The petitioner in this case commenced a CPLR article 78 proceeding seeking review of the denial of his application for a building permit by the Building Department of the Town of Brookhaven. As the court noted, one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law. Here, the petitioner failed to pursue an available administrative remedy-an appeal to the Board of Zoning Appeals of the Town of Brookhaven-prior to seeking judicial intervention. Furthermore, the petitioner failed to establish that an exception to the exhaustion doctrine was applicable, such as futility. Accordingly, the court found that the Supreme Court properly granted the respondents’ motion to dismiss the petition.

Larocca v Department of Planning, Environment, and Development of Town of Brookhaven, 2015 WL 446784 (NYAD 2 Dept. 2/4/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D44217.pdf

A restaurant owner brought action for an administrative mandate to overturn city council resolution reversing city planning commission’s approval of conditional use permit and variance to allow restaurant to have a patio cover, remain open late on weekends, and allow dancing inside the restaurant, and asserted § 1983 claim, while city filed cross-complaint for injunctive relief. The Superior Court, Orange County, granted preliminary injunction and denied application for writ of mandate, and the restaurant owner appealed.
On September 5, 2013, the Newport Beach Planning Commission voted 5 to 2 to approve a conditional use permit and variance to allow Woody’s to have a patio cover, remain open until 2 a.m. on weekends, and allow dancing inside the restaurant. Four days later, Newport Beach City Council member Mike Henn sent the city clerk an email in which he made an “official request to appeal” the planning commission’s decision because he “strongly believed” the “operational characteristics requested in the application and the Planning Commission’s decision are inconsistent with the existing and expected residential character of the area and the relevant policies of the voter approved 2006 General Plan.” The council voted 4 to 1 to reverse the planning commission’s decision, with a 6th member abstaining and the 7th recusing himself.

The court found, under the canon of expressio unius est exclusio alterius, that the use of the phrase “interested party” without explicit provision for a city council member exception—indicates that city council members would have to be disqualified from participating in any appeal they brought. If the code says “interested person” under the heading of eligibility, it is simultaneously conveying the thought that disinterested persons are not eligible. Therefore, an “interested party” for purposes of bringing the appeal cannot simultaneously be a “disinterested person” for purposes of affording due process in the hearing of the appeal. Furthermore, the court determined that a city council’s taking an appeal that is not authorized by the city’s municipal code requires that the council’s decision be nullified, not just returned for reconsideration. Accordingly, the order granting the city’s preliminary injunction was reversed, and the trial court was directed to vacate the order denying Woody’s petition for writ of mandate and enter a new order granting it.

Woody’s Group, Inc v City of Newport Beach, 2015 WL 367448 (CA. App. 3 Div. 1/29/2015)

The opinion can be accessed at: http://www.courts.ca.gov/opinions/documents/G050155.PDF

The owners of two homes initiated this suit after the Board told them they could not use their homes for short-term rentals. James and Cathy Radmann (d/b/a HEEF Realty) purchased a second home to use for short-term rental and eventual retirement. The Radmanns started renting the house out in September 2012, and on September 12, 2012, they got a notice from the City informing them that the property use violated City Ordinance 13–1–46, which was said to prohibit the rental of a single-family dwelling in a single family residential district. The Owners appealed the citations, and the Board denied their appeals. The Owners brought complaints for certiorari review, which were consolidated. The circuit court found that the homes are single-family dwellings and that the Board made an error of law when it determined that short-term rental was not a permitted use, and the Board appealed.

The court adopted a plain language approach to interpreting the ordinance, and noted that in cases of ambiguity it should be favor the free use of property. Thus, if the City is going to draw a line requiring a certain time period of occupancy in order for property to be considered a dwelling or residence, then it needs to do so by enacting clear and unambiguous law. Since the City offered no authority that anything about the concept of “residential” distinguishes between short-term and long-term occupancy, the court found the Ordinance did not clearly and unambiguously prohibit this use. The court therefore affirmed the circuit court’s order reversing the decision of the Board.

