Posted by: Patricia Salkin | November 18, 2019

PA Appeals Court Dismisses Appeal Over Historic Designation as Moot

This post was authored by Rachel Silverstein, Touro Law Center

A Philadelphia ordinance authorized the Philadelphia Historical Commission (the “Commission”) to designate historical sites as the Commission saw fit for the city. Under the ordinance, no one could alter or destroy a site deemed historical by the Commission. The Commission sought to designate as an historical site a Philadelphia residence. The property owners, the Barnes’ family, had owned the property for 115 years. Barnes did not want the property designated as a historical site because his mother wanted to turn the property into a funeral parlor. Barnes and O’Brien, Barnes’ attorney, opposed the property’s nomination. Still, with a 6 to 4 vote, the Commission designated the property because it satisfied the criteria of the ordinance. Barnes appealed the Commission’s decision. The trial court affirmed. Barnes appealed to the Commonwealth Court of Pennsylvania. The Commission then filed to dismiss the appeal on mootness grounds. Barnes argued that the Commission’s designation “affected only the buildings, and not the land . . .” The ordinance required that the Commission may only approve altering or demolishing a historic building or construct a building in a historic zone. The court interpreted the ordinance to allow not only specific buildings, but also surrounding land to be included. Therefore, the case was dismissed as moot.

Barnes v. Philadelphia Historical Commission, 216 A.3d 590 (PA Commnwlth 10/7/2019)

Posted by: Patricia Salkin | November 17, 2019

Annual Land Use Law Conference at Pace Law School – Dec. 5th

The Land Use Law Center is pleased to announce the 18th annual Alfred B. DelBello Land Use and Sustainable Development Conference. Scheduled for Thursday, December 5, 2019, this year’s conference theme is Building the Infrastructure for Our Sustainable Future.

We invite you to spend the day at this educational event, with more than 250 attorneys, business professionals, and local leaders in attendance to learn about national, regional, and local innovations, challenges, and best practices.
As in previous years, the Land Use Law Center has been working on developing a conference program that will showcase innovative best practices in land use and sustainable development. The Center is pleased to announce that this year’s luncheon keynote presenter will be Tom Murphy, Urban Land Institute Senior Resident and Canizaro/Klingbeil Families Chair for Urban Development. A former mayor of Pittsburgh, Mayor Murphy has extensive experience in revitalization and what drives investment and ensures long-lasting commitment. He will be joined by the opening keynote speaker Thomas W. Smith, III, the executive director of the American Society of Civil Engineers. Mr. Smith and ASCE will speak about future-scenario analysis that allows us to anticipate the coming changes and their effects on infrastructure and communities.
As always, conference participants can earn CLE, APA-CM, AIA/CES HSW and New York State planning and zoning training credits.
Additional highlights of the conference include:
On Wednesday, December 4th, the Center will be hosting a dinner to allow local leaders and sponsors an opportunity to add to their conference experience and network with conference presenters and to honor our Founder’s Award recipient Lester D. Steinman, Esq., Partner, McCarthy Fingar, LLP and former Director of the Edwin G. Michaelian Municipal Law Resource Center of Pace University, Distinguished Young Attorney award recipient Victoria L. Polidoro, Esq., Rodenhausen Chale & Polidoro LLP and Ground Breaker’s Award recipients Kenneth Kearney and Sean Kearney, Kearney Realty & Development Group.
Thursday’s conference will have an afternoon plenary session on the hottest land use cases with the leading land use professors and experts.
Featured sessions on comprehensive and target area plans, zoning tools for infrastructure, housing, building stock, a new economy, water resources, energy projects and so much more.
Event will conclude with the Land Use Law Center’s Alumni Wine & Cheese Reception.
Registration fees will be as follows: General Admission $165, Student/Not for Profit/Government $100 and NYS Attorneys including CLE $360.
Also, if your firm or company is interested, consider sponsoring! The conference provides an excellent opportunity to highlight your organization’s services and network with leaders in the field. Please click here to see the sponsorship opportunities.
Please see the conference agenda for more detailed information on conference sessions. (Coming soon!)

