Following a determination of the zoning board of appeals that the Village Planning Board had authority to review the petitioner’s application for a building permit, the petitioner appealed to the trial court which upheld the determination.  The appellate court affirmed noting, “Pursuant to the plain language of the Code of the Village of Tarrytown § 305–67, the Village of Tarrytown Planning Board had the authority to review the petitioner’s application for a building permit, which sought to construct a retaining wall, given that the proposed construction involved the disturbance of “steep slopes” on the subject property. Contrary to the petitioner’s contention, the ZBA either reasonably determined that the circumstances of the prior applications for building permits were distinguishable from those of the instant application, or otherwise provided a valid and rational explanation for its departure from its prior precedent.”  Reiterating that the ZBA’s determination is entitled to deference, the appellate Court found that the lower court properly upheld the ZBAs determination.

Bartolacci v Village of Tarrytown Zoning Board of Appeals, 2016 WL 6773977 (NYAD 2 Dept. 11/16/2016)

Randy Strode and Helen Strode sought review of the district court’s decision dismissing Randy’s zoning regulation inverse condemnation claim, granting a motion for summary judgment on Helen’s zoning regulation inverse condemnation claim, and granting a motion for summary judgment on the Strodes’ takings claim based on the load limit posted on a bridge located near their property. The District Court, Saunders County, dismissed husband’s inverse condemnation claims as time barred, and granted summary judgment for city and county.

In their first assignment of error, the Strodes argued that Randy’s takings claim was not subject to claim preclusion because the issue was not ripe until the district court’s decision in the 2003 case. The court first noted that, in the context of a regulatory taking, a cause of action for inverse condemnation begins to accrue when the injured party has the right to institute and maintain a lawsuit due to a city’s infringement, or an attempt at infringement, of a landowner’s legal rights in the property. Here, the City acted to implement the ordinance on the property when the City zoning administrator repeatedly notified the Strodes of their nonconforming use of the property between November 2002 and June 10, 2003, and also on June 10, 2003, when the City zoning administrator mailed Randy notice of his nonconforming use and the City’s intention to institute legal action if the Strodes did not conform their use to the PUB designation of the property. Since the City’s actions had an adverse economic impact on the Strodes’ right to use the property in the commercial manner that they wished, they gave rise to the Strodes’ right to institute and maintain a lawsuit against the City for its implementation of the ordinance upon the property. Accordingly, the City’s June 10, 2003 letter to Randy stating its intent to institute legal proceedings against him began the running of the statute of limitations on the Strodes’ claims. Because, Randy filed his inverse condemnation claim on September 5, 2013, the 10–year statute of limitations for inverse condemnation claims was exceeded. Accordingly, Randy’s inverse condemnation claim was barred by the statute of limitations.

As to Helen Strodes’ separate claim for inverse condemnation, the regulation at issue prevented the Strodes from transporting their goods across the bridge in semitrailer trucks that exceed 14 tons; however, the Strodes could use the railroad underpass for semitrailer trucks that exceed the 14–ton weight limit. Randy contended that this was not an adequate alternative, because the height of the railroad underpass is 11 feet 3 inches, and when he transports bulk amounts from his business, the semitrailer trucks usually reach 13 feet 6 inches. While the court noted this was a “more roundabout way” to perform his business, in which he would incur some damages, it did not constitute an injury different in kind than the general public, but only different in terms of degree. Additionally, the Strodes failed to present any evidence that the weight limit of the bridge decreases the economic value of the property. Even though Randy testified that it cost two to three times more to transport steel in smaller loads rather than in bulk, he did not conduct any analyses to either substantiate this claim or determine how the property had diminished in value by the weight limits on the bridge. Moreover, the court found that the Strodes failed to prove that the load limit interfered with any of their investment-backed expectations, as the load limit was posted on the bridge at least as early at 1990,prior to the Strodes’ purchase of the land.

Accordingly, the court held that the district court did not err in finding in favor of the City and the County, and affirmed.

