This post was authored by Matthew Loescher, Esq.

Plaintiffs Andrew Rice, Mary Neda Ann Shaub, and the Parker Family Trust owned an 80-acre parcel of land in Monroe Township, Ohio. In 2017, Plaintiffs Wilcox Investment Group, LLC and Wilcox Communities, LLC entered into a purchase agreement to buy the Parcel, contingent on the rezoning of the property. Wilcox’s plan was to create the “Concord Trails” planned unit development (“PUD”), a mix of attached condominiums, detached patio homes, and single-family lots. Plaintiffs’ Preliminary PUD Plan was submitted to the Planning and Zoning Commission (“P & Z Commission”), and was ultimately denied. Plaintiff then commenced this action and both sides moved for Summary Judgement.

In its motion, Plaintiffs claimed that Johnstown Ordinance 1179.02 determined how Plaintiffs could exercise their constitutional right to use their own property, and the violation of the same was sufficient to establish injury in fact. However, as the Parcel was not in the Village of Johnstown, Plaintiffs did not have a legally protected interest pursuant to the Johnstown Ordinance 1179.02. Without a right to relief, the court held that Plaintiffs failed to establish an injury in fact and lack Article III standing to bring their Due Process claim.

The court further found that Plaintiffs lacked standing because Johnson did not cause their alleged injury. Here, the court noted it was Plaintiffs’ calculated risk to pursue the Preliminary PUD Plan before the Parcel was annexed into the Village. The fact that Plaintiffs risk did not result in the outcome they desired was not caused by the alleged unlawful delegation to the P & Z Commission. Thus, the court determined that the move was a self-inflicted injury that failed the second standing prerequisite of traceability. Accordingly, the court granted the Defendant’s Motion for Summary Judgment.

Rice v Village of Johnstown, 2021 WL 632905 (SD OH 2/18/2021)

This post was authored by Matthew Loescher, Esq.

In this case, Asphalt Specialties Co., Inc. (“ASCI”) appealed the Laramie County Planning Commission’s decision denying ASCI’s 2018 site plan application for a hard rock quarry operation in Laramie County. On appeal, ASCI argued the Commission’s denial of the project “under the auspices of a Site Plan review” was unlawful under every subpart of Wyo. Stat. Ann. § 16-3-114(c)(ii).

The court first noted that it was undisputed that Laramie County had not zoned ASCI’s property and had no land use regulations governing quarries or mining operations. Nevertheless, the County had a comprehensive land use plan and LCLURs that require submission, review and approval of site use plans in regulatory areas, including the subject property. The court found the legal significance of regulations like LCLUR §§ 2-2-133 and 2-2-135 differed from the legal significance of properly adopted zoning regulations, and that counties that did not employ a traditional, zoned, land use system, could not grant or deny a permit restricting the use of that property. Accordingly, the court held that only after a county adopted zoning resolutions could it restrict a landowner from using land without obtaining a zoning certificate.

Absent such a zoning, the court held that the Commission could neither substitute public disapproval for legal authority to deny ASCI its proposed project, nor give the County’s comprehensive plan and LCLUR § 2-2-133 legal effect they did not have. Thus, the Commission exceeded its statutory authority when it utilized its comprehensive land use plan and the site plan review process to outright deny ASCI use of its land for a limited gravel mining operation. As such, the court reversed and set aside the Commission’s decision.

Asphalt Specialties Co., Inc. v Laramie County Planning Commission, 2021 WY 14 (2/1/2021)

This post was authored by Matthew Loescher, Esq.

Plaintiff-Appellant Ferncliff Cemetery Association appealed from a judgment in favor of Defendant-Appellee Town of Greenburgh, New York. In that decision, the District Court granted the Town’s motion to dismiss Ferncliff’s First Amended Complaint, which alleged constitutional violations principally arising from the Town’s denial of Ferncliff’s application for a building permit, for lack of subject matter jurisdiction on the ground that the claims were not ripe for review.