This post was authored by Raymond Fragola ’20 Touro Law Center

The defendant, Paul Breunich owns property at 106 Carter Drive in the City of Stamford. The defendant has a primary residence and multiple accessory structures, which includes a sea cottage. The sea cottage is the accessory structure at the center of this case. During Hurricane Sandy, the sea cottage was damaged and has remained uninhabited since that time. The defendant applied for, and was granted variances from the Zoning Board of Appeals of the City of Stamford (The ZBA) for among other variances; to increase the height of the sea cottage from eighteen feet, ten inches to twenty-seven feet, nine inches where fifteen feet is permitted and for a twenty-six foot rear yard setback where thirty feet is required. After hearing arguments from both the plaintiff and defendant, the ZBA issued a decision granting the defendant’s variances finding that the strict application of the zoning ordinance would deprive the defendant of reasonable use of his buildings. Further, the ZBA found these were the minimum variances necessary, and the granting of these variances would not result in injury to the neighborhood.

When a Zoning Board states the reasons for its action, the question for the court is whether the reasons given are reasonable supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. Verillo v. Zoning Board of Appeals, 155 Conn.App. 657, 678, 111 A.3d 473 (2015). It is well settled that courts are not to substitute their judgement for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgement has been reasonably made after a full hearing. Id. The burden of proof to show the board acted improperly is on the plaintiffs. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). In the case at bar, the plaintiff claimed the ZBA acted improperly because the defendant failed to prove a unique hardship, the variance is the result of personal preference and not necessity and lastly that the defendant failed to prove the variance requested was the minimal relief necessary.

The court held that because the defendant’s property was located in both the VE and AE flood zones, it would be impossible for the defendant to meet the new flood zone restrictions without further increasing the height of the sea cottage. The court held that there was sufficient information in the record to demonstrate that the ZBA could show that the need to meet the new flood zone requirements were sufficiently unique to grant the variance in this case. Second, the court held that the increased nonconformity was necessary as it was the only way for the defendant to comply with both the FEMA and the City of Stamford flood regulations. The fact that the defendant was not increasing the habitable space of the sea cottage was cited by the ZBA and the court in demonstrating the variance was out of necessity. Lastly, the court held that the ZBA granted the minimum variance necessary as the plaintiff requested variances which satisfied the minimum requirements of the new flood regulations and further, that other non-conforming structures were to be relocated into compliance as a condition of the variance approval.

Given the ZBA members discussed on the record that the defendant requested the minimum variance required, the living space of the sea cottage did not increase, the defendant was required to bring nonconforming structures into conformity, and the variances requested were not self-created, but unique to the property of the defendant due to new flood zone regulations; the court held that the ZBA did not act unreasonably, arbitrarily, or in abuse of its discretion in granting the defendant’s variance and dismissed the appeal of the plaintiff.

Mayer-Wittman v. Zoning Board of Appeals of the City of Stamford, 333 Conn. 624 ( 11/5/2019).

This post was authored by Michelle Jablonski ’20, Touro Law Center

Plaintiff, Brenda Haryslak, filed an application with the Town Board of Groveland for a special permit to operate a candy and gift shop from her home. The property was in the town’s R-B residential zone, where such use of the residence was not permitted. The board denied the application, and the plaintiff sought judicial review of the board’s decision pursuant to G.L.c. 40A, Section 17. Under the General Law of Massachusetts, appealing the board’s decision requires de novo fact-finding. The board’s decision cannot be changed unless it is unreasonable, whimsical, capricious, or arbitrary. After a de novo trial, the Superior Court judge affirmed the board’s findings that the proposed retail use of the property was not a customary home occupation under the bylaws and that the intended retail use would be detrimental to the surrounding residential properties. In this case, the plaintiff appealed the Superior Court’s determination to the Appeals Court of Massachusetts.

