Posted by: Patricia Salkin | December 4, 2022

MA Land Court Upholds Granting of Variance to Rebuild Deck

This post was authored by Joshua Vayner, Touro University Jacob Law Center

Originally, 99 and 101 Commercial Street were designated as a single, waterfront property between 1989 and 2010. In September 2018, the Zoning Board of Appeals of the Town of Provincetown in Barnstable County Massachusetts, granted a variance to the trustees of the 99 Commercial Street Realty Trust, allowing them to rebuild a deck that was destroyed which consequently limited access for individuals with mobility challenges In 2010, the Jack and Lora Papetsas sold the property to the Carew Defendants, who divided it into two separate properties, currently known as  99 and 101 Commercial Street. Prior to the division, the Papetsas’ had constructed the deck on 99 Commercial Street that provided access to a restaurant, three residential units, and a public harbor-view access area

After the division of the property, the trustee of the Huey Trust became the owner of the residential waterfront property at 101 Commercial Street; David A. Deckelbaum. The Carew Defendants subsequently became the owners of 99 Commercial Street. Deckelbaum’s contractors destroyed the deck, which violated the Commonwealth’s architectural-access laws. As a result, the Carew Defendants applied for a variance to rebuild the aforementioned deck that was removed. The decision to rebuild the deck was granted by the board in September 2018.  The variance allowed the trustees to rebuild the deck 1.3 feet from the property line between 99 and 101 Commercial Street. Which was a variance of the law which instead required six feet by the zoning bylaw in the town. Deckelbaum then appealed the variance, and a trial was held to determine the validity of the variance and Deckelbaum’s standing to challenge it.

The trial was held in May 2022, where the court reviewed the properties and the surrounding residential district. The court ultimately found that Deckelbaum was in fact responsible for the destruction of the original deck. However, the court also found that the board acted within its statutory discretion in granting the variance because it was necessary to restore access to these areas. The court found that Deckelbaum had the standing in order to challenge the variance, however, the court also found that the zoning board acted within its discretion in granting the variance as it was necessary in order to restore access to the three residential units and two areas of public accommodation on 99 Commercial Street. The court ultimately decided for the Carew Defendants to build the deck 1.3 feet from the property line, rather than the required six feet.

Deckelbaum, Trustee of Huey Trust v. Clements, 2022 WL 4296708 (Mass land Ct 2022)

This post was authored by Anna Kim, Touro University Jacob D. Fuchsberg Law Center

The appellant, Donald, and Judith Brinkley, appealed and argued that the City of Milford Zoning Board of Adjustment (Board) illegally granted the special use permit to Okoboji Community School District (OCSD) without substantial evidence. The District Court held that the Board’s decision to approve the special permit with a condition to delay the vegetative screening was legal and supported by substantial evidence. The Court of Appeals affirmed.

In May 2021, the OCSD submitted a special use permit to construct a bus barn and multipurpose building. The Brinkleys, who lived adjacent to the school, opposed the permit claiming that OCSD failed to comply with a special permit granted in 2004. OSCD previously failed to install a vegetative screening on the school’s property as a special condition from the prior special use permit. The superintendent argued that the project was not completed due to planted trees dying, the inadequate row of vegetation, and not completing the planting of the trees on the other side. Nonetheless, the superintendent requested a special permit to install the construction of a bus barn and multipurpose building. The superintendent provided a diagram and agreed to install the vegetative screening after construction in anticipation of any changes to the project. The Board approved the special permit with the condition that the screening was installed after twelve months of substantial completion of the construction.

The Brinkleys filed for a petition of certiorari claiming that the Board granted the special permit without substantial evidence as required by the zoning ordinance. The Brinkleys also argued that granting the permit would improperly affect the neighboring properties, waiting twelve months to install was inadequate for enforcement, and the school failed to enforce the 2004 special permit requirement. Notwithstanding, the Court of Appeals determined that the Board acted legally using substantial evidence because the project may require removal and rebuilding of the screen if there is a mismatch in vegetation. As a result, the Court of Appeals affirmed the district court’s decision that the Board’s decision was legal, reasonable, and not an arbitrary nor capricious decision.