Strode v City of Ashland, 295 Neb. 44 (NE 10/28/2016)


Posted by: Patricia Salkin | November 28, 2016

NH Supreme Court Upholds Planning Board’s Approval of Site Plan

The petitioner, Kulick’s, Inc. (abutter), appealed an order of the Superior Court upholding a decision by the planning board of the respondent, the Town of Winchester, to approve a site plan submitted by the intervenor, S.S. Baker’s Realty Co., LLC (hereinafter “applicant”). The abutter contended that the trial court erred because: the site plan did not constitute a material change from a prior site plan, which the board had rejected; the board imposed an illegal condition subsequent; the applicant’s special exception had expired; the board improperly granted the applicant two waivers from the town’s site plan regulations; and the applicant’s storm water management plan violated the town’s storm water management regulations.

The abutter first argued that the changes in the second site plan were “not significant” and were not “physical changes”; however, it failed to cite any authority requiring that changes be “significant” or “physical.” As to the issue of whether the trial court erred in upholding the board’s requirement that the applicant “hire a qualified engineer to oversee the construction site work … and report to the town,” which the abutter argued was an “illegal” condition, the court found that planning boards have the authority to condition site plan approval.

The court next determined whether the trial court erred in upholding the board’s finding that the applicant’s special exception had not expired. Here, the special exception was granted on February 22, 2012, and the applicant filed its first site plan in March 2012, which the board denied and the applicant appealed. That appeal was not resolved until March 19, 2014. On June 24, 2013, while that appeal was pending, the applicant filed its second site plan. Effective September 22, 2013, RSA 674:33, IV (Supp. 2015) was amended to provide that a special exception is valid for two years “or as further extended by local ordinance or by the zoning board of adjustment for good cause, provided that no such special exception shall expire within 6 months after the resolution of a planning application filed in reliance upon the special exception.” Accordingly, the court found that the special exception’s one-year deadline was stayed by the appeal.

The court also found that the evidence supported the board’s determination that requiring a landscape bed separating the parking area from the building would cause unnecessary hardship and that waiving this requirement was not contrary to the spirit and intent of the regulations. Additionally, the court held that the evidence supported the board’s determination that requiring a ten-foot buffer on one site boundary would cause unnecessary hardship and that permitting a five-foot buffer and a six-foot solid fence instead was not contrary to the spirit and intent of the regulations. Thus, upon consideration of all the regulations, the court held that the applicant’s storm water management plan was authorized by the regulations.

Kulick’s, Inc. v. Town of Winchester, 2016 WL 6472134 (NH 9/16/2016)

Sun Outdoor Advertising appealed the denial of a permit to erect a billboard along a designated scenic highway in Okanogan County. The Department of Transportation found that the proposed location was not zoned for “predominantly commercial or industrial uses,” noting the purpose of the MRD zone was to “maintain broad controls in preserving rural character and protecting natural resources.” Under the Scenic Vistas Act, chapter 47.42 RCW, billboards were generally prohibited along scenic roads, but an exception would apply if: the area was zoned by the county for predominantly commercial and industrial uses, and the area contains development which was visible from the highway. Sun Outdoor argued that because the majority of the itemized permitted uses in the applicable zoning designation could be categorized as commercial or industrial in nature, those uses “predominate.”

At the outset, the court noted that the proposed billboard location was not within an area zoned by the County as a specific commercial or industrial district. Instead, the proposed location was zoned by the County as a “Minimum Requirement District” (MRD), which permitted a wide variety of uses, including but not limited to commercial and industrial uses. The court found that because the MRD allowed a broad range of uses and prohibited only a very few uses, there was no particular category of use that predominates; therefore, commercial and industrial uses did not predominate. Furthermore, the court determined that contrary to Sun Outdoor’s argument, merely counting up the number of itemized permitted uses in the MRD that were commercial or industrial in nature was not a true measure of what uses predominate. Accordingly, the court held that Sun Outdoor failed to establish any error of law under the APA standards, and affirmed.