The plaintiff had the burden of establishing that she was entitled to a special permit under the bylaws. She testified that she intended to operate a penny candy and gift shop in an 800-square-foot area of her home. She also testified that she anticipated about forty customers per day and believed that her property would accommodate fourteen parking places in an area adjacent to her residence, that she intended to pave. Further, the plaintiff set out hours of operation and stated that the shop would be open from Monday through Saturday, from 10 a.m. to 6 p.m., and on Sundays, it would be open from 12 p.m. to 6 p.m. In addition, she argued that because other residential properties in the area were allowed to conduct retail operations, such operations are customary within the meaning of the bylaws. The zoning enforcement officer of the Town of Groveland also testified. He stated that, based on his knowledge, there were no other retail candy and gift shops that had received special permits to operate as a home occupation in the town’s residential zone. Further, he testified that many of the retail operations that were offered as examples by the plaintiff were preexisting nonconforming uses and were not home occupations that were authorized by a special permit under the bylaws.

The Appeals Court referenced Section 301.20.2 of the governing bylaws. Under the bylaws, only resident occupants are permitted to conduct customary home occupations, and the home occupation must not be detrimental to the residential neighborhood. If both of the requirements are satisfied, a special permit may be permitted. Further, according to the bylaws, a home occupation is an occupation or profession that is customarily carried on in a dwelling unit or building. The bylaws do not define the term “customarily.” However, there are examples of uses that may constitute a home occupation. A professional office of a physician, dentist, lawyer, engineer, architect, real estate agent, or accountant may represent home occupations. The bylaws also provide examples of uses that may be prohibited, such as tourist homes, barbershops, commercial stables, restaurants, and tea rooms.

First, the court discussed the issue of whether the intended use was customary within the meaning of the bylaws. The court kept in mind that deference is owed to the board in its interpretation of the bylaws. It looked to the nature of the testimony provided by the plaintiff. It concluded that the Superior Court did not err when it held that the proposed use was retail in nature and not customarily found in the residential properties near the plaintiff’s property. The court also looked to the zoning enforcement officer’s testimony addressing the examples of retail occupations that the plaintiff provided. In accordance with the Superior Court’s reasoning, it stated that the officer’s testimony supported the conclusion that the evidence of other retail operations was not instructive to the court. The other properties did not involve similar circumstances and bylaws at the time of their approval. Lastly, this court found no error in the decision that the proposed use would be detrimental to the residential neighborhood. It relied on the plaintiff’s testimony that there would be about forty customers per day, which it believed would be detrimental. The judgment of the Superior Court was therefore upheld, and the plaintiff’s proposed use of her residence was not customary within the meaning of the bylaws and was detrimental to the residential neighborhood. The plaintiff’s special permit application to operate a candy and gift shop at her residence remained denied.

Haryslak v. Town of Groveland, 2019 WL 4620336 (MA App. Ct. 9/19/2019)

This post was authored by Zhao Sun, Touro Law Center

This appeal follows the denial by the Montville BZA of Northstar’s application for a conditional use permit to site a wireless facility.

The first issue was whether the Montville BZA violated NorthStar’s rights under the Telecommunications Act of 1996 (TCA).  The TCA requires, among other things, state or local governments to act on any request for authorization to place, construct or modify personal wireless service facilities within “a reasonable period of time after the request is duly filed.”  The the FCC determined that a reasonable amount of time for a new construction facility was one-hundred-fifty days and defined this period as the “shot clock.” Tolling of the “shot clock” is permissible when the local government is faced with an incomplete application and requests additional information within thirty days of the first filing; or when it is still missing information and requests more information within ten days of the initial request. Here, The Montville BZA denied NorthStar’s application one-hundred-ninety-six days after it was filed. When tolled by thirty-six days, the Montville BZA denied the application one-hundred-sixty days after filing, which is outside the reasonable, one-hundred-fifty-day period declared by the FCC. Therefore, the Court noted that provided NorthStar’s allegations are true, the Montville BZA would have violated NorthStar’s right to a response after a reasonable period of time.