Brinkley v. City of Milford Zoning Bd. of Adjustment, 2022 WL 16634394, (Iowa Ct. App. Nov. 2, 2022)

This post was authored by Matthew Loescher, Esq.

Electors filed a complaint for injunctive relief against community organizations and various county officials challenging validity of community organizations’ referendum petition, which sought to include ballot question as to whether a portion of land should have been rezoned for the purpose of establishing a medical marijuana cultivation facility, as approved by county board of supervisors. Following a bench trial and supplemental motion for summary judgment, the Superior Court, Graham County, denied electors’ request for injunctive relief.

On appeal, Jones first argued the trial court erred in dismissing his challenge to the text of the referendum petition. Specifically, he claimed that Respect the Will of the People (“RWP“)’s petition did not comply with § 19-101(A)’s “straightforward directive to identify” the county measure at issue and the title of the measure being referred, rather than its entire text. The court declined to hold that the presence of any surplus information on a referendum petition automatically negates strict compliance under § 19-101(A). While the petition included the title of the rezoning request twice, as well as the entire proposal, this additional information did not alter the meaning and “does not justify depriving Graham County voters of their opportunity to be heard. Additionally, although the petition lacked the phrase “county measure,” it was clear based on the remainder of the petition that what was at issue due to the address of the property and the involvement of the Graham County Board of Supervisors. Accordingly, the court held that the form of a referendum petition must strictly comply with § 19-101(A) and that RWP complied with the same.

Jones next argued that the trial court erred in granting post-trial judgment for RWP on the signature challenge. The first issue of which concerned ninety-three signatures with an address on the referendum petition that did not match the signer’s address in the voter registration records. The trial court determined that Jones had failed to meet his initial burden because the signers listed an address that was presumably their “current residence address,” regardless of what address they had previously used when registering to vote. The second and third issues concerned seven duplicate signatures that were collected by Leonard and a separate circulator. These signatures were part of the ten signatures the trial court had disqualified under the initial motion for summary judgment. RWP maintained that since the court had invalidated the signatures on the Leonard petitions, the duplicate signatures, collected by a different circulator, should not be disqualified. The trial court agreed with RWP, finding that there was no legal basis for disqualifying the seven signatures after the Leonard petitions had been disqualified. Moreover, as Jones was afforded an opportunity to respond to RWP’s argument through his reply in support of his supplemental motion for summary judgment, the court declined to deem this argument waived. Based on the aforementioned, the court affirmed the trial court’s denial of Jones’s request for injunctive relief, and permitted the referendum petition REF-02-2021 to be placed on the November 2022 ballot.

Jones v Respect the Will of the People, 517 P.3d 1188 (AZ App. 8/25/2022)

This post was authored by Matthew Loescher, Esq.

In this case, plaintiff George Sheetz challenged the $23,420 traffic impact mitigation fee (“TIM fee”) imposed by defendant El Dorado County as a condition of issuing him a building permit for the construction of a single-family residence on his property in Placerville. Sheetz appealed from the judgment entered after the trial court sustained the County’s demurrer without leave to amend and denied his verified petition for writ of mandate. On appeal, Sheetz contended reversal was required because the TIM fee is invalid under both the Mitigation Fee Act and the takings clause of the United States constitution.

 The court first found that the trial court properly determined that the TIM fee was not subject to the heightened scrutiny of the Nollan/Dolan test. The court found that the subject fee was not an “ad hoc exaction” imposed on a property owner on an individual and discretionary basis, but was a development impact fee imposed pursuant to a legislatively authorized fee program that generally applied to all new development projects within the County. The record reflected that this fee was calculated using a formula that considered various factors. As such, the validity of the fee and the program that authorized it was only subject to the deferential “reasonable relationship” test embodied in the Mitigation Fee Act.