Sun Outdoor Advertising, LLC v. Washington State Department of Transportation, 381 P.3d 169 (WA App. 2016)

Plaintiff Donohoo filed a land use permit and mitigation plan with the Douglas County zoning office to build a small addition to his home. When he learned that a new state law, 2011 Wisconsin Act 170, had been passed, prohibiting local authorities from enacting shoreland zoning restrictions that were more onerous than those passed by the state, he withdrew his plans and submitted a revised permit application and mitigation plan proposing a second story addition to his home. When this revised application was denied, Donohoo challenged the denial through a certiorari action he filed in Douglas County Circuit Court. The district court concluded that this was a matter for local land–use agencies or the state court, and that Donahoo failed to offer proof that any of his constitutional rights had been violated. Barry Donohoo appealed the grant of summary judgment against his claim that local officials in Douglas County, Wisconsin, violated his constitutional rights when they denied him the land use permit.

The court determined that the claim under the Takings Clause failed because Donohoo failed to provide any evidence that Douglas County deprived him of property or the practical uses of the property. Even if there had been a taking, the court determined that Donohoo could not bring a federal claim because he had not first pursued state remedies. As for Donohoo’s equal protection claim, the court found that he failed to show that Douglas County’s actions lacked a rational basis or that the county treated any similarly situated individual more favorably. Finally, the court held that Donohoo’s due process claim failed because local zoning decisions require only minimal process, which he received.

Donohoo v Hanson, 2016 WL 6393498 (7th Cir. CA 10/28/2016)

Dakota Outdoor Advertising, LLC entered into a lease with Boutrous Group, the owner of property in Bismarck near the intersection of East Capitol Avenue and State Street. Dakota intended to erect a digital billboard on the property. Since the sign would be digital and located less than 300 feet from a residential property, City of Bismarck’s Code of Ordinances required Dakota to obtain a special use permit before it could erect the sign. In this case, Dakota appealed from the district court’s order affirming the Bismarck Board of Commissioner’s decision affirming the Bismarck Planning and Zoning Commission’s denial of an application for a special use permit.

The Board first argued this appeal was moot because City of Bismarck Ordinances no longer permitted special use permits for digital billboards at a distance of less than 300 feet from a residential area. However, the Ordinance the Board referred to clearly stated: “No part of this code is retroactive unless it is expressly declared to be so.” Therefore, under the City of Bismarck Code of Ordinances, the new ordinance was not expressly written to be applied retroactively. As such, the court found that this appeal was not moot.

Dakota next argued the Board’s decision to deny a special use permit was arbitrary, capricious, and unreasonable. Dakota contended the studies it presented to both the Commission and the Board supported a grant of the special use permit, and no evidence was presented which supported a denial. Despite this contention, the Board found the studies submitted by Dakota were “at best, inconclusive” and failed to address the “cumulative effect of driving distractions.” Thus, the Board gave more weight to a North Dakota Department of Transportation report’s determination the proposed billboard site was located at the “7th most dangerous intersection in the State of ND and the 2nd most dangerous intersection in the City of Bismarck.” Additionally, the Board’s other findings included a high incidence of accidents on the street running next to the proposed site, and finding Dakota’s evidence was inconclusive as to whether digital billboards increased driver distraction. The Board determined these findings supported a conclusion that granting the special use permit would “adversely affect the health, safety and welfare of Bismarck’s citizens.” Accordingly, the Board’s decision to deny a special use permit to Dakota was not arbitrary, capricious, or unreasonable. The district court’s order affirming the Board’s decision to deny a special use permit was therefore affirmed.

Dakota Outdoor Advertising, LLC v. City of Bismarck, 2016 WL 6611238 (ND 11/9/2016)


On September 8, 2015, the Board of Zoning Adjustment granted intervenor SB–Urban, LLC’s application for special exception and variance relief permitting the construction of a two-parcel apartment community which would offer no automobile parking. A portion of one parcel (the “M Street Property”) housed a historic garage onto which SB–Urban intends to build an addition. The other lot (the “9th Street Property”) was unimproved. The Project would consist entirely of small, fully furnished studio apartments marketed to young professionals who SB–Urban maintained would require neither on-site nor on-street parking. Petitioners Ahmed Ait–Ghezala and Barbara Schauer owned property within 200 feet of the Project site. They contended that the Board wrongly denied as untimely their requests for party status, erred in determining that SB–Urban was entitled to the parking variance requested for the 9th Street Property, and improperly granted special exception relief from parking requirements for the M Street Property.