In its appeal Ferncliff contended that the District Court erred in concluding that its constitutional claims failed the first part of Williamson’s ripeness test, submitting that there was a final decision as to the parcel. The court rejected this contention, finding Ferncliff failed to allege that it sought or made an application for a variance after the Town’s Zoning Board of Appeals (“ZBA”) upheld the denial of the building permit. Rather than do this, Ferncliff appealed the ZBA’s decision in state courts, which affirmed the ZBA’s decision, and then filed a motion for leave to appeal to the New York Court of Appeals. While Ferncliff argued that its failure to obtain a final decision by way of making a variance application was excused by the doctrine of futility, Ferncliff failed to show that the entities charged with approving use variances lacked discretion to grant the relief it sought, nor had Ferncliff alleged that the ZBA has made clear that Ferncliff’s applications for relief by way of a variance would be denied. The court found that the subsequent actions by the Town Board and Tax Assessor alleged on appeal did not suffice as substitutes for evidence that the ZBA or the relevant entity had “dug in its heels and made clear that all such variance applications will be denied.”  Since Ferncliff had not obtained a final determination or demonstrated that the futility exception applied, the court held that Ferncliff’s federal constitutional claims were premature. Accordingly, the District Court did not err in dismissing Ferncliff’s claims for lack of subject matter jurisdiction on the ground of ripeness.

Ferncliff Cemetery Association, Inc. v Town of Greenburgh, 2021 WL 31948 (2nd Cir CA 2/1/2021)

This post was authored by Georgia Reid of Touro Law Center

Town residents and gun rights advocates are battling in court over the use of 30 acres of land in the town of Pawlet, Vermont.  The land was being used as a tactical shooting training facility called Slate Ridge.  According to Slate Ridge’s Facebook page, it is  an “Educational Consultant” that provides “solutions for a dynamic threat environment.”  What started as a zoning dispute over the area between Slate Ridge’s owner, Daniel Banyai (“Banyai”), and surrounding neighbors escalated into the town filing for an injunction on January 4, 2021.

The Town of Pawlet (“Town”) asked the Vermont Superior Court (the “Court”) to issue a preliminary injunction, barring Banyai from using his property as a school or firearms training facility until he applies for and receives the necessary municipal land use permits for such purposes. (source: Entry regarding Motion for Preliminary Injunction).  Banyai did not file a specific objection to the motion, but he made claims that could be read as challenges. 

Previously, Banyai received a notice of alleged zoning violation (“NOV”) which he did not timely appeal.  Since he did not file, the Court found that Banyai relinquished his right to challenge factual and legal representations in the NOV.  The Court assessed the NOV to determine whether the conceded facts warranted the granting of the requested preliminary injunction filed by the Town.

The primary allegations of the Town’s complaint in the NOV were that Banyai and his agents had erected buildings on the property without receiving the necessary zoning permits.  The buildings were being used as a “school or other uses.”  Banyai had not received prior approval for the buildings or their uses. 

At a merits hearing conducted on December 16, 2020, Banyai and his Attorney offered testimony and other evidence.  The merits decision is forthcoming and will come under advisement once the parties file reply briefs.  The deadline to do so was February 1, 2021. 

At the merits hearing, Banyai challenged the Town and its agents’ actions but did not contest the primary allegations in the Town’s complaint.  The Court found that Banyai also did not present credible evidence to contest the Town’s presentations that his operation of a tactical shooting facility, with one or more shooting ranges, had been the source of abutting neighbors’ concerns. Further, Banyai did not specifically contest the Town’s assertion that his use of the unpermitted buildings continued unabated through the date of the trial. Finally, Banyai made no effort to apply for or obtain the municipal land use permits necessary to authorize his buildings, other than the garage/apartment building previously approved.  In a New York Times article, Banyai said he prefers to ask for forgiveness rather than permission.  (https://www.nytimes.com/2021/02/23/us/vermont-gun-range-pawlet-zoning.html?smid=url-share).

