance bears the burden of demonstrating, among other things, that the property cannot yield a reasonable return if used for any of the purposes permitted as it is currently zoned. Such an inability to yield a reasonable return must be established through the submission of “dollars and cents” proof with respect to each permitted use. Despite this, Perry Kuehn’s bare conclusory statements that an additional “10 to 20 percent” of revenue would be needed to find a similarly sized location to house the older manufacturing equipment, and that “we would go out of business” without the addition, were insufficient to constitute the requisite “dollars and cents” proof necessary to demonstrate an inability to realize a reasonable return. Because there was insufficient proof, the court held that the ZBA should not have granted the variance.

Nemeth v Village of Hancock Zoning Board of Appeals, 2015 WL 1565749 (NYAD 3 Dept. 4/9/2015)

The opinion can be accessed at http://www.courts.state.ny.us/ad3/

 

The Plaintiff, 545 Halsey Lane Properties, LLC commenced this action pursuant to 42 U.S.C. § 1983 against the Defendants Town of Southhampton, Town of Southhampton Planning Board, and the members of the Planning Board in their individual capacities. The Plaintiff challenged two decisions by the Planning Board involving conditional approvals of the Plaintiff’s applications for a building permit for the construction of a barn and/or barns on its property. The Plaintiff also commenced two related state court proceedings pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”) to challenge the decisions of the Planning Board as affected by errors of law, arbitrary and capricious decisions, abuses of discretion, and decisions not supported by a rational basis. On August 19, 2014, the Court denied the Defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction; failure to state a claim upon which relief can be granted, and, as to the individual defendants, on the basis of qualified immunity. On September 16, 2014, the Court dismissed the Plaintiff’s substantive due process claim and dismissed the Plaintiff’s breach of contract claim, declining to exercise supplemental jurisdiction over it. The Plaintiff appealed that order to the Second Circuit, while the Defendant made a motion of reconsideration of the August 19, 2014 order.

In this case, the Defendants sought dismissal of the complaint as against the individual defendants on the basis of qualified immunity on the basis that the individual defendants were performing a “discretionary function.” Thus, the question of whether the individual defendants are entitled to qualified immunity may be decided as a matter of law and the undisputed facts. For this reason, the court erred, at the motion to dismiss stage, in declining to decide the issue of qualified immunity. Accordingly, the Court held it would entertain a motion for partial reconsideration of that part of the August 19, 2014 Order denying the Defendants’ motion to dismiss the complaint as against the individual defendants on the basis of qualified immunity, on the condition that the Defendants withdraw their notice of appeal without prejudice within 14 days of the date of this order.

The court rejected the Defendants’ ripeness argument, finding that the Resolutions issued by the Planning Board, which was not appealable to the Town’s Zoning Board of Appeals, constituted “final, definitive positions as to how it could use its property,” sufficient to establish the ripeness of its Equal Protection claim. As to the qualified immunity claim, the court found the members of the Planning Board could not be deemed to have violated “clearly established law” under the Town Code. Furthermore, even if they could be deemed to have violated “clearly established law,” the Court determined that their actions were objectively reasonable under the circumstances. Thus the Court granted in part and denied in part the Defendants’ motion for reconsideration of the August 19, 2014 order.

545 Halsey Lane Properties v Town of Southampton, 2015 WL 1565487 (EDNY 4/8/2015)

Leonard Dewitt sued the City of Greendale, Indiana, and ten City officials under 42 U.S.C. § 1983, principally claiming that his home and land were taken without just compensation in violation of the Fifth and Fourteenth Amendments. In 1999, Dewitt purchased a modular home on the land had been vacant and neglected for some time. Over the next five years, Dewitt made substantial repairs, including replacing the roof, rebuilding the foundation, and installing pipe for connection to the City’s sewer system. The work stopped in 2004 when Dewitt was arrested and detained in the county jail, and in June 2005, he leased the vacant property to Jeanne Akeman, who hoped to continue making repairs. Two months later the City, through its Department of Unsafe Buildings, notified Dewitt that within 90 days he must remedy the ordinance violations or else remove his modular home. After repeated extensions for repairs to be made, the City demolished the home. The City obtained a judgment against Dewitt for the demolition costs and later foreclosed on the land (valued by Dewitt at $25,000) to satisfy that $2,892 judgment.