Heef Realty and Investments, LLP v City of Cedarburg Board of Appeals, 2015 WL 442445 (WI App. 2/4/2015)

The opinion can be accessed at: https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=134011

A group of homeowners objected to the Durham City–County Board of Adjustment’s decision to approve construction of a 120–foot–tall cell tower on the property of St. Barbara Greek Orthodox Church. The Respondents include the City of Durham and Durham County, who approved the plans; the Greek Orthodox Community of Durham, which owns the land where the tower will be built; telecommunications conglomerate SprintCom, which will build, own, and operate the tower; and Philip Post & Associates, Inc., which filed the initial application to build the tower on behalf of SprintCom. Petitioners argued the trial court erred as a matter of law in affirming the Board of Adjustment’s determination that SprintCom’s proposed cell tower, which is designed as a “monopine” in order to blend in with a nearby grove of trees, qualifies as a concealed wireless communications facility as defined by Section 16.3 of Durham’s Unified Development Ordinance.

In analyzing this claim, the court looked to the ordinance in question, the Durham Unified Dev. Ordinance, which incentivized the construction of concealed WCFS. It defined a concealed WCF’s as “a WCF, ancillary structure, or WCF equipment compound that is not readily identifiable as such, and is designed to be aesthetically compatible with existing and proposed uses on a site.” As to whether the monopine was readily identifiable, the court found that the UDO’s plain language made it clear that the test was not whether or how quickly a longtime resident or passing motorist would notice this giant fake pine tree’s true nature; rather, the test was whether SprintCom’s proposed monopine design serves a secondary function that helps camouflage the tower’s function as a WCF. Thus, the court found that SprintCom’s proposed monopine tower was not readily identifiable as a WCF.

Second, the court found that in light of the evidence in the record that monopine towers generally resemble tall trees, SprintCom’s proposed monopine tower’s secondary function as a tree was aesthetically compatible with the Church property’s existing use as a church in a developing rural residential neighborhood, surrounded by houses and trees. Petitioner’s argument was therefore rejected, and the court held that the trial court did not err in affirming the Board of Adjustment’s determination that SprintCom’s proposed monopine tower qualified as a concealed WCF as defined by UDO section 16.3.

Fehrenbacher v City of Durham, 2015 WL 426058 (NC App. 2/3/2015)

The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=32215

Annette and Aaron Efta, Paul Corcoran, and the Appellants (collectively “the Plaintiffs”) own Lots 4, 5A, 6A, 7, 8, 9, and 10 of the 17th Filing for Lake Hills Subdivision. Lake Hills Golf, LLC owns Lot 5 in Tract B1 (“Golf Course Property”), which is also in the Lake Hills Subdivision and is adjacent to the Plaintiffs’ properties. The present case concerns a wall that the Defendants constructed near the border shared by the Golf Course Property and the Plaintiffs’ properties. Following completion of the wall, the Plaintiffs sued the Defendants, claiming, in relevant part, that the wall was constructed in violation of the Restrictions, that the wall constituted a nuisance, and that the wall constituted a spite fence. The District Court granted summary judgment on the claim that the wall was a spite fence. It determined that recovery on a spite fence claim is only allowed where the defendant receives no benefit from the wall or fence. Deciding that there was no genuine issue that the wall in this case prevented trash and trespassers from entering the golf course’s 10th fairway and deciding that this was a beneficial, non-spite use, the District Court granted summary judgment and dismissed the spite fence claim.

The court noted that the District Court erred in its interpretation of what a nuisance was, and instead relied on a Montana statute, which stated “anything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property … is a nuisance.” Therefore, the court found that while there are beneficial uses to defendants from such activities and structures, such beneficial or reasonable uses should not have prevented this Court or lower courts from finding that the activities and structures were nuisances. Since no evidence indicated the Defendants waived the covenant against building on the land, or that such a wall was incidental to the use of the golf course, the court reversed the District Court’s holdings as to the nuisance claim and remanded the case.