 On appeal, Sheetz argued the trial court erred in concluding that he could only state a cognizable claim under subdivision (a) of section 66001, rather than under both subdivision (a) and (b) of the statute. Specifically, Sheetz claimed that the County was required to evaluate the specific traffic impacts attributable to his particular project before imposing the fee.  The court noted that there were two ways that a local agency could satisfy the Mitigation Fee Act’s “reasonable relationship” requirement for the imposition of development fees; subdivision (a) applied to quasi-legislative decisions to impose development impact fees on a class of development projects; and subdivision (b) applied to adjudicatory, case-by-case decisions to impose a development impact fee on a particular development project. The court found that for a general fee applied to all new residential development, a site-specific showing was not required. The court found instead that this showing could be derived from district wide estimates concerning new residential development and impact on school facilities. Because of this, the court held that the trial court properly determined that section 66001, subdivision (b) did not apply to Sheetz’s development project.

Sheetz next argued the trial court erred in determining that his fourth and fifth causes of action failed as a matter of law because the sole remedy for “as applied” challenges to local agency action was administrative mandamus, rather than declaratory relief. The court noted that it was well established that a declaratory relief cause of action is an appropriate method for challenging a statute, regulation, or ordinance as facially unconstitutional or otherwise invalid, but that administrative mandamus is “the proper and sole remedy” to challenge a local agency’s application of the law.

Here, the record reflected that the County considered the relevant factors and demonstrated a rational connection between those factors and the fee imposed. The limited portions of the record relied upon by Sheetz did not demonstrate that the fee was arbitrary, entirely lacking in evidentiary support, or otherwise invalid. The court therefore held that Sheetz failed to show that the record before the County clearly did not support the County’s determinations regarding the reasonableness of the relationship between the fee and his development project. Accordingly, the judgment was affirmed.

 Sheetz v County of El Dorado, 2022 WL 10993726 (CA App. 10/19/2022)

This post was authored by Matthew Loescher, Esq.

The Chandlers and Barnes had sought an injunction to prevent the Town Council of Perdido Beach from constructing a public boat launch and pier at the end of State Street on the western shore of Soldier’s Creek. – adjacent to their properties. In this case, the property owners appealed from a judgment entered by the Baldwin Circuit Court after a bench trial in favor of the Town Council.

Upon review of the record, the court noted that the proposed boat launch would be placed where State Street ends at the edge of Soldier’s Creek, and would not destroy or inhibit the use of State Street as a public road. The boat-launch project would enhance State Street’s use as an area of public recreation, rendering it easier for citizens to launch boats, to fish at the pier, and to picnic in the adjacent designated public park. As such, the project did not divert State Street from its dedicated public purpose. Moreover, the “Town of Perdido Beach Master Plan 2030” contained several references to providing public water access and boat launches to the community in the years to come for the benefit of Perdido Beach’s citizens. The court found the aforementioned supported the circuit court’s conclusion that the boat-launch project was a governmental function, rather than a proprietary one, and the Town Council was immune from the zoning ordinance’s wetland-setback provision.

The Chandlers and Barnes next argued that the great weight of the evidence demonstrated that the zoning amendments would create a public safety hazard and the zoning amendments were arbitrary and capricious because they were enacted solely to accommodate the boat launch rather than for the benefit of Perdido Beach as a whole. As discussed above, however, the record reflected that Perdido Beach always intended to increase public water access and that for years many residents had been asking for more water-access points. Evidence further indicated that State Street had already been used for several years to access Soldier’s Creek. The boat-launch project at issue sought to make that water access easier for residents who – unlike the Chandlers — did not have access to the private boat launch in the Parkway Beach Area. Accordingly, the court held the validity of those zoning amendments was fairly debatable and not arbitrary and capricious. Consequently, the circuit court’s judgment following the bench trial was affirmed.

Barnes v Town Council of Perdido Beach, 2022 WL 12240411 (AL 10/21/2022)

This post was authored by Matthew Loescher, Esq.

Groba owned property within the City of Gelena Park and applied for a permit to build a quadruplex on that property. The City rejected his application, and Groba was advised that a new City ordinance prevented him from building a multi-family unit on his property. Groba’s attorneys filed an “open records request” with the City seeking “production of all ordinances relevant to the location, placement, and general existence of duplexes within the City of Galena Park.” In October 2019, Groba’s attorneys sent a letter to the Texas Attorney General complaining about the City’s failure to comply with the records request and requesting the attorney general’s assistance, nut received no response. Groba ultimately sued the City and several individuals in their official capacities. The judge later granted the City’s motion and dismissed all of Groba’s claims with prejudice. Groba timely appealed. The appeal was assigned to the Houston First Court of Appeals, and the Texas Supreme Court transferred it to this court.