State law provides that every final order or decision of any board or other division of a political subdivision of the state “may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located . . ..”  The Montville BZA takes this to be a requirement for NorthStar to meet before bringing its claim in this Court. The immediately following section of the Revised Code, however, states that “the appeal provided in this section is in addition to any other remedy of appeal provided by law.” By allowing any person to bring a claim in federal court after being “adversely affected by a final action of a State or local government . . . that is inconsistent with this subparagraph,” TCA acts as a remedy of appeal provided by law. . This remedy fits into the alternate appeal permitted by state law.

Montville’s refusal to grant the conditional use permit is a final decision for purposes of the TCA. Therefore, the Court denied Montville’s motion to dismiss.

NorthStar Towers, LLC v. Montville Twp., 2019 WL 5684461 (ND OH 11/1/2019)

Posted by: Patricia Salkin | November 13, 2019

Minneapolis Becomes the First City to Eliminate Single Family Zoning

In October 2019, the Minneapolis City Council adopted a new comprehensive economic and housing plan and a new zoning plan that eliminates the single family zone.  The new plan and ordinance takes effect in January 2020.


This post was authored by Beth Gazes ’20, Touro Law Center

In an action brought by a landowner seeking declaration of entitlement to approval of a subdivision pursuant to state statute R.C. 711.09(C) (the “Statute”), the Court, in affirming the Eighth District Court of Appeals, held that the Statute pre-empts the land use and zoning decision-making authority of the City of Broadview Heights (the “City”) since, under Kearns, where a city’s ordinance is enacted by virtue of police power the Statute must prevail.

The issue arose from a subdivision plan submitted to the City which, as contended by the landowner, was approved pursuant to the Statute as a result of the thirty-day lapse without a response from the City. The City argued that the Statute does not apply to it since, as compared to subsection A of 711.09, it does not utilize the word “city”.

R.C. 711.09 promulgates, among other things, the administrative standards of local governments and subdivision applications, and deems an application approved once thirty days lapse without a response. While subsections A and B apply specifically to a city and village, respectively, the Statute, according the Court, applies to both types of municipalities despite the absence of the word “city”.

As to whether the Statute is subordinate to the City ordinance, B.H.C.O Chapter 24 (the “Ordinance”), the Court held in favor of the landowner since the Ordinance was passed not under the auspices of self-governing power as the City contends, but instead by virtue of its police power. Measuring the facts under the three prong test of Canton, the Court determined that since the Ordinance “does not relate to a matter of internal city governance” but instead regulates the conduct of its citizens when seeking to subdivide real property, the Ordinance must “give way” to the Statute.

The City’s argument in support of distinguishing this case from Kearns rested on two propositions.  First, argued the City, the Court should consider a municipality’s procedural planning regulation – such as administrative procedure – as a self-governing act, in contrast with a substantive regulation which, concedingly, is a police power.  That argument, according to the Court, is not only unprecedented, but would create excessive litigation in differentiating between the two where regulations might “might appear to be procedural on their face but would actually be substantive in their effect.”  As for the City’s second point, the Court was not persuaded by the City’s attempt to distinguish this case from Kearns on grounds that the entity types are different, i.e., a regular planning commission versus a city.  “Which government entity acted does not affect the determination that the action is an exercise of local police powers.”

Wesolowski v. City of Broadview Heights Planning Comm’n, 2019 WL 4418981 (OH 9/17/2019)

This post was authored by Matthew Loeser, Esq.

Appellant, Shelly Materials, Inc., entered into a mineral-rights lease in 2015 for an approximately 225-acre horse-farm property, commonly called Sahbra Farms. The property was zoned “RR, Rural Residential District,” which allowed surface mining as a conditional use upon the approval of an application for a conditional-use permit. Shelly leased the mineral rights of the Sahbra Farms land to engage in surface mining of sand and gravel. When Shelly entered into the lease, surface mining had been conducted on an adjacent property by a different company for a number of years as a permitted conditional use. Notwithstanding this, the Streetsboro Planning and Zoning Commission held that Shelly failed to establish by clear and convincing evidence that its proposed conditional use met the relevant standards outlined in the Streetsboro Codified Ordinances necessary for the issuance of a conditional use permit.

