Verrillo sought review of a decision rendered by the town zoning board of appeals granting eight variances sought by applicants to expand an existing nonconforming structure. The court, finding in favor of the plaintiff, held that various unofficial statements of the zoning board did not amount to a formal, collective, official statement of the board delineating the decision for its actions. In the absence of a statement of purpose by the board, it is the responsibility of the court to search the entire record to find a basis for the board’s decision. Here, the court made a number of findings after a review of the record. First, applicant’s personal desire to modernize and expand their existing nonconforming residential structure did not constitute a hardship warranting grant of the variance. Second, absent a showing of legal hardship, applicants were not entitled to variances on grounds that their proposal was reasonable. Finally, the small size of applicant’s property, a condition not unique in the district at issue, did not constitute legal hardship.

Verrillo v. Zoning Bd. of Appeals of Town of Branford, 155 Conn. App. 657, 111 A.3d 473 (2015)

A homeowner brought an action against the town, two churches, and a Roman Catholic Bishop, seeking a declaration that the town’s noise ordinance exemption for church bells was unconstitutional. The U.S. District Court held that the exemption encompassed performing and signaling bells—both secular and sectarian—and reflects New England’s historic legacy. Further, the court held the added exemption permitting bells linked to places of worship to ring as signaling devices without other limits “similarly seems well grounded in New England’s cultural tradition.” Therefore, the court “must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” The claim was dismissed.

Devaney v. Kilmartin, 2015 WL 631188 (D.R.I. Feb. 12, 2015).

This proceeding was brought pursuant to CPLR article 78 to review a determination of the City of Glen Cove Zoning Board of Appeals, which denied the petitioner’s application for area variances. The City of Glen Cove Zoning Board of Appeals appealed from a judgment of the trial court which granted the petition, annulled the determination, and remitted the matter to the City of Glen Cove Zoning Board of Appeals for the issuance of the appropriate variances.

The court first noted that in applying the statutory balancing test for granting area variances, a zoning board is “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational”. While the City of Glen Cove Zoning Board of Appeals rationally concluded that the requested variances were substantial, there was no evidence before the ZBA to show that the granting of the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Moreover, similar variance requests were granted for properties in very close proximity to the subject property, and the ZBA’s past pronouncements confirmed that the character of the neighborhood would not be negatively affected by the granting of the variances. The court thereby upheld the determination that the ZBA’s decision to deny the petitioner’s application for area variances was irrational, and arbitrary and capricious

L & M Graziose, LLP v City of Glen Cove Zoning Board of Appeals, 127 A.D. 3d 863 (NYAD 2 Dept. 4/8/2015)

The opinion can be accessed at:

In September 2012, BK at Long Beach, LLC, applied to the Zoning Board of Appeals of the City of Long Beach, for area variances which would permit it to build a mixed-use residential and commercial building on its property. After a hearing, the ZBA granted BK’s application. The petitioners, who had opposed the application, commenced this CPLR article 78 proceeding seeking review of the determination. The Supreme Court denied the petition and dismissed the proceeding, and the petitioner’s appealed.

The court first noted that in determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing “the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the neighborhood or community by such grant.” Because the ZBA engaged in the required balancing test and considered the relevant statutory factors, the court found its decision was not arbitrary and capricious even though the proposed variances were substantial and the applicant’s alleged difficulty was self-created. Furthermore, the ZBA rationally concluded that the benefit sought by BK could not be achieved by a feasible alternative method which would not require an area variance. Accordingly, the court affirmed the dismissal of the petitioner’s claims.

Goodman v City of Long Beach, 2015 WL 2457861 (NYAD 2 Dept. 5/27/2015)

The opinion can be accessed at:

Wainscott Wombles, LLC, purchased the subject property located in a residential zoning district. Before 1975, the only building on the property had a pre-existing nonconforming diner. In 1975, the Zoning Board of the Town of East Hampton approved the application of the previous owner of the property to change the nonconforming use from a diner to a real estate office and antique shop. In June 2011, the Town of East Hampton Building Inspector determined that the Town of East Hampton Town Code permitted the construction of a single-family residence on the property in addition to the existing commercial building. Consequently, the Planning Board of the Town of East Hampton approved an application by the LLC to construct a separate 600 square foot single-family residence on the premises in addition to the existing commercial building. In June of 2012 the ZBA upheld the Building Inspector’s determination, and the state Supreme Court denied petitioner’s resultant Article 78 claims.