The City raised one summary-judgment ground against Groba’s claim for mandamus relief from the denial of his building permit application: Groba had no evidence that his permit application complied with all relevant laws and building codes, as would have been necessary for approval. The court found Groba’s affidavit, standing alone, was too conclusory to constitute competent summary judgment evidence on the question of whether his permit application complied with all applicable laws and building codes. Accordingly, the court held that the trial judge did not err by granting summary judgment on Groba’s claim challenging the City’s denial of his building-permit application.

The City raised one summary-judgment ground against Groba’s claim for mandamus relief relating to alleged violations of the Texas Public Information Act (“TPIA”). Under the TPIA, Groba was entitled to a writ of mandamus compelling the City to make information available for public inspection if the City refused to request an attorney general’s decision no later than the tenth business day after receiving Groba’s written request. Because the court found that Groba raised a genuine issue of material fact as to whether the City violated the TPIA, it sustained this appellate issue in part and reversed the summary judgment with respect to Groba’s claim for mandamus relief under the TPIA.

 Groba v City of Gelena Park, 2022 WL 16549068 (TX App. 10/31/2022)

This post was authored by Matthew Loescher, Esq.

Plaintiffs owned homes in the City of New Buffalo, Michigan, that they used, or intended to use, as short-term rental properties. In 2019, the City passed an ordinance requiring homeowners in the City to obtain a permit before using their homes as short-term rentals. In 2020, the City adopted a resolution that suspended the issuance of such permits. Plaintiffs brought this action against the City to challenge the validity of that resolution under state and federal law.

At the outset, the court noted that Plaintiffs’ failure or inability to obtain a short-term rental permit did not prevent them from obtaining a vested property interest in the nonconforming use of their properties as short-term rentals. Here, however, they did not obtain a vested property interest because their nonconforming use did not comply with the Zoning Ordinance in effect before Ordinance 253. The first exception in Grand/Sakwa did not apply because Plaintiffs did not show that they acquired a vested property interest that was destroyed by Ordinance 253. Furthermore, to the extent “unjustified delay” was a necessary component of the bad faith exception, Plaintiffs failed to expressly address that component. Thus, Plaintiffs failed to show that they met the standard in Michigan law for enforcing a previous version of an ordinance that was amended while a lawsuit was pending. Plaintiffs’ challenges to Ordinance 237 and the Moratorium under state law in Counts I and II were therefore moot because no relief was available to them. Similarly, plaintiffs’ inability to show a vested interest in the nonconforming use of their properties as short-term rentals resulted in the failure of their takings claims.

The City sought summary judgment on Plaintiffs’ claim that the Moratorium violated the Commerce Clause of the U.S. Constitution. Specifically, they claimed Plaintiffs failed to provide any real evidence of how much the Moratorium burdened interstate commerce, let alone an undue burden in relation to local benefits. The record reflected that the burdens identified by Plaintiffs – loss of rental income for out-of-state homeowners and a reduction in the amount of available lodging for travelers – would have had no meaningful impact on interstate commerce, especially if other options for lodging were available. Accordingly, the court dismissed this claim.

The City next moved for summary judgment on Count IV, which asserted that the Moratorium violated the requirements of the Open Meetings Act (“OMA”). The court found that a declaration that the Moratorium was invalid under state law would serve no purpose as the Moratorium had expired and Michigan precedent required the court to apply the state law in effect at the time of its decision. Accordingly, this claim was effectively moot because no relief was available to Plaintiffs.

Both sides sought summary judgment on Count V, which claimed violations of substantive due process under federal and state law. The record reflected that the Moratorium paused the grant of new permits for short-term rentals while the City considered “appropriate ordinance amendments” to address the City’s concerns. The City initially amended its regulatory ordinance through Ordinance 248, and later addressed its concerns about short-term rentals by limiting the total number of them through Ordinance 253. As such, both the Moratorium and Ordinance 253 were rationally related to the City’s legitimate concerns. As Plaintiffs failed to negate either of the City’s concerns and the relationship between the City’s actions and those concerns, Plaintiffs failed to show the City’s actions were arbitrary or capricious.