Dewitt first brought his claims in federal court, which were dismissed. He then brought his claim to the district court, which granted summary judgment for the defendants on the ground that the suit was barred by claim preclusion and the statute of limitations. Dewitt tried again in state court in January 2011; this time the court, although dismissing the suit with prejudice, explained that it lacked “jurisdiction to hear” the case because Dewitt had not sought timely judicial review of the Hearing Authority’s order, and the appellate court affirmed. This court found that Dewitt’s equal-protection claim is precluded by his first federal lawsuit, since under federal law a second suit is barred by a previous action if there is “(1) an identity of the causes of actions; (2) an identity of the parties or their privies; and (3) a final judgment on the merits.” Here, the first two conditions were clearly satisfied, as was the third because the dismissal of Dewitt’s equal-protection claim at screening was a judgment on the merits for purposes of federal claim preclusion. Additionally, by failing to seek review of the Hearing Authority’s order in a timely fashion, Dewitt forfeited his related due-process and takings claims. Thus, the dismissal of Dewitt’s claims was affirmed.

DeWitt v City of Greendale, 2015 WL 1534483 (7th Cir. 4/7/2015)

The opinion can be accessed at: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D04-07/C:14-3375:J:PerCuriam:aut:T:npDp:N:1530264:S:0

Axelson owned the Hidden Valley Campground located in Goodhue County. From 1982 until 2012, the campground operated under a CUP that permitted a campground containing 20 mobile home park sites and 200 camp sites, provided that the campground “not encompass any further area.” After a flood destroyed several campsites, Axelson petitioned the county to modify the CUP to allow for additional campsites, but the board denied his application. Two years later, Axelson applied to amend the CUP to permit 100 additional sites and to install a septic system, and the board denied his request again. Respondent Goodhue County Board of Commissioners revoked the conditional-use permit (CUP) governing the Hidden Valley Campground after it determined that pro se relator Cory Axelson expanded the size and location of the campground in violation of the CUP’s condition that the campground not encompass any further area.

The board considered a “Resolution of Revocation,” citing five reasons to revoke the CUP: (1) “Unauthorized Expansion of the Campground,” (2) “Relocation of the Campsites and Campground Roads,” (3) “Exceeding two hundred (200) campsites,” (4) “Operating a campground without a License,” and (5) “Lack of a valid State Disposal System (SDS) Permit.” The court found that the board did not act unreasonably in determining that the campground now encompasses a greater area. Because it could affirm the board’s decision on the basis of a single reasonable stated rationale, the court did not address the board’s remaining justifications for terminating the CUP. As to Axelson’s due process claim, the court held that the board provided Axelson with sufficient protections to ensure that it considered his viewpoint before voting to terminate the CUP, and therefore did not violate Axelson’s right to due process. Accordingly, the court upheld the board’s decision revoking the conditional-use permit.

Axelson v Goodhue County Board of Commissioners, 2015 WL 1514160 (MN App. Unpub. 4/6/2015)

The opinion can be accessed at: http://mn.gov/web/prod/static/lawlib/live/archive/ctapun/2015/opa141179-040615.pdf

The Town’s Land Use and Development Code of 1995, Article 3, section 316.7, as amended in 1997, permits a maximum of two signs of up to fifty square feet in size on property zoned Rural–Agricultural (“RA”). In early 2009, Beck began erecting large signs on his property, which is zoned RA and includes approximately eight-tenths of a mile of frontage along Route 222 in Groton, New York. In June of that year Coats, the Code Enforcement Officer, met with plaintiff and requested that he remove the signs that exceeded section 316.7’s limits, and Beck refused. Coats then issued a “Notice of Violation–Order to Remedy” directing plaintiff to remove all signs from his property that were in excess of that permitted by section 316.7. Following this, Coats, in his official capacity, made a criminal mischief complaint to the Tompkins County Sheriff’s Department regarding swastikas displayed on Beck’s signs. Coats, who drove by Beck’s property every day on his way to work, informed the Sheriff’s officer that he thought “the person who did it is targeting him” and noted the ongoing litigation between him and Beck. One of the signs read “GARY COATS BELONGS IN PRISON” and had two large swastikas on it, which Beck also refused to take down or paint over. Plaintiff filed a pro se complaint, in which he alleged that the defendant Town of Groton and its officials violated his constitutional rights by issuing numerous citations related to large signs he had posted on his private property located within the Town.

The court first found that Section 316.7 of the Town Land Use and Development Code was content-neutral on its face because it regulated the size and number of signs permitted on certain property, and its application was not dependent on the content of the sign. Here, Beck presented sufficient credible evidence to show he was treated differently than his neighbor, Robert Fouts. The Town consistently and repeatedly enforced section 316.7 of the Land Use and Development Code against Beck; however, it did not bring any enforcement action against Fouts related to the two large signs posted on his property, which was located within two miles of plaintiff’s property. The totality of the circumstances suggested Coats acted with ill will and bad faith towards plaintiff when he contacted the Sheriff’s Department. Accordingly, the court found Beck established by a preponderance of the evidence that the Town selectively enforced section 316.7 of the Land Use and Development Code in violation of his right to equal protection of the laws and in such a way as to interfere with his right to free speech, and awarded him compensatory damages.