As for the injunction, The Court wrote that an injunction “is generally regarded as an extraordinary remedy and [should] not be granted routinely unless the right to relief is clear.” Committee to Save the Bishop’s House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 218 (1978), (citing 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2942, at 368 (1973)). The Court had a 4-factor test on whether to grant an injunction: (1) the threat of irreparable harm to the movant; (2) the potential harm to the other parties; (3) the likelihood of success on the merits; and (4) the public interest.

Since Banyai did not get the applicable permits for his shooting range and developed the land before any necessary review under land-use regulations, the Court found that this left town officials and citizens with a complete lack of notice.  For this reason, the Court found that factor (4)  – public interest – was satisfied.  Since the activities on the shooting range affected neighbors, factor (2)  – the potential to harm other parties – was also satisfied.  As for factor (3),  the Court noted that it was currently undergoing deliberation of a merits decision, and therefore the Court gave that neutral weight in the analysis.  And for factor (1), the Court wrote, “It is difficult . . . to imagine an alleged zoning violation that could be the source of more significant irreparable harm than an unpermitted shooting range.”  For these reasons, the Court granted the Town’s request for the preliminary injunction.

Pawlet v Banyai, Docket No. 105-9-19 Vtec (VT Sup. Court 1/21/2021)

UPDATE: In a final ruling on March 5, 2021, Judge Durkin ruled that the notice of violation is still valid, and Banyai owes the town $100 for each of the 466 days since he was served. He must also hire a Vermont-licensed surveyor or engineer to complete a detailed site plan of his property, then deconstruct the buildings there. The court also continued the conditions of the injunction that was issued in January.

See, https://www.vermontjudiciary.org/sites/default/files/documents/Town%20of%20Pawlet%20v%20Daniel%20Banyai%20105-9-19%20Vtec%20M%20Prelim%20Injunction.pdf

This post was authored by Olena Botshteyn, Esq.

The Supreme Court concluded that the board of adjustment of Cerro Gordo county illegally granted an area variance for construction of a pergola in violation of setback requirements. The court vacated the judgment of the court of appeals and reversed the judgment of the district court, which previously made a distinction between the requirements for an area variance and a use variance, determined that a lesser showing was required for an area variance, and concluded that the variance was legal.

Sauls own a property located in a district zoned as R-3, single family residential district, in Cerro Gordo County, Iowa. The county ordinance requires to avoid construction in this district within a six-foot setback of property lines. Unaware of this requirement, Sauls constructed a pergola and a patio, which had a twenty-one inches setback. Property owners were then notified by the local planning and zoning administrator that their construction violated the zoning ordinance. Following these events, Sauls applied for a variance. The variance application form required an explanation of unnecessary hardship, which would be suffered if the variance was not granted. Sauls failed to provide the proper evidence of such hardship, as they did not provide the reasons why the property without a pergola cannot yield a reasonable use, what is unique about their property and merely stated that the pergola is a great use of space and would shade the front yard, which would allow to save energy. At the public hearing for a variance, the applicants did not provide any additional evidence of the unnecessary hardship, and although it was noted that there was no walking space between the patio and the neighboring fence, there were no complaints from the neighbors. Two of the board members concluded that a pergola was a nice addition to the neighborhood and granted a variance. The owner of the neighboring property then challenged the board’s action, the district court concluded that the board’s determination was legal and the court of appeals affirmed. The Supreme Court then reviewed for the correction of legal error.

The court concluded that the court of appeals erred in determining that standards for granting an area and use variance differed. When making its judgment, the court of appeals relied on Christenson case. This case explained the difference between two uses and stated that a lesser showing for an area variance is required, as an area variance does not involve a use prohibited by an ordinance, but is rather a deviation from certain requirements (such as setback requirements). Having stated that an area variance traditionally requires “a slightly lesser showing”, Christenson however did not adopt a proper standard.