Following this determination, Shelly filed an appeal in the Portage County Court of Common Pleas. The court referred the case to a magistrate, who determined that Shelly had carried its burden of proof as to all six requirements in Streetsboro Codified Ordinance. The court of common pleas adopted the magistrate’s decision. The Eleventh District Court of Appeals then reversed the judgment of the court of common pleas. On appeal, Shelly’s principal argument was that the court of appeals exceeded the narrow scope of its review and conducted a de novo review of the commission’s findings by substituting its judgment for that of the common pleas court with respect to the dispositive issue of “whether the commission erred by finding that Shelly’s expert lacked credibility”.

The record reflected that the Eleventh District reversed the judgment of the court of common pleas on the grounds that the commission had a justifiable reason to reject Shelly’s expert’s opinion. Specifically, Shelly argued that the comparison properties utilized to form the experts’ opinion were further away from the surface mine than the properties at issue. The court found that this was not a question of law for the court of appeals to decide in an administrative appeal under R.C. 2506.04, but was instead a question concerning the weight of the evidence to be given to the expert’s opinion. Here, the court of common pleas weighed the expert’s opinion differently than the commission, despite having no authority to do so. Accordingly, the court reversed the judgment of the court of appeals on this issue.

Shelly Materials, Inc. v. City of Streetsboro Planning and Zoning Commission, 2019 WL 5699511 (OH 11/5/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiffs Sandra Leung and Hsaio Chun Wu were owners and landlords of Al Dente restaurant located at Two Spring Street, Oyster Bay, New York, which was located across the street from Town Hall. The town employees made up approximately 75 percent of Al Dente’s lunch crowd, and attended Al Dente for office parties and other group celebrations. Commissioner of the Department of Planning and Development Frederick P. Ippolito allegedly barred employees from dining there and sent the other individual Defendants to the Premises to again falsely cite the Premises for Town Code violations and issued an “Emergency Safeguard Notification” as a false pretext for shutting down Al Dente. The Plaintiffs also claimed that the eventual padlocking of Al Dente forced the restaurant out of business: costing them $4,300 in monthly rent.

In February 2014, Al Dente and Morizio sued the Defendants in an action before Judge Leonard D. Wexler, raising a procedural due process claim, a substantive due process claim, and an equal protection claim. The jury found that Ippolito violated the Al Dente Plaintiffs’ procedural due process rights; that Ippolito and Blanchard violated their substantive due process rights; that Al Dente had proven a claim for municipal liability against Ippolito; that they had proven that Ippolito was the final policy maker of the Town; and that he directly committed or commanded a constitutional violation. In this case, Plaintiffs raised three claims: a Fourteenth Amendment procedural due process claim, a Fourteenth Amendment substantive due process claim, and a claim that the Defendants conspired to violate their civil rights.

As to the procedural due process claim, the parties did not dispute that the Plaintiffs had a property interest in the Premises. As to the September 2013 Citations, the Defendants did not contest that the Town failed to provide the Plaintiffs with a post-deprivation hearing after the Plaintiffs had requested one. The court found that this lack of a post-deprivation proceeding could constitute a denial of due process, and therefore denied the Defendants’ motion for summary judgment as to the September 2013 Citations.

Plaintiffs next claimed that they had raised genuine issues of fact as to substantive due process because they possessed a property interest—the enjoyment and ownership of the subject premises—and they demonstrated that the Defendants’ “unlawful, arbitrary and capricious conduct” was unrelated to any Town Code violations. In response, Defendants presented sworn statements that the premises contained violations of the Town Code, violations that the Town recorded as part of the May 2012 Citations, and violations that remained largely uncorrected at the time of the September 2013 Citations. The court determined that these ongoing Town Code violations made it uncertain that the Plaintiffs were entitled to the benefit of collecting rent. Accordingly, the Defendants’ motion for summary judgment was granted as to the substantive due process claim, due to Plaintiffs’ failure to allege a sufficient property interest.