Beck v Town of Groton, 2015 WL 1499506 (NDNY 4/1/2015)

The opinion can be accessed at: http://www.newyorklawjournal.com/id=1202723034693/John-A-Beck-Plaintiff-v-Town-of-Groton-Defendant-511CV420

See also, http://www.newyorklawjournal.com/id=1202723075219/Upstate-Town-Faulted-for-Violating-Mans-Free-Speech-Rights

Respondent Living Word Bible Camp (LWBC) purchased 283 acres of property on Deer Lake in Itasca County with the intention of building a youth bible camp in a “cluster” development that encompassed fewer than six acres of the property. LWBC applied for a conditional-use permit (CUP) and a planned-unit-development permit (PUD) in 2006, but the applications were suspended for the duration of an environmental review conducted by Itasca County. The commission concluded that the CUP and PUD should issue because LWBC had complied with the relevant county ordinances. The LWBC submitted a final site plan, which began the review process to determine whether the commission should grant approval of the final planned-unit-development permit (FPUD). When the commission approved the FPUD, relator Pamela J. Brown and a group of 34 area residents (Brown), and relator Holly Newton sought review of the CUP/PUD decisions. The two appeals were consolidated, and Brown and Newton then filed separate appeals to challenge the commission’s FPUD decision.

The court found that the CUP and PUD comprehensively addressed each of the areas mandated by the relevant Itasca ordinance. Although the commissioners’ decisions were facially valid, relators raised numerous arguments to challenge them. Brown and Newton argued that the CUP/PUDs violated the project parameters either sought by LWBC or established in the environmental-review process. However, the CUP specifically required LWBC to enter into covenants to preserve at least 50% open space on the property, which it had done. Newton also argued that the CUP/PUD impermissibly authorizes “possible future commercial development of ‘open space,’ less than ‘in perpetuity’ protection of ‘open space,’ and does not prohibit commercial use of ‘open space.’ “ This argument failed because the LWBC had entered into a 2006 open-space covenant, which required “preservation of open spaces … of at least fifty percent (50%) of the total project area” and adherence to Ordinance § 9.48(A), which requires “preservation and maintenance in perpetuity of open spaces.” Finally, the planned uses were consistent with the conservation-easement mandates because although the conservation easement prohibited commercial development “of any kind” on easement property, it specifically allowed recreational uses of the property, including establishment of trails for “firebreaks, walking, horseback riding, [and] cross-country skiing.”

Pursuant to Article IX of the ordinance, following submission of the final plan to the commission, the commission must meet to review the final plan and verify that said plan has incorporated all changes of the preliminary plan required by the Commission; otherwise, it shall conform to the preliminary plan. The 19-page FPUD decision included numerous, comprehensive findings to satisfy each of the ordinance requirements. The decision also specifically addressed “concerns and objections” raised by relators and others, and responds to those issues in detail. The court found that the commission complied with this process, and therefore affirmed its decision.

In Re: Application of Living World Bible Camp for a Condition Use Permit and Planned Development Permit, 2015 WL 1513936 (MN 4/6/2015)

Plaintiff Planet Aid is a nonprofit charitable organization established in Massachusetts with the purpose to “work to strengthen and organize communities, reduce poverty and promote small enterprise development, support sustainable local food production, improve access to training and quality education, and increase health awareness and encourage healthy lifestyles.” To meet this goal, Planet Aid solicits donations of clothing and shoes through its unattended, outdoor donation bins, and then distributes the items collected from the bins to organizations in other countries. The City declared two of Planet Aid’s bins a public nuisance and removed them. The St. Johns City Council then voted to adopt Ordinance # 618, which stated: “No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns” and a grandfather clause: “A donation box that exists on the effective date of this ordinance shall not be subject to the prohibition contained herein.” (5.518(1)(d)). On February 14, 2014, Planet Aid filed a complaint in the district court, alleging that Ordinance # 618 violated Planet Aid’s First Amendment rights because it infringed on Planet Aid’s protected speech of charitable solicitation and giving. Defendant City of St. Johns now appeals the district court’s order preliminarily enjoining the enforcement of the City’s Ordinance # 618.