The court then concluded that a Deardorf standard, which was mirrored in the county zoning ordinance shall be strictly applied here. By stating so, the court referred to legal academia, and particularly to Williams Hines, the former dean of the Iowa College of Law, who stated that regardless of different purposes of the area and use variance, “two-thirds of U.S. states, including Iowa, apply the same strict requirements for granting them both”. The court also referred to the relevant case law and determined that Deardorf standard was consistently applied in the past. Pursuant to this standard, it must be shown that if the variance is not granted, a land cannot “yield a reasonable return”, that the land is unique, and that the use “will not alter the essential character of the locality”. The court concluded that Sauls failed to meet this standard, as they did not provide sufficient evidence for either factor. They did not fully fill out the application form; moreover, the planning and zoning administrator submitted a letter to the board stating that prohibiting the pergola would not cause a hardship, as there was an existing reasonable use of the property. Further, the court concluded that their will to shade the property was not a unique circumstance distinct from general conditions in the neighborhood. The court thus determined that the board of adjustment acted illegally in granting the Sauls’ application for a variance, and reversed. 

Earley v Board of Adjustment of Cerro Gordo County, 2021 WL 744513 (IA 2/26/20201)

Posted by: Patricia Salkin | February 25, 2021

City of Berkeley, CA Joins Others in Eliminating Single Family Zoning

The Berkeley City Council voted unanimously this week to eliminating single family zoning, citing its historical use as a form of exclusionary zoning. See also, Berkeley to eliminate single-family zoning, cites racist ties (mercurynews.com)

This post was authored by Olena Botshteyn, Esq.

UJ-Eighty sought judicial review under the state and federal constitutions, arguing that Bloomington improperly granted its legislative authority to Indiana University (IU), when it allowed IU to define fraternities and sororities. The trial court concluded there was violation of constitutions and the appellate court affirmed. The Supreme Court reversed the decision, concluding that there was no improper delegation of authority to the IU by the town of Bloomington, as the town merely defined fraternities and sororities in its zoning law based on their relationship with IU. The court concluded that this cannot be viewed as an impermissible delegation of legislative power, and thus, there were no constitutional violations.

In 2002, UJ-Eighty purchased the property, located in Bloomington’s zoning district with a limited residential use. One of the permitted residential uses in this district is a fraternity or sorority house. At the time of purchase, Bloomington zoning Ordinance defined a fraternity or sorority house as a “building or portion thereof … for groups of unmarried students in attendance at an educational institution.” The Ordinance was amended later on to require for such students to be enrolled at IU and be recognized by IU as being members of a fraternity or sorority. In February 2018, IU revoked its recognition of Tau Kappa Epsilon, Inc. (TKE), a fraternity that occupied the building, owned by UJ-Eighty. While most of its members vacated the property, two remained. Bloomington further mailed a Notice of Violation to UJ-Eighty, stating that UJ-Eighty engaged in an illegal land use. UJ-Eighty further sought judicial review and argued that Bloomington unlawfully delegated zoning authority to IU, when it allowed IU to define fraternities and sororities.

First, the court concluded that Bloomington did not delegate its legislative authority IU and thus, did not violate Indiana Constitution. According to the Indiana Constitution, “no one can modify or change the law except the legislature”. Bloomington was the sole entity that enacted the Ordinance, defining permitted uses and zoning districts. While the Ordinance did provide a definition of “fraternity” and “sorority”, such definitions were similar to others that referenced an outside entity, similar to IU. In summation, the court stated that nothing indicates that the legislative power was granted to IU here.

Further, the court concluded that Bloomington did not deprive UJ-Eighty of due process and thus, did not violate US Constitution. While proving their argument, UJ-Eighty referred to cases, where the landowners were required to obtain their neighbors’ consent to use their land. Here, UJ-Eighty never had to seek IU’s consent to use its land. IU had no direct power to prohibit UJ-Eighty from lawfully using its land. Instead, IU has power to regulate the status of fraternities and sororities, however, this power comes from its General Assembly, and not from Bloomington. “IU’s decision to recognize or sanction a fraternity may have had “collateral effects” on land use in Bloomington”, but such a decision cannot be viewed as a delegation of legislative power.

