In 2002, Appellant Davis Wood obtained a building permit from the Town of St. Michaels and began constructing an addition to a residential structure. In 2004, once the addition had been substantially completed, one of Mr. Wood’s neighbors, James Valliant, complained to the Town’s Zoning Inspector that the addition appeared to violate the rear setback restriction line. Instead of initiating a zoning enforcement action against Mr. Wood, the Zoning Inspector issued Mr. Wood a temporary occupancy permit. In 2010, the Zoning Inspector determined that it would impose an undue hardship if she required the removal of the encroaching structure, and issued Mr. Wood a final occupancy permit. Mr. Valliant appealed the Zoning Inspector’s determination, and the Town’s Board of Zoning Appeals affirmed the Zoning Inspector’s action in 2013. Mr. Valliant then filed a petition for judicial review in the Circuit Court for Talbot County, which struck down the Board of Zoning Appeals’ decision.

At issue in this case was whether Mr. Valliant’s petition for judicial review was precluded by CJP § 5-114. Here, the court determined that findings of the Board of Zoning Appeals indicated that the setback line restriction, the primary focus of Mr. Valliant’s challenge, first occurred sometime prior to February 12, 2004. Even assuming that Mr. Valliant’s filing of an administrative appeal of the Zoning Inspector’s issuance of the final occupancy permit constituted the initiation of an action or proceeding as contemplated by CJP § 5-114(b)(1), the appeal to the Board of Zoning Appeals had not been filed until June 21, 2010: over three years after the date the setback violation first occurred. Additionally, the court held that the time limit imposed by CJP § 5-114(b)(1) was a statute of repose; as such, the court did not consider whether the deadline for initiating an action was extended. Accordingly, the Circuit Court’s holding was reversed.

Wood v Vlliant, 2017 WL 819749 (MD. 2/28/2017)

Lance Shortt and Sandra Shortt owned property in East Marlborough Township consisting of approximately 11 acres and zoned in an RB Zoning District. The Shortts wanted to use the property for what they contend is a second principal use as a “place of private assembly.” As such, the Shortts’ planned to lease their property to customers as “a place to accommodate meetings, events, and other private group assemblies, including private parties, business conferences, weddings, seminars and similar activities and might include the providing of catered meals to accommodate the attendees. Contending that the Ordinance did not allow this proposed use in any of the Township’s zoning districts, Landowners filed a substantive validity challenge provided for in Section 916.1(a) of the Pennsylvania Municipalities Planning Code (MPC) alleging that the Ordinance was invalid as a de jure exclusion. In this case, Landowners appealed from the Court of Common Pleas of Chester County’s order affirming the Zoning Hearing Board of East Marlborough Township’s denial of their validity challenge.

On appeal, Landowners’ argued that the Ordinance was unconstitutionally exclusionary because it did not permit a primary use for leasing property to private parties regardless of the activities to occur on the property. At the outset, the court noted that a zoning ordinance is not exclusionary just because it does not have a defined use that recognizes a landowner’s business model or it does not mention every conceivable commercial operation deriving from a combination of legitimate commercial uses. Here, Landowners’ proposed use was viewed as a business model that would allow someone to lease their property to undertake functions that, Landowners admitted, would be permitted uses in other Township zoning districts. The court found that even though their business model was different, as long as the uses for which the property was being sought were allowed in a Township district under the Ordinance, the Ordinance was not exclusionary.

The Landowners next alleged that their proposed use was excluded from the Ordinance because its functions did not fall squarely within the definition for hotel. The court determined that the definition for hotel provided for more than just lodging, but also included hosting private functions, events and services. As such, the court found that any activities under the Proposed Use were also permitted under a hotel use. Additionally, the court found that there was nothing to prevent a hotel from leasing out its facilities in the same way as the landowners planned on doing with their planned use. Accordingly, because there were a number of areas within the Township where the Ordinance permitted Landowners to accomplish their proposed use, the court affirmed the trial court’s order.