The court first discussed that although the Supreme Court had not addressed the status of unattended donation bins, the Fifth Circuit had in National Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202 (5th Cir.2011). In that case, the Fifth Circuit held the speech of charitable donation bins may not be unidirectional, either-a citizen faced with a choice among several bins from different charities may be inspired to learn more about each charity’s mission in deciding which charity is consistent with his values, thus influencing his donation decision. In this way, donation bins in many respects mirror the passive speaker on the side of the road, holding a sign drawing attention to his cause. Accordingly, this speech regarding charitable giving and solicitation is entitled to strong constitutional protection, and government regulations of protected speech are subject to strict scrutiny only if they target the protected speech by being content-based.

Here, the ordinance did not ban or regulate all unattended, outdoor receptacles, only those unattended, outdoor receptacles with an expressive message on a particular topic: charitable solicitation and giving. Thus, Ordinance # 618 is content-based and strict scrutiny was applied. The ordinance preemptively and prophylactically prevented all charities from operating outdoor, unattended donation bins within the City in the interest of aesthetics and preventing blight. Accordingly, it was not narrowly tailored to promote a compelling Government interest. The holding of the district court was therefore affirmed.

Planet Aid v City of St. Johns, 2015 WL 1616242 (6th Cir. 4/6/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/us-6th-circuit/1697004.html

City of Gulfport, Mississippi for the operation of an adult entertainment retailer. Artz already had signed a lease for commercial office space and had generated a business plan. But, the new zoning regulations prevented Hotboxxx from opening its adult business at the location where it had obtained a lease. Hotboxxx brought an action against the city, challenging the constitutionality of the city zoning ordinance, which restricted areas of town in which adult businesses could be located. The City removed the action from the Chancery Court to federal court. The federal District Court dismissed the action for lack of standing. Hotboxxx then filed an amended complaint, contending it had standing to sue because, under the Mississippi standard for standing, it had a colorable interest. The district court dismissed the case for lack of standing without prejudice, finding that, under the federal standing requirements, Hotboxxx’s claim was “speculative and hypothetical” because it was undisputed that the application was not complete.

Hotboxxx filed a new complaint in the Chancery Court, citing the same issues from in the first suit. Gulfport then filed a Motion to Dismiss under the principle of res judicata. Hotboxxx responded to the Motion to Dismiss, claiming that dismissal without prejudice did not preclude a second suit and that standing requirements are different for Mississippi. Additionally, Hotboxxx claimed that Gulfport has a ministerial duty to advise the applicant of any omissions in its application.  The Chancery Court dismissed with prejudice for lack of standing, stating that the application was incomplete. Further, under res judicata, it determined the instant case was different from the one originally filed, but all the material issues that this Court must address have already been addressed by the Federal District Court. Hotboxxx appealed.

The Mississippi Supreme Court affirmed and held that: 1) the lower court did not commit reversible error in finding that privilege license application was incomplete and invalid; and 2) the applicant’s initial status as lessor of commercial property located in area of city affected by ordinance did not create colorable interest required to confer standing.

On the matter of whether the license application was invalid, the court stated that they will not interfere with the findings of a chancellor unless the findings were “manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 166 (Miss.2011) The Chancery Court stated in its Final Judgment that it had “considered the testimony of parties and other witnesses as well as documentary proof and evidence and argument of counsel” and, further, that it had “judged and weighed the credibility and veracity of the witnesses and documentary evidence submitted” to conclude that Hotboxxx had not submitted a valid and proper application. This Court upheld the chancery court’s finding that the privilege license application was incomplete and invalid. Further, the application was missing the required signature by Hotboxxx and was not notarized or completed by a member of the General Finance Department. The instructions required the application to be signed in the presence of the General Finance Department or otherwise notarized. Artz testified he did not sign the application in the presence of the department, and it was not notarized. Thus, the application was not complete.

With respect to whether, regardless of the invalid application, Hotboxxx argued that its lease of the commercial building constituted a colorable interest, giving it standing to challenge the zoning ordinance. Hotboxxx stated that its chosen location for the business was in violation of the ordinance, and therefore, experienced an adverse effect from the enactment of the ordinance. The City argued that Hotboxxx did not have an injury because Hotboxxx submitted an improper application; therefore, regardless of the Ordinance, Hotboxxx was not able to engage in the business. The City then argued that the colorable interest claims by Hotboxxx did not prove an injury because they must be supported either with evidence found in the record or presented at trial, and Hotboxxx’s lease states it is void if it is unable to obtain a license.