The court also denied the Plaintiffs’ summary judgment motion as to the conspiracy claim. Plaintiffs submitted evidence that Town employees were not acting in accordance with their official duties. Specifically, they presented testimony that the dangerous conditions at the premises had not been remedied at the time the Town removed the padlocks, and that Town employees did not inspect the upstairs apartment on the premises to see what dangerous conditions, if any, existed there. This testimony by a Town employee directly conflicted with his affidavit, in which he stated that it would be a dereliction of duty not to consider the safety of the upstairs tenant, or to let safety issues at Al Dente go unchecked. As such, the court found that questions of fact remained as to the Defendants’ motives in padlocking Al Dente.

Lastly, the court held that because there were questions as to whether the Defendants had an improper motive, it would be inappropriate to grant qualified immunity at this stage in the proceedings.

Leung v Town of Oyster Bay, 2019 WL 5309995 (EDNY 10/21/2019)

This post was authored by Matthew Loeser, Esq.

In this case, James Yannaccone appealed from the Northumberland County Common Pleas Court’s order declaring the Lewis Township Board of Supervisors’ Ordinance No. 2014-7 valid and in full force and effect. Yannaccone also alleged that newly created planning committee was not a valid planning agency under Municipalities Planning Code (MPC). The Board objected to complaint on grounds including standing, and the trial court sustained the objection. After Yannaccone filed an amended complaint asserting he owned land within township, the trial court denied his motion for summary judgment and found the Board complied with the procedural requirements for enacting ordinance. Following trial, the Court of Common Pleas, entered judgment in favor of Board and denied property owner’s motion for reconsideration.

Since 2005, the Township and Turbotville Borough participated as a joint planning commission for zoning and land use planning, as the Township did not have a separate planning commission. In an October 7, 2013 letter, the Board notified Turbotville that it would withdraw from the Joint Commission effective January 1, 2015. The Board then hired consultant KPI Engineering to draft a new zoning ordinance exclusively for the Township, and formed the Township’s Zoning Ordinance Committee (ZOC), which consisted of Board members, Joint Commission members and Township residents. The purpose of the ZOC was to provide KPI input during the proposed ordinance drafting process. The ZOC met several times in early-to mid-2014 to review KPI’s proposed ordinance, which KPI eventually presented to the Board. The Board sent copies of the proposed ordinance to the Joint Commission and the Northumberland County Planning Commission, both of which provided comments to the Board.

On appeal, Yannaccone first contended that the trial court erred by recognizing ZOC as a valid planning agency. As it applies to this claim, Section 607 of the MPC and Section 209.1(b)(2) of the MPC10 expressly authorized a municipality’s governing body to request its planning agency to prepare and present a zoning ordinance. Additionally, Section 107 of the MPC defines “planning agency” to include “a planning commission, planning department, or a planning committee of the governing body.” Here, the Board established that ZOC was discussed in 2013, created in late 2013 or early 2014, and its progress was reported for most of 2014. Section 201 of the MPC also required that a planning committee be “comprised of” Board members. Contrary to Yannaccone’s argument, Section 201 of the MPC did not require ZOC to consist solely of Board members, but only that ZOC had to include Board members, which it did. Accordingly, Yannaccone’s claim that ZOC was not valid because its membership exceeded nine members and included non-Board members was without merit. Therefore, the court held that the trial court properly determined that the ZOC was a valid planning agency.

Yannaccone next claimed that the trial court erred by holding that the Board’s monthly meetings strictly complied with the requirement in Section 607(b) of the MPC. Under that section, “the planning agency shall hold at least one public meeting pursuant to public notice ….” The record reflected that ZOC meetings were public, but were neither published in a newspaper of general circulation nor posted as Section 703 of the Sunshine Act mandated. The court further found that merely referencing a ZOC meeting during one Board session and notating the Board’s minutes with ZOC updates did not rise to the level of the required public notice. Since none of ZOC’s meetings took place after “public notice,” the Board did not substantially comply with Section 607(b) of the MPC, and the trial court was found to have erred by holding otherwise.

 Yannaccone v. Lewis Township Board of Supervisors, 216 A.3d 551 (2019)

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