Shortt v East Marlborough Township Zoning Hearing Board, 2017 WL 817121 (PA Cmwlth 3/2/2017)

The Board of County Commissioners of Queen Anne’s County adopted Resolution 14-31, which approved Queenstown’s new zoning classification for the subject property, and allowed land uses at a substantially higher density from what previously had been allowed. Soon after, four new County Commissioners were sworn into office. The County Commissioners then adopted Resolution 14-33, which withdrew, rescinded, voided, and nullified Resolution 14-31. The Town Commissioners of Queenstown and the Waterman Family Limited Partnership, the owner of the subject property, filed a petition for judicial review and request for a writ of administrative mandamus. Waterman also filed a declaratory judgment action in the same court against the County Commissioners. The circuit court entered summary judgment in favor of Waterman and the Town Commissioners and declared Resolution 14-33 “null, void and of no legal force and effect” on the ground that the County Commissioners lacked the “authority to repeal or rescind 14-31.”


On appeal, appellants argued that the circuit court erred in granting summary judgment in favor of Waterman and the Town Commissioners because, under Article XIF, Section 6 of the Maryland Constitution, the county had the legal authority to adopt Resolution 14-33. Specifically, they contended that both Resolutions were public local laws, not public general laws; as such, LG § 4-416 could not restrict Queen Anne’s County’s power under the Maryland Constitution to repeal a public local law like Resolution 14-31. The court found that Resolutions 14-31 and 14-33 were public local laws adopted pursuant to Article XI-F, Section 6, and subject to rescission since both Resolutions applied to the Wheatlands Farm property that was located within “a single subdivision of the state.” Despite appellees’ argument that the Town of Queenstown was a subdivision separate from the County, the court held the term “subdivision” referred to a county or Baltimore City: not a municipality or municipal corporation. As such, the court reasoned, any decision regarding the zoning density limits applicable to Wheatlands Farm would have no consequence on any land outside of Queen Anne’s County and would only be a matter of local concern. Additionally, the court noted that the instant case did not involve a State mandated program requiring uniformity.


Moreover, even absent an express provision in LG § 4-416 permitting the rescission of a local resolution, the court found the County had the inherent power to do so. Here, there was no assertion that any rights vested during the short time that elapsed between the adoption of Resolution 14-31 and the adoption of Resolution 14-33.  The judgment was reversed.


Boomer v Waterman Family Limited Partnership, 2017 WL 823712 (MD 2/2/2017)

 

Chestnut Hill Community Association appealed from the Philadelphia County Common Pleas Court’s order denying their appeal from the City of Philadelphia Zoning Board of Adjustment’s decision granting a variance to Jonathan Bernadino and Lindsay Bernadino for an open-air parking space at their property. The Bernadino’s proposed to create a 12’ by 19’4” driveway that would be accessed by a 12’ curb cut at the front of the property. The Department refused the request because the proposed space would not meet the required setback requirements and Section 14-803(1)(b)(.1)(.a)(.ii) of the Philadelphia Zoning Code expressly prohibited accessory surface parking spaces in front, side and rear yards.


On appeal, Appellants argued that the ZBA misapplied Section 14-803(1)(b)(.1)(.a)(.ii) of the Zoning Code, and failed to make findings that physical circumstances unique to the property created an unnecessary hardship. Appellants also alleged that the ZBA and the trial court erred by failing to fully consider the Zoning Code’s spirit and purpose, the neighborhood’s essential character, and the community interest and public safety. The court found that in circumstances such as this, in which owners are prohibited from having a rear parking space, the owners’ physical inability to reach such a space could not constitute a hardship. As such, the court held that there was no substantial evidence to support the ZBA’s conclusion that denying the variance would result in a hardship due to physical circumstances or conditions unique to the property. Appellants next argued that their hardship was the lack of parking available in the neighborhood, particularly at night when they returned home from work. The court rejected this argument, finding that while a shortage of neighborhood parking could present a hardship to owners, it was not a hardship based upon a condition unique to the property. Accordingly, the trial court’s order was reversed.