Bennett v Hill, 2015 WL 446551 (MT 2/3/2105)

The opinion can be accessed at: https://mtlawlibrary.wordpress.com/2015/02/04/opinion-bennett-et-al-v-hill-et-al/

San Luis Obispo City Council Members Dan Carpenter and John Ashbaugh owned real property within the boundaries of an area where the City Council was to award a grant. This grant proposed physical alternatives and policy changes that would include or exclude specific sites throughout the City. The applicable standard for a property directly involved is the “one penny rule,” which provides that a governmental official’s real property is presumed to be material unless proof is provided showing that it is not reasonably foreseeable that the official would benefit a penny’s worth on the property, and in regards to an indirect involvement of an official’s property, the financial effect of a governmental decision is presumed not to be material unless it can be shown that the development could have an economic interest on the property, the use of the property has an economic interest to the official or if the character of the neighborhood would be effected.

The commission noted that the councilmen did not provide enough facts to determine whether the grant had an indirect material affect on their property. The commission concluded by finding that the councilmen had a prohibited conflict of interest due to location of their properties to the grant project, and that neither official may participate in a segmented decision until the decision in which there was a conflict of decision has been decided.

J. Christine Dietrick, CA FPPC Adv. A-13-160, 2014 WL 764125 (2/10/2104)

Following a denial of Plaintiff’s application to construct a 38-unit residential subdivision, Plaintiff appealed alleging that the commission illegally and arbitrarily predetermined the outcome of the applications, and that the public hearing was motivated by bias and personal animus. The trial court found that Longhi, a member of the commission, had a conflict of interest due the bias against one of the plaintiffs, a former social friend.

In deciding whether the plaintiff waived a claim of bias when he failed to raise it in the commission hearing, the Connecticut appeals court held that the statements made by Longhi that “she wanted Tallarita [plaintiff] to suffer the same fate of denial by the commission that she had suffered,” removed the incident of bias from the waiver rule. The court further found that evidence of bias may be cumulative, that specific evidence of bias is not examined in isolation, and that the comments made after the hearing were an integral part in the denial of the plaintiff’s application. The court concluded by finding that Longhi had an ex parte communication when she met with an official from the Hazardville Water Company about the property in dispute, and the Commission failed to show that the ex parte communication was harmless. Given these reasons, the court fund that Longhi influenced the other members of the commission, and that the plaintiff did not receive the fair hearing to which it was entitled.

Villages, LLC v. Enfield Planning and Zoning Commission, 149 Conn. App. 448 (4/15/2014)

The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP149/149AP244.pdf

Council Member Robb Davis had a yearlong residential lease that did not provide for an option to renew or extend the term. The City Council was considering a number of projects that were located relatively close to the Mr. Davis’s rented residence. California law “prohibits any public official from making, participating in making, or using his or her official position to influence a governmental decision in which the official has a financial interest.” Under the Fair Political Practices Campaign Act, a financial interest exists is when “it is reasonably foreseeable that the decision will have a material financial effect on one or more of the public official’s interests.”

In determined whether Council Member Davis had a conflict of interest, the California Pair Political Practices Commission stated that the effect of a decision is material as to a leasehold interest in real property if the decision will change the termination date of the lease, increase or decrease the potential rental value of the property, increase or decrease the rental value of the property, impact the official’s right to sublease the property, change the official’s actual or legally allowable use of the real property or impact the official’s use and enjoyment of the real property. Further, the effects on the real property must be reasonably foreseeable and the factors only apply before the termination of the lease.

The Commission found that the impact on the rental value might not be realized until after Mr. Davis vacates the unit and there is a potential but not actual possibility that the rent will change. As to recommendations on new parking management, the Commission noted that Mr. Davis did not own a car, and his lease includes an option to rent parking, which he has not exercised. Therefore, there was no conflict of interest because neither he nor the lease property was going to be affected by the decision. Further, the parking decision was not going to affect either the termination date of the Mr. Davis’s lease nor the potential rental value of the leased property. Therefore, the decision will not have a material financial effect on the Mr. Davis’s interest.