The East Hampton Town Code defines commercial property, in relevant part, as “any lot containing a nonconforming business use”, and permits “any one commercial property in any district” to have “two uses.” Accordingly, the court found the ZBA’s determination that the Town Code permitted the construction of a single-family residence in addition to the existing nonconforming business use, and the Planning Board’s determination to approve the application of the LLC to build the single-family residence, were not arbitrary and capricious. The judgment dismissing petitioner’s claims was therefore affirmed.

Concerned Citizens of Wainscott v Planning Board of the Town of East Hampton, 2015 WL 3480252 (NYAD 2 Dept. 6/3/2015)

The opinion can be accessed at:

Appellants Jay and Kendall Nygard had constructed a wind turbine in their backyard in violation of the City of Orono’s zoning code. The district court found them in constructive civil contempt of court for repeatedly refusing to comply with its order to remove the turbine after their legal challenges to Orono’s zoning code failed. The Nygards then appealed the district court’s denial of their motion to stay the contempt proceedings. On appeal, the Nygards argued that the district court lacked subject matter jurisdiction to find them in contempt because the contempt proceedings arose from their failure to comply with the district court’s order in their permit dispute, and the district court lacked subject matter jurisdiction over that permit dispute.

Minnesota courts held that a party collaterally attacking subject matter jurisdiction of a final judgment entered in a separate proceeding must prove that the court lacked subject matter jurisdiction, and also demonstrate either that: The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or the judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction. Bode v. Minn. Dep’t of Natural Res., 612 N.W.2d 862, 866 (Minn.2000).

Here, however, the Nygards failed to present any evidence of any of the Code requirements. Furthermore, the court found that the Nygards failed to persuade the district court on the merits of their argument did not mean that the district court lacked subject matter jurisdiction to adjudicate the dispute that the Nygards brought to court. The Nygards next argued that they failed to exhaust their administrative remedies, but the court found this argument similarly unpersuasive because the failure to exhaust administrative remedies is an affirmative defense that may be brought by a municipality. Finally, the Nygards requested that the court grant a stay, but did not offer a single argument as to why it should grant that relief. As such, the court deemed the Nygards’ right to argue for a stay waived. Accordingly, the court affirmed the district court’s order to remove the turbine or face fines and/or jail time.

City of Orono v Nygard, 2015 WL 2467194 (MN App. Unpub. 6/1/2015)

The opinion can be accessed at:

The Bennetts own a beachfront triplex and adjacent lot known as “The Lawn” in south Walton County that they rent many times each year for weddings, graduation parties, reunions, and other events. Their property sits within a county-designated “Residential Preservation Area” district surrounded by family dwellings. In 2010, Bennetts’ neighbors began to complain to the County about events held on the Lawn after about 30 wedding event rentals had occurred in 2009 and more were being held in 2010. The County responded by citing the Bennetts three times between February 2010 and April 2011, for making “non-residential use” of their property in violation of Walton County’s Land Development Code (LDC). In response, the Bennetts sued the County, alleging, among other things, that the County’s ambiguous restriction and arbitrary enforcement violated their substantive due process rights. After the parties filed cross motions for summary judgment on the claim, the trial court ruled for the County, and the Bennetts appealed.

The Bennetts didn’t challenge the constitutionality this sort of zoning classification per se, but only that the LDC’s parameter prohibiting “non-residential uses” was too ambiguous to ever be constitutionally applied. However, the court found that the “non-residential uses” prohibition was not unconstitutional on its face because contexts exist where it “conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” The court next addressed whether the LDC’s prohibition on “non-residential uses” conveyed a sufficiently definite warning as applied to the Bennetts’ particular use of the Lawn. The court held that the rate and scope of the Lawn’s rental usage—up to 30 weddings per year on the Bennetts’ lot—wasn’t typical residential usage as measured by common practice. Accordingly, the LDC’s “non-residential uses” restriction conveyed a clear and sufficient standard as applied to the Bennetts’ usage.