Petitioners first argued that their requests— submitted more than fourteen days before the Board held its January 27, 2015, continuation hearing but after the November 5, 2014, date initially scheduled for the hearing and after the Board held its December 2, 2014, initial hearing on the merits of SB–Urban’s requests—were timely filed. Petitioners further argued that the language “the date set for the hearing” was ambiguous with respect to whether a scheduled continuation hearing constituted “the hearing” so that the time for filing a party status request started again. However, to the extent there was ambiguity, the court determined that it must defer to an agency’s reasonable interpretation of its own regulation. Here, the court found that the Board did not unreasonably regard either the November 5 date or the December 2 date as the point from which to assess the timeliness of a request for party status.

The BZA found that the 9th Street Property was affected by an exceptional condition arising from a “confluence of factors on the property. However, the court found that the Board erroneously considered the property’s use to be part of a confluence of factors contributing to the purported exceptionality of the 9th Street Property. The court disagreed, finding that “the proposed use of a property is not a sufficient basis for determining the presence of exceptional conditions. Additionally, the Board failed to explain why the fact that the 9th Street Property was among the larger properties in its square should be understood to make it exceptional or extraordinary for the purposes of considering a variance from parking requirements. The court held that without additional findings regarding whether the 9th Street Property’s shape was distinctively irregular or exceptionally narrow among properties in the neighborhood. Therefore, the court found that these two features alone failed to form a “confluence of factors” sufficient to justify the Board’s conclusion that the 9th Street Property was affected by an exceptional condition. Accordingly, the court held that the Board’s conclusions did not flow rationally from its findings, and remanded the case to the Board for additional proceedings.

Lastly, the Board determined that SB–Urban had met its burden of demonstrating that, as a result of the nature or location of the historic resource, providing the required parking would result in significant architectural or structural difficulty in maintaining the historic integrity and appearance of the historic resource. In granted SB–Urban’s application for a complete special exception to the parking requirements, however, the court found that the Board neglected to even acknowledge in its Decision and Order that, by regulation, it must “grant only the amount of relief needed to alleviate the difficulty proved.” Here, the record did not present any evidence indicating that the Board considered granting anything less than the full relief requested. Accordingly, the Board’s grants of special exception and variance relief were reversed and the matter was remanded for further proceedings.

Ait-Ghezala v District of Columbia Board of Adjustment, 2016 WL 6659496 (DC CA 11/10/2016).


KS Development Company, L.P. and KS Development Company 2, L.P. (collectively KS Development), and Woodmont Properties, sought to reverse the order of the Court of Common Pleas of Northampton County affirming the decision and order of the Lower Nazareth Township Board of Supervisors, which denied KS Development’s request for a curative amendment to the Lower Nazareth Township Zoning Ordinance. On appeal, KS Development and Woodmont argued that the Ordinance totally excludes apartments as a permitted use within Lower Nazareth Township and that, in the alternative, the Ordinance failed to accommodate for the Township’s fair share of multi-family housing.

The Appellees contended that because apartments are defined as containing dwelling units and a personal care center, life care center, and retirement village may also contain dwelling units than each of these uses can be considered as including apartments. However, the court rejected this argument, finding that under the Ordinance the presence of a “dwelling unit” did not mean that the use permitted is a “dwelling” and it was equally clear that “apartments” were “dwellings” whereas personal care centers, life care centers, and retirement villages were not “dwellings,” but separately defined categories of use that contain residential features.

Despite this, the court also found that the analysis by KS’s expert regarding the level of development in the township incorrectly examined the percentage of total undeveloped land and the percentage of land available for the class of housing alleged to be unconstitutionally excluded. Specifically, the court found this analysis to lack persuasive value, as it treated areas zoned for agricultural use and actively used for agricultural purposes as undeveloped. Here, the MPC permitted communities to enact ordinances to protect and promote agricultural uses of land and identify the protection and promotion of agricultural land and uses as one of the purposes of zoning in the Commonwealth. Additionally, prior caselaw held that land used for active agricultural and agricultural-related purposes is properly considered to be developed land for purposes. By failing to account for land used for agricultural purposes, KS Development’s expert necessarily overestimated the amount of land available for development, and consequently concluded that the Township was underdeveloped. Accordingly, the court held that the Board and the Trial Court did not err by rejecting KS Development’s challenge to the Ordinance because KS Development did not carry its burden to demonstrate that the Ordinance was de facto exclusionary of apartment uses.