The decision to extend the lease for downtown buildings also would not change Mr. Davis’s potential rental value of his leased property and the approval of a contract with the environmental and planning consultants for preparation in itself would not affect Mr. Davis’s use and enjoyment and would not result in a conflict of interest, as it does not change the termination date of the lease, increase or decrease rent value or affect the legally allowable use of the property. In regard to hotel proposals and the establishment of an art entertainment district, the Commission found that the projects would not change the termination date of Mr. Davis’s lease, that the impact on traffic near Mr. Davis’s residence due to the development of hotels would have less than a significant impact on the property and the development of an art studio would not effect the use or enjoyment of the property.

HARRIET A. STEINER, CA FPPC ADV. A-14-175, 2014 WL 5797812 (2014)

Following the denial by the zoning board of an application for certain setback and area variances for a second-story addition to an accessory building, and an affirmance by the trial court, petitioner appealed. The appellate court affirmed the judgment and holding that the finding of the Board of Zoning Appeals that the detriment to the community outweighed the benefit of granting the requested variances had a rational basis in the record and was not arbitrary and capricious.

The court reiterated the statutory test, that in determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted. A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance”. Further, in making that determination, the personal observations of members of the zoning board may be considered.

Here, the evidence before the Board and the Board’s visual inspection of the property supported its conclusion that granting the proposed variances would be a detriment to nearby properties and produce an undesirable change in the character of the neighborhood. Additionally, the Court found that the Board rationally concluded that the requested variances were substantial in nature and that there was a feasible alternative to increasing the size of the accessory building, since there were other structures on the property which could provide additional storage space. Likewise, the petitioners’ hardship was self-created in that they completed the additions to the accessory building without obtaining a building permit. Further, the Board “was entitled to consider the effect its decision would have as a precedent”

Sacher v. Village of Old Brookville, 124 A.D.3d 902 (N.Y. A.D. 2 Dept. 1/28/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_00773.htm

Woody’s Group Inc. owned Woody’s Wharf a long-established restaurant overlooking the harbor in Newport Beach, California.. It has been open late on weekends and has allowed interior dancing since its inception. The neighborhood was a “mixed use.” The Newport Beach Planning Commission voted to approve a conditional use permit and variance to allow Woody’s to have a patio cover, remain open until 2 a.m. on weekends, and allow dancing inside the restaurant. Four days later, Councilmember Mike Henn (“Henn”) sent the city clerk an email in which he made an “official request to appeal” the planning commission’s decision because he “strongly believed” the “operational characteristics requested in the application and the Planning Commission’s decision were inconsistent with the existing and expected residential character of the area and the relevant policies of the voter approved 2006 General Plan.”

The city council heard Henn’s appeal and voted to reverse the planning commission’s decision. Woody’s sought administrative mandate to overturn the resolution, also asserting a 1983 claim. The city filed a cross-complaint for injunctive relief. The city obtained a preliminary injunction that prohibited Woody’s from operating after 11 p.m. or allowing dancing. The Superior court denied Woody’s application for a writ of administrative mandate.

The appeals court found that the City Council violated at least two basic principles of fairness in overturning a permit application approved by the city’s planning commission.
First, you cannot be a judge in your own case. In this case Henn, having already voiced his “strong” opposition to Woody’s application, was allowed to appeal the approval of Woody’s application to the very body on which he sat, where he did his best to convince his colleagues to vote with him against the application.

Second, you cannot change the rules in the middle of the game. The Newport Beach Municipal Code required appeals from the city’s planning commission to the city council be brought by “interested parties,” who pay a filing fee and submit their appeal on a form provided by the city. The Newport Beach Municipal Code made no provision for appeals by council members acting in their role as council members. The city council violated its own municipal code by entertaining Henn’s appeal even though he didn’t follow the procedures laid out in the code, and then retroactively tried to justify that violation by claiming the city has a custom of extending such lenity to council members.