In Re: Appeal of Chestnut Hill Community Association, 2017 WL 835411 (PA Cmwlth 3/3/2017)

 

In this case, Plaintiff Branic Intern. Realty Corp., a building owner, brought an Article 78 petition to annul the Environmental Control Board’s determination that it violated Administrative Code of City of NY § 28–118.3.2, prohibiting changes inconsistent with existing certificate of occupancy.

The record reflected that the DOB inspector who issued the notice of violation admitted at the hearing that he erroneously treated petitioner’s three adjoining buildings as one, and was unable to identify any apartments he visited in that building, or any occupants he spoke with. Accordingly, the court found that the determination that petitioner violated Administrative Code of City of NY § 28–118.3.2 by having its premises used as a transient hotel, contrary to the records of the Department of Buildings (DOB), was not supported by substantial evidence.

Branic Intern. Realty Corp. v. City of New York, 146 A.D.3d 700 (1 Dept.  2/26/2017)

Appellants, the Santa Clara County Office of Education, the Santa Clara County Board of Education, Rocketship Education, and Rocketship Eight Charter School, determined that county boards of education may issue zoning exemptions pursuant to section 53094. As such, the Santa Clara County Board of Education approved a resolution exempting from local zoning ordinances property to be used by Rocketship Education for a charter school. Respondents, San Jose Unified School District and Brett Bymaster, argued that county boards of education had no authority to issue zoning exemptions under section 53094. Government Code Section 53094 provides, “the governing board of a school district…by a vote of two-thirds of its members, may render a city or county zoning ordinance inapplicable to a proposed use of property by the school district.” The trial court ruled that the County Board lacked the authority to invoke section 53094.

The Government Code did not define the phrase “governing board of a school district,” or the term “school district,” for purposes of section 53094. The court found that the dictionary definition of the phrase “governing board of a school district” meant the “body that controls or manages public schools in a particular region.” However, the court determined that the term “school district” could also reasonably be construed more narrowly to refer only to those entities commonly referred to as “school districts.” After reviewing the legislative history, the court held that empowering county boards of education to issue zoning exemptions for charter school facilities would not advance the purpose of section 53094 to prevent local interference with the state’s sovereign activities. Accordingly, section 53094 was found not to authorize county boards of education to issue zoning exemptions for charter school facilities.

The court next found that the legislative scheme did not prevent charter schools from competing with school district schools, as the Legislature intended in enacting the Charter Schools Act. As such, the court declined to rewrite section 53094 under the absurd consequences doctrine. Additionally, the court rejected appellants’ argument that a construction of section 53094 in which county boards of education could issue zoning exemptions violated article IX, section 6 of the Constitution by giving cities the right to exclude county-run public schools. Here, the court determined that there was no risk of such exclusion due to the school district’s obligation to provide facilities. Lastly, appellants presented evidence that eight community college districts invoked the section 53094 zoning exemption on 10 occasions between 1996 and 2009; however, the court held that this evidence did not have any bearing on whether a county board of education could use the section 53094 exemption in connection with charter school facilities. The court therefore affirmed the trial court’s holding, and appellants’ claims were dismissed.

San Jose Unified School District v. Santa Clara County, 7 Cal.App.5th 967 (CA. App. 1/24/2017)

Christian Assembly Rios de Agua Viva entered into a contract to purchase property in the City of Burbank, Illinois. However, in order to use that property for religious purposes, the Church had to first obtain a special use permit (“SUP”). After the City denied the SUP, the Church terminated the contract and filed this lawsuit to recover damages from the City for alleged violations of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) along with several other claims.