City of Bloomington Board of Zoning Appeals v UJ-Eighty Corporation, 2021 WL 717972 (IN 2/23/2021)

This post was authored by Olena Botshteyn, Esq.

Intervenors’ residence is located in the rural residential district of the town of Madison. The current structure is not in conformance with the setback requirements of the district. With respect to the preexisting nonconforming uses and structures, the zoning ordinance provides that such structures may be expanded in size subject to certain conditions. One of the conditions is a limitation on expansion to a “total of fifty-percent (50%) of the square foot area of the first floor footprint of the existing structure”. Another condition requires the expanded structure be “no taller above sea level than the highest roofline of the existing structure”. In 2009, the prior owners of the property sought and obtained a variance from the ordinance’s height requirement to add a second story to the existing structure. The variance was not realized, however, it never expired. Intervenors were planning to demolish the existing structure and construct a new structure in its place. When doing so, they relied on the 2009 variance. In this case, plaintiffs who own an abutting property argue that intervenors’ proposed expansion of property violates the conditions of the variance and the ordinance’s “50% limitation.”

First, the court concluded that the proposed new structure is not in full conformance with the variance. The variance allowed the height of construction to be 513.92 feet above sea level, and the proposed structure was in conformance with such a requirement. However, the variance further required that “[t]he existing footprint shall not expand laterally.” The town argued that this was not a condition of approval, since this statement simply referred to the fact that the prior owners sought to expand the structure only vertically. The court concluded that since the variance expressly states that the grant is “subject to … conditions,” prohibition of lateral expansion of the existing footprint shall be viewed as condition. The court further stated that since the proposed structure expanded the footprint, such construction would be in violation of the variance and interveners cannot rely on it.

With regard to the 50% limitation requirement, the court concluded that the proposed structure is not in compliance with it. While the Town argued that this provision applies only to horizontal expansions, the court interpreted this provision differently, referring to the context, and decided that 50% limitation applies both to horizontal and vertical expansions of structures. Thus, the court concluded that an expansion of 4,546 square feet over the existing building would be beyond the 50% limitation, as the existing one-story structure is 2,310 square feet and the allowed expansion is 1,155 square feet.

The New Hampshire Supreme Court reversed the decision of the trial court, concluding that the intervenors’ proposed structure was not in conformance with the conditions of pre-existing variance and with the square-footage limitation defined in the zoning ordinance.

Connolly v Town of Madison, 2021 WL 688667 (NH 2/23/2021)

Posted by: Patricia Salkin | February 20, 2021

UT Appeals Court Rejects Neighbors’ Challenge to Subdivision

This post was authored by Matthew Loescher, Esq.

In 2017, Zeus Land Holdings LLC acquired a lot in a subdivision located in Salt Lake County, Utah, and conveyed that lot to Jupiter Land 1 LLC. Since the subdivision’s inception, its lots have been subject to a set of restrictive covenants (“CC&Rs”). Despite opposition from many of its neighbors, a lot owner subdivided its lot into two smaller lots. After the lot owner completed its subdivision, some of the neighbors sued, claiming that the subdivision violated restrictive covenants applicable to the property. The district court entered summary judgment in favor of the lot owner, holding that the subdivision did not violate the restrictive covenants.

At the outset, the court noted that a landowner’s knowledge that its neighbors oppose its actions, or that they “may even decide to amend the applicable covenants at some unknown time in the future,” did not qualify as “actual notice of a legally-cognizable prior interest in real property.” Here, the record reflected that the 1978 amendment— which lowered the minimum resubdivided lot size to 8,000 square feet—was operative at the time Owner re-subdivided its lot. As there was no valid basis for Neighbors’ objections to Owner’s resubdivision under the governing CC&Rs, the court held the release of the lis pendens was warranted.