Moreover, while KS Development produced evidence showing that developing apartment complexes in accordance with the Ordinance was economically infeasible, the court noted that this was not KS Development’s burden. Instead, in order to carry its burden to demonstrate that the Ordinance was unconstitutional because it was de facto exclusionary, KS Development had to demonstrate that the development of apartments was economically infeasible. Additionally, the Township’s intensive restrictions on the manner in which apartments were developed were not shown to be unreasonable and unrelated to public health, safety, morals and general welfare. Accordingly, the court held that the trial court did not err in affirming the Board’s conclusion that KS Development’s challenge to the Ordinance as unduly restrictive of the development of various arrangements of multi-family dwellings was without merit.

KS Development Company, L.P. v. Lower Nazareth Township, 2016 WL 6242509 (PA Cmmwlth 10/26/2016)


Editors Note: This post originally appeared on Municipal Minute, a blog published by Ancel Glick and authored by Julie Tappendorf., and reposted with permission. See:

Conaghan owned a home in Harvard, Illinois that he rented out to separate tenants. The rental use was a legal nonconforming use. When the home was damaged, Conaghan hired a contractor to rehabilitate the property, but the permit lapsed and the property remained vacant for more than a year. The City notified Conaghan that his previous nonconforming use was no longer permitted because it had been abandoned for more than 12 months, per the City’s zoning code. Conaghan applied for a special use permit to allow the rental use, but the City denied the application and Conaghan sued under 65 ILCS 5/11-13-25.

The City filed a motion to dismiss the complaint, arguing that 65 ILCS 5/11-13-25 does not provide an individual with an independent cause of action to challenge a zoning decision. The City argued that 65 ILCS 5/11-13-25 was enacted in response to the Illinois Supreme Court’s decision in Klaeren v. Village of Lisle, which had held that a municipality’s decision on a special use permit is quasi-judicial rather than legislative. 65 ILCS 5/11-13-25 clarified that challenges to all zoning decisions (including special uses) were to be reviewed under legislative standards.

The appellate court ruled in favor of the City, and dismissed Conaghan’s challenge to the City’s denial of its special use request. The court reviewed a number of cases interpreting 65 ILCS 5/11-13-25, and concluded that this statute did not provide a plaintiff with a cause of action, but simply clarified the standard of review. Since Conaghan did not bring any other challenge (i.e., declaratory relief, constitutional claims) and relied solely on 65 ILCS 5/11-13-25 as his basis for the lawsuit against the City, his case was dismissed.

Conaghan v. City of Harvard, 2016 IL App (2d) 151034 (8/31/2016)

Petitioners are the owners or tenants of property in the Town of Greenburgh on which a diner is located. The property is adjacent to the subject property, the owners of which were granted area variances by the zoning board of appeals to enable development of the parcel which had contained a gas station and residence. The petitioners assert among other things, that there is inadequate parking in the area and that the Board’s determination will have adverse impacts on traffic and parking conditions. The lower court dismissed the petition on the grounds that the petitioners lacked standing.

On appeal, the Court noted that, “To demonstrate standing, the petitioner must show that the administrative action will have a harmful effect on it, and that the interest the petitioner asserts is “arguably within the zone of interest to be protected by the statute.” (citations omitted) The appellate court agreed with the Court below that the petitioners did not allege any legally cognizable injury with respect to parking or traffic. “Simply put, the only effect that the petitioners/plaintiffs allege the area variances will have with respect to parking is limited to parking actually on the subject property. There is no allegation of impact as to on-street parking.” Further the Court found that the petitioners claims were conclusory and speculative.

Panevan Corp. v. Town of Greenburgh, 2016 WL 6604727 (NYAD 2 Dept. 11/9/2016)

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