In reviewing the motion to dismiss, the Court narrowed the scope of the Church’s RLUIPA substantial burden claim after determining that the Church could proceed based only on the theory that “the delay, uncertainty, and expense that accompanied its SUP application, which allowed the City time to amend the Prior Ordinance so as to prohibit the Church from using the property as it wished” constituted a substantial burden. Here, despite assuming the risk that the City would not approve its SUP application or that the City would amend the Prior Ordinance so as to completely foreclose the use of the property for religious purposes, the Church proceeded with its SUP application. In doing so, the Church expended time and money and faced uncertainty in the process over a three to four month period. As such, the Church had no reasonable expectation of using the property for religious purposes; therefore, any delay, uncertainty, or expense the Church experienced or incurred while the City considered the SUP application and adopted the Amended Ordinance was found to not constitute a substantial burden. Additionally, the court held that the month delay in the review of the Church’s application could not be considered material; as the record indicated that the City typically took three to four months to provide decisions on SUP applications. Accordingly, the court granted summary judgment for the City on the substantial burden claim. Furthermore, because the court found the Church could prevail on its RLUIPA substantial burden claim, the court likewise granted the City summary judgment on the free exercise claim.

Next, the Church made a facial challenge to the Prior Ordinance, claiming that at the time it entered into the contract to purchase the property and applied for the SUP, the Prior Ordinance violated RLUIPA’s equal terms provision. Specifically, the Prior Ordinance allowed dance studios, schools, halls, business associations, labor associations, civic, social, and fraternal associations, political associations, and funeral parlors as permitted uses in the “C” commercial district, while Churches required a SUP to locate in the “C” commercial district. Since the City failed to provide any evidence substantiating its treatment of churches from non-religious assemblies allowed as of right in the “C” commercial district under the Prior Ordinance, the court held that the Prior Ordinance violated the equal terms provision on its face. As to damages, the court held that regardless of whether the Church’s equal terms claim was considered a facial or as applied challenge, the Church “already suffered an injury from the unconstitutional ordinance” because it could not purchase the property under the terms of its original contract as a result of the Prior Ordinance.

Christian Assembly Rios De Agua Viva v. City of Burbank, Illinois, 2017 WL 677794 (ND IL 2/21/017)

State Environmental Quality Review Act – Proposed Amendments 2017

The New York State Department of Environmental Conservation (DEC) proposes to amend the regulations that implement the State Environmental Quality Review Act (SEQR, Title 6 New York Code of Rules and Regulations (6 NYCRR), Part 617). The principal purpose of the amendments is to streamline the SEQR process without sacrificing meaningful environmental review.

Although the DEC has not identified any potentially significant adverse environmental impacts that will result from the proposed amendments, the DEC has chosen to use a generic environmental impact statement (GEIS) to discuss the objectives and the rationale for the proposed amendments and provide opportunity for public participation. The DEC has also combined the GEIS with the impact statements required by the State Administrative Procedure Act to reduce duplication.

Comments on the proposed amendments may be submitted to the New York State Department of Environmental Conservation, Division of Environmental Permits, Attn: James J. Eldred, Environmental Analyst, 625 Broadway, Albany, New York 12233-1750 or by e-mail to: seqra617@dec.ny.gov. Comments will be accepted until the close of business on May 19, 2017. A public hearing will be held on March 31, 2017. The hearing will begin at 1:00 pm at 625 Broadway, Albany, New York, Public Assembly Room 129.

Proposed Amendments to 6 NYCRR Part 617, Draft Express Terms (PDF) (140 KB)

Draft GEIS and SAPA Impact Statements (PDF) (563 KB)

Final Scope (PDF) for the GEIS on the 2012 Proposed Amendments to SEQR (73 KB)

Draft Scope (PDF) for the GEIS on the 2012 Proposed Amendments to SEQR (50 KB)

Notice of Intent (PDF) (19 KB)