 Plaintiffs next contended that the City deprived them of due process by failing to provide them with adequate notice of Ordinance 237 and the Moratorium. Specifically, they claimed that the City did not provide individual notice by mail of Ordinance 237, and that the City did not provide notice to the public before it adopted the Moratorium. Here, the court noted that the Moratorium was not a zoning amendment, as it did not rezone or reclassify any property. Instead, it paused the grant of permits under a regulatory scheme for short-term rentals. Additionally, the Moratorium did not single out or target a particular person, or even a relatively small number of persons, on individual grounds. Accordingly, Plaintiffs failed to show that they were entitled to notice or an opportunity to be heard before the City Council passed the Moratorium. Plaintiffs’ procedural due process claim was therefore found to be meritless.

The court next noted that as Plaintiffs did not assert that the City burdened a fundamental right or targeted a suspect class, they were required to prove that the City’s disparate treatment had no rational basis. While the City suggested that the denial may have been a mistake, a jury could infer otherwise based on the City’s repeated denial of the Nofzigers’ application. Accordingly, there was no genuine dispute that the City denied the Nofzigers’ right to equal protection because it denied their application – intentionally treating them differently from similarly situated applicants without a rational basis for doing so. Thus, the court granted summary judgment on this claim in favor of 218 S Bronson LLC.

Plaintiffs lastly claimed that the Moratorium was preempted by the MZEA, which allowed lawful nonconforming uses to continue under a new zoning ordinance. Plaintiffs contended that Ordinance 253 conflicted with the MZEA because it expressly limited short-term rentals to those properties that had obtained a short-term rental permit. The court found, however, that this claim was not properly before the court because it was not part of Plaintiffs’ complaint, which asserted that “the moratorium was preempted by the MZEA.” Nevertheless, the court held that Plaintiffs’ new claim was meritless because Plaintiffs failed to show that the Zoning Ordinance in effect before Ordinance 253 permitted short-term rentals.

 Moskovic v City of New Buffalo, 2022 WL 16548948 (WD MI 10/31/2022)

This post was authored by Matthew Loescher, Esq.

Property owner Powlette filed a malicious prosecution suit against township’s zoning code enforcement officer, Carlson, alleging that the officer engaged in intentional and malicious conduct by swearing to a second criminal complaint against the owner for operating a bed and breakfast without a conditional-use certificate after the original complaint against the owner was conditionally dismissed. The Court of Common Pleas, Montgomery County, granted the officer’s motion for judgment on the pleadings, and Powlette appealed.

After reviewing the pleadings, and construing all material allegations and all reasonable inferences therefrom in favor of Powlette, the court determined that the facts did not support a conclusion that Carlson acted manifestly outside the scope of his employment as the Deputy Director of Community Development and in his role as the Miami Township Zoning Inspector, or that he acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. Here, Powlette’s property was zoned for agricultural use only, and “a ‘bed and breakfast’ was not a permitted use in an agricultural district.” Additionally, there was evidence from a July 9, 2018 BZA hearing, involving a “different issue,” that Powlette intended to operate a bed and breakfast on his property. After the conditional dismissal of the first complaint, at which time Powlette was ordered by the court to cease advertising for a bed and breakfast and not to operate a bed and breakfast on the property without a conditional use certificate, Powlette failed to comply with the advertising condition. Accordingly, the court held that Carlson acted at all times to enforce the Miami Township Zoning Resolution and was not outside the scope of his employment. As such, Carlson was entitled to statutory immunity.

Powlette v Carlson, 197 N.E. 3e 1 (OH App. 9/16/2022)

This post was authored by Matthew Loescher, Esq.

Plaintiffs William and Susan Hobbs and Donald and Irma Shirkey brought this case asking the court to find that defendant City of Pacific Grove—by granting them one-year licenses to offer residential real properties for short-term vacation rentals —conferred a property right protected by the state and federal constitutions in the renewal of those licenses.