Walker v Zeus Land Holdings, LLC, 2021 UT App. 9 (2/4/2021)

This post was authored by Olena Botshteyn, Esq.

Crown Castle, a telecommunications services provider, filed applications to install and operate its facilities in public rights-of-way in the city of Charleston (“City”), South Carolina. In its operations, Crown Castle uses fiber optic lines and equipment called “Nodes” or “small cells”. When authorizing such projects, the City requires to obtain an engineering permit from the Department of Public Service, which is issued subject to recommendations of the Design Review Committee (“DRC”).

In the previous case before this court Crown Castle argued that the City refused to process Crown Castle’s permit applications. In June 2018, the parties entered into mediation and reached a memorandum of understanding, subject to which the City was to enact a small cell ordinance (“the Ordinance”). In September 2018, the Federal Communications Commission (“FCC”) issued a declaratory ruling with regard to wireless services. In November the City adopted the Ordinance and design guidelines for small cells infrastructure. Crown Castle further notified the City that in its view the Ordinance was contrary to the FCC’s declaratory ruling.

In May 2019, Crown Castle filed an amended complaint, arguing that the City effectively prohibited Crown Castle from providing telecommunications services when it adopted the Ordinance, and that the City failed to act in a timely manner on Crown Castle’s sixteen applications. On March 23, 2020 the court granted summary judgment in favor of Crown Castle and directed the City to act on its applications within 90 days. The City acted on them on June 22, 2020. Crown Castle then sought judicial action with respect to seven of those applications, four of which were denied and three of which were conditionally granted.

The two issues this court considered when providing this summary judgment was whether the City’s denials of Crown Castle’s applications were supported by substantial evidence and whether the City acted on three of the conditionally granted applications in a timely manner.

  1. Court refused to grant summary judgement with regard to denied applications

The court followed a two-prong inquiry process and first looked to the applicable zoning ordinance and then determined whether substantial evidence supports the denial.

Crown Castle argued that the way the City reached its decision was not conforming with the local law, as the mayor unilaterally made the decision. The court stated that it is authorized only to determine whether the reasons for making a decision are supported by local law, and may not decide whether it was made by an appropriate authority. Furthermore, in the previous case the court stated that DRC acts as an advisory body to the mayor and it is implied that mayoral approval is ultimately required for such projects.

Crown Castle further argued that when making its decision, the authority relied on broad statements of purposes and goals, set forth in the Ordinance. The City specifically stated that the proposed tower is not consistent with design review guidelines and does not integrate with the surrounding historical area. Petitioner claimed that the authority should rely on substantive provisions instead of those containing the background and purposes, including the impact on the City’s aesthetics, and the court disagreed.

The court concluded that “aesthetic and preservationist concerns lie at the heart of each of the City’s denials. Both the Small Cell Ordinance and the Design Guidelines explicitly authorize the DRC to engage with such considerations in considering an application.” The court further stated that the legislative intent of the Telecommunications Act of 1996 (“TCA”), which regulates this issue was “to ensure the preservation of local authority over the decision to erect and modify wireless facilities”. It thus found that the City was authorized to deny applications on such grounds under local law.

The court further found that the City’s decisions were supported by substantial evidence. The court reviewed the photo simulations and determined that they “provide clear evidence for the aesthetic concerns expressed in each of the City’s denial letters” and stated that there is clear evidence of visual impact of the towers.

  • The Court granted summary judgment with regard to conditionally granted applications

The City conditionally granted three of the Crown Castle’s applications, subject to entering into “pole-use agreements” with the City. Crown Castle further provided the City with a copy of a draft pole-use agreement, and the City failed to respond. Crown Castle argues that the City failed to take final action on these applications within reasonable time.

The court agreed that although the City granted applications within the 90 days as prescribed by the court order, it failed to timely negotiate the pole-use agreement. The court thus considered it reasonable to order the City to act on the proposed pole-use agreement within 30 days.

Crown Castle Fiber, LLC v City of Charleston, 2021 WL 538148 (D. SC 2/15/2021)

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