On May 28, 2013, the Franklin Township introduced Franklin Township, N.J., Ordinance 4021–13, to amend Schedule I of the Ordinance, to delete “garden apartment developments” from permitted conditional uses in the GB zone. This amendment to the ordinance was adopted on July 16, 2013, and became effective August 5, 2013. The day before the amendment to the Ordinance was adopted, Dunbar filed a submission with the Planning Board seeking site plan approval and a (d)(3) conditional use variance for its proposed garden apartment project in the GB zone. However, the day after the amendment to Schedule 1 to the Ordinance became effective, Senior Zoning Officer Vincent Dominach identified items “needed for completeness” of Dunbar’s application, and advised that pursuant to the newly adopted ordinance, Dunbar was required to seek a (d)(1) variance. After Dunbar submitted additional materials, Dominach advised the Board that Dunbar’s “submittal met the definition of ‘Application for Development’ ” and was “complete” as of October 29, 2013. The trial judge found the Ordinance did not require completeness for a submission to qualify as an application for development, and the Ordinance was consistent with the Municipal Land Use Law (MLUL).

As applicable to this case, the court noted that the protection from having to comply with the amendment, afforded by N.J.S.A. 40:55D–10.5, would be triggered by the “submission of an application for development.” On its face, the court found the statute did not require a “complete” application, and this interpretation was further supported by the MLUL’s definition of “application for development,” N.J.S.A. 40:55D–3. Furthermore, the interpretation of the Ordinance as requiring a complete application as proposed by the Township was not authorized by any “permissive” provision of the MLUL and failed to advance any of the enumerated goals of the MLUL.

Despite this, the court found that the fact the Board erred in concluding it was entitled to alter the MLUL’s definition of “application for development” and adopted a definition that required completeness was not fatal to finding its conclusion should be affirmed. Here, it was undisputed that Dunbar’s July submission did not include all the documents required by ordinance at the time it was filed. Instead, the documents necessary to satisfy the MLUL definition of “application for development” were not submitted until after the amendment to the Ordinance became effective. Accordingly, the court reversed, finding that the Board’s conclusion that Dunbar was not entitled to the benefit of the time of application statute was not arbitrary, capricious or unreasonable.

Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin, 2017 WL 586506 (NJ App. 2/14/2017)

In 2015, the Oconto County Zoning Department conducted an on-site inspection of Robert and Wendy Kolkowski’s property to determine whether the property was in violation of the Oconto County Zoning Ordinance. Kevin Brehmer, the Oconto County Assistant Zoning Administrator, determined that the property was in violation of several sections of the ordinance. After Plaintiffs failed to bring their property into compliance, the Department issued one citation for operating a junk yard without permits and another citation for having three or more semi-trailers on the property. The Kolkowski’s claimed they needed the equipment to “take care of the life God gifted to them and that they cannot come into compliance with the Oconto County Zoning Ordinances without conflicting with their duty to God.” The circuit court found Kolkowski guilty of both citations, assessed a fine on each citation, and ordered compliance within 30 days and payment within 60 days. Additional citations for noncompliance were issued to both Robert and Wendy Kolkowski after 60 days, and Robert Kolkowski served 8 days in jail for failing to bring his property into compliance.

In this appeal, Defendants argued that summary judgment was appropriate under the doctrine of claim preclusion because Plaintiffs had the opportunity to litigate all of their claims in the Oconto County Circuit Court and failed to do so. The court noted that Plaintiffs’ prior litigation in the Oconto County Circuit Court resulted in a judgment on the merits in a court with jurisdiction, in which the court found that Brehmer and Mick properly acted in a discretionary manner in issuing and prosecuting the noncompliance citations, respectively. Furthermore, Plaintiffs’ attempt to attack the validity of not only the circuit court’s judgment in imposing the forfeitures, but also the validity of the Oconto County Zoning Ordinance as applied to their property, was already decided in the lawsuit filed in Oconto County Circuit Court. Additionally, the actions which Plaintiffs’ complaint was based in this case arose from the same transaction: the Kolkowski property’s nonconformance with the ordinance and the decision by the Oconto County Zoning Department to issue citations.  Accordingly, the court held that the causes of action between Plaintiffs’ case in this court and the prior cases filed in the Oconto County Circuit Court were identical, and Plaintiffs’ claims were therefore precluded.

Kolkowski v  Oconto County Zoning Department, 2017 WL 530514 (ED WI 2/9/2017)

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