At the outset, the court found that due to the sale of their house, William and Susan Hobbs did not own property subject to Measure M and therefore were no longer affected by the trial court’s ruling on the motion for summary adjudication. The only other plaintiffs, Donald and Irma Shirkey, also lacked standing as to Measure M because their property was within the Coastal Zone and was not impacted by Measure M. Since no plaintiff had an “immediate, pecuniary, and substantial” interest in the trial court’s order with regard to Measure M, no plaintiff had standing to pursue an appeal with regard to Measure M.

Notwithstanding the aforementioned, the court found Ordinance No. 18-005 left the plaintiffs with several economically viable uses of their property: to live in the homes, to allow guests to use the homes without remuneration, to rent the homes for periods of at least 30 days, or to sell their homes. Thus, the intrusion into plaintiffs’ bundle of ownership rights was minimal and far outweighed by the public interest in enhancing and maintaining permanent residential areas. The court further noted that the residential character of a neighborhood is threatened when a significant number of homes are occupied not by permanent residents but by a stream of tenants staying a weekend, a week, or even 29 days. As such, limiting transient commercial use of residential property for remuneration addresses the goal of enhancing and maintaining the residential character of a neighborhood. Here, since the ordinance was rationally related to the City’s goal of enhancing and maintaining its residential character, the court found it was not so clearly arbitrary and unreasonable as to offend substantive due process.

Hobbs v City of Pacific Grove, 2022 WL 16921175 (CA App. 10/14/2022)

This post was authored by Matthew Loescher, Esq.

In 2019, the Tooele County Planning Commission gave its “conceptual approval” to a developer’s plans to develop two parcels of land, an action that drew resistance from certain members of the community. Specifically, over one hundred individual residents of the town of Erda filed a joint administrative appeal challenging the Commission’s action. The Tooele County Council, acting as the administrative appeal authority, rejected those appeals. Following this, the Erda Community Association filed a petition in district court seeking judicial review of the Council’s decision. The court agreed with the County that the Association had failed to exhaust its administrative remedies, but nevertheless denied the County’s motion, determining that at least one exception to the exhaustion requirement applied. The County was granted leave to file an interlocutory appeal from the district court’s order denying its motion to dismiss.

In reaching its decision, the district court noted that “associational standing and the requirement to exhaust administrative remedies are two different and distinct legal concepts.” Specifically, an association can possess associational standing, yet still fail to exhaust its administrative remedies. Here, the court found the Association may have had associational standing to file an administrative appeal of the Commission’s decision and, had it done so, could have had the right pursuant to the associational standing doctrine to file a valid petition seeking judicial review of the County’s approval of Developer’s applications. Alternatively, one or more of the individuals who filed the timely administrative appeals could have filed a petition for judicial review, as these individuals were in a position to do so because they had challenged the Commission’s decision with the Council and had thereby exhausted their administrative remedies.

Since the Association failed to exhaust its administrative remedies, its petition for judicial review was required to be dismissed unless it could demonstrate that one of the established exceptions to the exhaustion requirement applied. The record reflected that the arguments the Association made support of its assertion that the County acted “outside the scope” of its authority for exhaustion purposes, were more or less the same arguments the Association made in its petition in support of its assertion that the County’s actions were “illegal.” The court found that if the Association’s position were correct, and arguments like these were sufficient to assert that a county had acted “outside the scope” of its authority for exhaustion purposes, then no credible land use challenger would ever need to exhaust administrative remedies, as every such challenger must assert that the county somehow acted unlawfully. The court therefore concluded that the mere fact that those same officials sometimes erroneously grant or deny some of those applications, and possibly incorrectly interpret or apply state law or county ordinances in so doing, does not operate to remove their actions from the scope of their authority. Accordingly, the court found the Association failed to exhaust its administrative remedies and failed to carry its burden of demonstrating that any of the established exceptions to the exhaustion requirement applied, and the district court’s denial of the County’s motion was reversed and remanded.

Toole County v Erda Community Association, 2022 WL 16859991 (UT App. 11/10/2022)

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