Hotboxxx did not submit a valid license application, but maintained that it had signed a lease and claims it was fully registered as a business entity with a business plan. Although Hotboxxx may have been registered as a business with a business plan, the signed lease was the only evidence linking Hotboxxx to the zone of the city affected by the ordinance. The Court also has held that “Any property owner or person having an interest in property which is or may be affected by a permit or variance illegally issued or denied is an aggrieved party and may apply to the court for relief.” Belhaven Improvement Ass’n, Inc. v. City of Jackson, 507 So.2d 41, 46 (Miss.1987) The court stated that although Hotboxxx had an interest in land affected by the ordinance, when Hotboxxx failed to submit a valid application and failed to obtain a license, the lease became void, and Hotboxxx no longer had an interest in the land. Here, Hotboxxx’s lease was pendent on obtaining the appropriate licenses. The chancery court held the application for the privilege license to be invalid. Thus, the lease was void, and Hotboxxx had no interest in the land, and therefore, under Mississippi case law, no standing.

Hotboxxx, LLC v City of Gulfport, 154 So 3d 21 (Miss. 1/8/ 2015)

The opinion can be accessed at: http://caselaw.findlaw.com/ms-supreme-court/1689158.html

Landowners who lived between 1,300 and 3,200 feet from a wind turbine known as “Wind 1” that was installed on town land at its wastewater treatment facility (“WWTF”), alleged significant distress from sound pressures and noise from the operation and sought an enforcement action by the Town of Falmouth’s building commissioner asserting that the town was in violation of town’s zoning by-law by operating the wind turbine without a special permit. The building commissioner denied the landowners’ request, and they appealed. The zoning board of appeals affirmed. The Superior Court affirmed, and landowners appealed.

At trial, the landowners had argued that the building commissioner and the ZBA incorrectly interpreted the by-law to allow the issuance of a building permit for Wind 1 without a special permit, citing § 240–166 of the by-law which provides that a petitioner may apply for a special permit to allow construction of a windmill. The judge, however, deferred to the opinion of the building commissioner, affirmed by the ZBA, that the by-law “does not apply in the limited circumstance where the Town itself desires to construct and operate a windmill for municipal purposes in a district where all such purposes are permitted as of right.” The court stated that in reaching the decision that a special permit was not required, the building commissioner determined that Wind 1 is a “municipal purpose” that falls within the enumerated community service uses permitted as of right in § 240–30B of the by-law, which includes: “All municipal purposes, including the administration of government, parks, playgrounds, recreation buildings, Town forests, watershed, water towers and reservoirs, beaches, fire and police stations and armories.”

On appeal, the Court determined that as in other districts of the by-law, windmills are specifically designated in the public use district as an accessory use by special permit. Therefore it logically followed that windmills could not have been intended to fall within the more general municipal purpose as of right within § 240–30B of the by-law. Furthermore, § 240–18 of the by-law states that where an activity might be classified under more than one of the within uses, “the more specific classification shall govern; if equally specific, the more restrictive shall govern. Uses not classifiable under any category listed for the applicable district are prohibited, except that a use listed nowhere in Articles V through XIII may be allowed on special permit if the Board of Appeals determines that it closely resembles in its neighborhood impacts a use allowed or allowed on special permit in that district.” Furthermore, § 240–17 of the by-law states: “No building or structure shall be erected, altered or extended and no premises shall be used, except as provided in Articles V through XIII, the district use regulations.”

The Court noted the classification of windmills as a permitted municipal purpose failed to consider § 240–33G(5), which is part of a comprehensive scheme to include wind turbines in the by-law and control their placement and impact in the town. Courts are not to look at provisions of a by-law in isolation; they must read them contextually. Windmills were added as Art. XXXIV of the by-law by an amendment authorized by a vote of the town meeting on September 10, 1981. The public use district, identified as art. VII, was amended to include windmills as a special permit use in § 240–33G(5) of the by-law, and the ZBA is the permit-granting authority.

Because the by-law does not contain any exemption for the town from its provisions, it is apparent that the decisions of the ZBA and the Superior Court judge, which relied on an incorrect interpretation of the by-law, are not entitled to deference.

The landowners also asserted that the town failed to obey the use permit requirements in § 240–166D of the by-law which requires considerations of potential impacts on neighbors as well as safety in the operation of windmills, and it appears that many of the requirements are specific to wind turbines and are not found in local or Massachusetts building codes. The building commissioner testified that he issued a conventional use and occupancy permit and did not assert that such a permit indicated compliance with the requirements of § 240–166D. The Court held that the Town must also comply with these requirements.

Drummey v. Town of Falmouth, 2015 WL 790013 (MA App. 2/26/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/ma-court-of-appeals/1693214.html

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