The Bennetts’ final argument was that the County’s enforcement was unconstitutionally ad hoc and illegitimate. Even though the County did not provide an exact number of weddings the lot could legally host, the County’s response made it clear the Bennetts’ use was clearly prohibited and reflected the zoning enforcement expectations of the Bennetts’ neighbors, who complained about all the events and also didn’t think that the lot could play host to so many weddings each year. The County’s enforcement was therefore not unlawfully arbitrary, and the holding of the trial court was affirmed in favor or the County.

Bennett v Walton County, 2015 WL 3824197 (FL App. 1 Dist. 6/22/2015)

The opinion can be accessed at:

In 2011, petitioner applied to the Planning Board of respondent City of Plattsburgh for site plan approval to develop an apartment complex. The plans were approved with a stipulation requiring the use of exterior brick veneer in a color that matched neighboring buildings. In 2012, after revising the construction plans, petitioner filed a new application for site plan approval and submitted architectural drawings indicating that the exterior would be “½ Brick Veneer Siding” and that the veneer material would be “Boral Stone Products Cultured Stone Brick Veneer Antique Red.’ ” In April 2012, the Planning Board issued a letter that conditionally approved the site plan and specifically referenced the architectural drawings as part of the approved plan. Despite this, Petitioner used an alternate veneer material, and consequently in October 2012, the City informed petitioner that a certificate of occupancy would not be issued unless the Boral Stone was installed or petitioner posted financial security. Petitioner posted the security, signed a completion agreement and was issued a certificate of occupancy. In January 2013, petitioner commenced this CPLR article 78 proceeding challenging respondents’ authority to require the specified veneer and seeking, among other things, an order directing the issuance of an unconditional certificate of occupancy. The trial dismissed the petition as time-barred under CPLR 217 (1), and the petitioner appealed.

The court below found the petition untimely because it was not filed within four months after the Planning Board’s April 2012 approval of the site plan. Petitioner argued that the court erred because the proceeding was timely filed within four months after the City refused to issue an unconditional certificate of occupancy, and it was this determination at issue. The court disagreed, adhering to the principal that an administrative determination is considered final and binding when an agency has reached a definitive position on the issue that inflicts actual, concrete injury and administrative remedies have been exhausted. Here, Petitioner was first aggrieved by this requirement when it was included in the Planning Board’s site plan approval in April 2012, and not when petitioner’s refusal to comply subsequently led to the withholding of an unconditional certificate of occupancy. Furthermore, while the City’s September 2012 letter indicated that no determination had yet been made as to whether to withhold the certificate of occupancy, this did not constitute a de novo review by the Planning Board, and therefore did not result in a lack of finality.

Finally, the court found the petitioner’s action to compel the city to issue a certificate of occupancy also failed. The court held that a determination of whether petitioner complied with the approved site plans involved discretionary considerations beyond the reach of a proceeding for relief in the nature of mandamus. Accordingly, the court affirmed the dismissal of petitioner’s claims.

EZ Properties, LLC v City of Plattsburgh, 128 A.D. 3d 1212 (NYAD 3 Dept. 5/14/2015)

The opinion can be accessed at:

The Plaintiff’s claims arose under 42 U.S.C. § 1983 from two decisions by the Defendant Town of Southampton Planning Board involving conditional approvals of the Plaintiff’s applications for a building permit for the construction of a barn on its property. The Plaintiff also commenced two related state court proceedings pursuant to Article 78 to challenge the decisions of the Planning Board as affected by errors of law, as arbitrary and capricious, as an abuse of discretion, and as not supported by a rational basis. On April 8, 2015, the court granted in part and denied in part the Defendants’ motion for reconsideration of the court’s August 19, 2014 denying 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 April 22, 2015, the Defendants moved pursuant to Local Civil Rule 6.1 for reconsideration of the court’s April 8, 2015 order, claiming that the Court misapprehended their ripeness-based argument. On May 8, 2015, the court granted the Defendants’ motion for reconsideration on the basis that this action was unripe for review, due to the December 2014 decision in the State Court Article 78 action. The complaint was dismissed without prejudice with leave to refile at such time as the claims became ripe or an exception to the ripeness doctrine could be shown. On May 15, 2015, the Plaintiff moved pursuant to Local Civil Rule 6.3 for reconsideration of the May 8, 2015 order. The Plaintiff contends in part that, in declining to find that further proceedings before the Planning Board were not futile, the Court misapprehended the permitting restrictions of Sections 330–51 and 330–50(d)(2) of the Southampton Town Code.