Further, under BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 97 Cal.Rptr.2d 467. When functioning in such an adjudicatory capacity, the city council must be “neutral and unbiased.” The rule against bias does not require the applicant to prove actual bias. Rather, there must not be an unacceptable probability of actual bias on the part of the municipal decision maker. Bias, either actual or an “unacceptable probability” of it, alone is enough on the part of a municipal decision maker is to show a violation of the due process right to fair procedure.

Here, Woody’s had established an “unacceptable probability of actual bias” on Henn’s part. Henn’s “notice of appeal” by email showed he was strongly opposed to the planning commission’s decision on Woody’s application. Also, Henn was the one to propose the motion that the lower decision be overturned. Henn’s speech to the council had been written out beforehand, wholly belying his own self-serving comment at the hearing that “I have no bias in this situation.” He should not have been part of the body hearing the appeal.

Further, the problem of bias is amplified when it is combined with the related phenomenon of a city violating its own procedure by initiating an appeal to itself. Prior caselaw zeroed in on the fact the city’s municipal code did not entitle the council to bring an appeal to itself. In doing that, said the court, the council “acted in an arbitrary and high-handed manner.” It was the fact “the Council made sure the decision did not stand unchallenged,” in the context of the lack of authority to initiate the appeal in the first place, that constituted a violation of the due process right to a fair procedure. That court qualified its conclusion, stating, “Our holding should not be read as invalidating all appeals taken by a city council or other governing body to itself from a decision of a subordinate agency. However, that if such a procedure is contemplated, it should be authorized by the ordinances or rules which govern appeals to such entity, and some direction should be given in such ordinances or rules concerning specification of grounds and appropriate burdens of proof. No elected individual appealed here. The Council appealed. Had a single council member been the appellant, and complied with the municipal code, he or she might have been disqualified but the remainder of the City Council could have voted.” The earlier court found a violation of due process because the city council’s appeal to itself was not authorized by the city’s own ordinances or rules.

Regarding, whether Henn’s appeal was authorized by the city’s own municipal code, the court stated the Newport Beach Municipal Code dealing with appeals from planning commission decisions does not have a provision for free appeals by city council members. Under the Newport Beach Municipal Code, the reviewing body hearing an appeal shall hear testimony of the appellant, the applicant, and any other interested party ” again stressing the restriction of appeals to interested parties. The fact the reviewing body was acting in an adjudicatory capacity is then emphasized by language making clear that the body is to act as a fact-finder. The Newport Beach Municipal Code did not allow for city council members bringing appeals from city planning commission decisions to themselves. Further, under the canon of expressio unius est exclusio alterius, the use of the phrase “interested party” without explicit provision for a city council member exception—indicates that city council members would have to be disqualified from participating in any appeal they brought. If the code says “interested person” under the heading of eligibility, it is simultaneously conveying the thought that dis interested persons are not eligible. An “interested party” for purposes of bringing the appeal cannot simultaneously be a “disinterested person” for purposes of affording due process in the hearing of the appeal.

The custom of the city council letting its members appeal planning commission decisions, was based on the only written authority in the very document embodying the city’s council’s decision, which recited the city has a “long-standing policy and practice of not requiring Councilmembers to pay a filing fee because their appeals were taken for the benefit of the City’s residents.” The court noted that the assumption that by definition a city council member who appeals is doing so “for the benefit” of the residents, as distinct from some personal bias, was not based in logic. he court concluded that the city’s incantation of a “policy and practice” in direct violation of its own code could not conform that alleged policy and practice to due process.

Woody’s Group, Inc. v. City of Newport Beach, 2015 WL 367448 (Cal. App. 1/29/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/summary/opinion/ca-court-of-appeal/2015/01/29/272691.html

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