The court first noted that the futility exception to the ripeness doctrine, sets forth that a property owner will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. Furthermore, in a land use context, the futility exception is applied when the relevant “agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.” Safe Harbor Retreat, LLC v. Town of E. Hampton, 2015 WL 918771 (E.D.N.Y. Mar. 2, 2015). While the Court agreed with the Plaintiff to the extent that any consideration of its land use applications by the Planning Board under Section 330–51(a) would be futile, it found the Plaintiff had not shown futility with regard to consideration of those land use applications under the permitted use under the Grant of the Agricultural Reserve Area (“ARA”) as open, fallow, landscaped, and wooded areas.

The court determined that it was not entirely clear that the Plaintiff’s land use applications were not a permissible use of the ARA, and the Planning Board failed to consider this possibility. Because it appeared that neither the Town Attorney nor the Planning Board had made any pronouncements on this possibility, separate and apart from their litigation positions with regard to Section 330–50(D)(2), it denied the Plaintiff’s motion for reconsideration.

545 Halsey Lane Properties, LLC v Town of Southampton, 2015 WL 3824050 (EDNY 6/19/2015)

In a §1983 action, Plaintiff Icon Groupe, LLC, (“Icon”), alleged that defendants Washington County and Andrew Singelakis, violated Icon’s constitutional right to freedom of speech when they failed to grant Icon’s applications for permits to erect and maintain seventeen freestanding signs displaying public safety messages, such as “Celebrate the Holiday Safely—Happy Memorial Day.” Because the signs contained safety messages, Icon believed they qualified for an exemption from otherwise applicable size and height restrictions under section 414–5.9 of the County Community Development Code (“CDC”). Icon specifically alleged that Defendants’ denial of the Application was: 1) premised on an impermissible purpose; 2) not based on a consideration of less restrictive alternatives; 3) a standardless and arbitrary exercise of discretion; and 4) a pretextual restriction on speech. Defendants moved for summary judgment arguing that their actions did not result in a violation of Icon’s right to freedom of speech, and that even if such violation occurred they were entitled to absolute or qualified immunity.

The court first stated that to justify a prior restraint on noncommercial speech, the states must establish that the regulation or restriction furthers sufficiently substantial and legitimate governmental interests and is narrowly drawn to serve those interests without unnecessarily impinging on a citizen’s freedom of speech. Alternatively, a restriction on otherwise protected commercial speech is valid only if it: seeks to implement a substantial governmental interest, directly advances that interest, and reaches no further than necessary to accomplish the given objective. Here, the court found Singelakis did not deny the Applications solely because he considered the Exemption to be content-based and, therefore, unconstitutional. Once the County decided the Exemption was unconstitutional, Signelakis severed the Exemption from the CDC, analyzed the Applications under the remaining provisions, and found they were not in compliance. The denial of the Application was therefore based on a finding the Applications did not comply with the CDC’s constitutional restrictions on time, place, and manner.

Next, Icon argued that Defendants could have declared unconstitutional the entire portion of the CDC relating to signs, thereby eliminating any restrictions on signs and either requiring the approval of the Applications or eliminating any need for approval. The court, however, determined Defendants properly severed the Exemption and denied Onsite’s applications based on the constitutional restrictions found in the rest of the CDC. While Singelakis’s alleged authority to disregard the Exemption could have afforded him arbitrary discretion to violate Icon’s free speech rights had he denied the Applications on this basis alone, he did not do so. Accordingly, Singelakis did not exercise arbitrary discretion in applying the remaining parts of the CDC to the Applications. The court therefore granted Defendants’ motion to dismiss, finding that denial of the applications was based on content-neutral restrictions on the time, place, and manner found in the County’s applicable regulations and did not violate Icon’s free speech rights.

Icon Groupe, LLC v Washington County, 2015 WL 3397170 (D. OR 5/26/2015)


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