This post was authored by Matthew Loescher, Esq.

Donald Burns sought to knock down his “traditional” beachfront mansion to build a new one, almost double in size, in the midcentury modern style. To do so, Burns first needed to get the approval of the Town of Palm Beach’s architectural review commission. The commission denied Burns’s building permit, finding that his new mansion was not in harmony with the proposed developments on land in the general area. Burns sued the town, alleging that the criteria the commission used to deny his building permit violated his First Amendment free speech rights and his Fourteenth Amendment rights to due process and equal protection. The district court granted summary judgment for the town, and Burns appealed.

On appeal, the court noted that Burns’s new mansion was not expressive conduct protected by the First Amendment, but declined to decide whether residential architecture could ever be expressive conduct and, if so, what the proper First Amendment test would be. The court found that a reasonable viewer would not infer some sort of message from Burns’s new mansion because a viewer would not be able see it due to the proposed privacy wall and hedges. Furthermore, Burns failed to offer any evidence that his house would be open to everyone or that he has invited the public to view his architectural design. Here, to the contrary, Burns removed it from public view with a limestone wall, louvered gate, heavy landscaping, and substantial vegetation.

Burns next argued that section 18-205(a), the architectural review commission’s criteria for reviewing building permits, was void for vagueness. Specifically, Burns claimed that section 18-205(a) failed to inform ordinary people what it prohibits, and allowed the commission unbridled discretion to deny applications and target modern architecture. The court noted that the Third, Fifth, and Ninth Circuits recognized that some of the exact words and phrases that Palm Beach used here, such as “harmony” and “compatible” and a comparison of architectural styles among nearby structures, were not vague and arbitrary. Moreover, due to the detailed criteria and the procedural protections in section 18-205(a), the court declined to find that it provided “no rule or standard at all.”

Lastly, Burns contended that the district court erred in granting summary judgment on his class-of-one equal protection claim because he offered evidence that the commission reviewed  other fifteen midcentury modern designs and approved all of them except one. However, the only evidence Burns proffered in order to meet this burden – that he was treated differently than similar homeowners – was the report his expert David Chase made for the commission. While Chase’s report identified homeowners who had midcentury modern designs that were approved, his report did not state that the other midcentury modern designs were “not in harmony with the proposed developments on land in the general area” but approved nonetheless. Additionally, Chase’s report did not compare the architectural compatibility, massing, and size of Burns’s property to the mansions the commission approved. Accordingly, Burns class-of-one claim also failed.

 Burns v Town of Palm Beach, 2021 WL 2325300 (11 Cir CA 6/8/2021)

This post was authored by Matthew Loescher, Esq.

After the plaintiff Farmington-Girard, LLC, applied for a special permit to construct a fast-food restaurant on property that it owned in the city of Hartford, it filed four separate appeals challenging various text amendments to the Hartford Zoning Regulations and zoning map changes. These changes, which were made by the defendant, the city’s Planning and Zoning Commission, would effectively preclude the plaintiff from obtaining the special permit. The trial court dismissed the appeals on the ground that the plaintiff had failed to exhaust its administrative remedies when it did not appeal to the city’s Zoning Board of Appeals the decision of the city’s zoning administrator to reject, as void, the plaintiff’s special permit application on the ground that it was incomplete. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court.

On appeal, plaintiff argued that the Appellate Court erred in finding that the city’s zoning regulations conferred authority on city zoning administrator Dodds to act on the plaintiff’s application for a special permit, and that Dodds’ determination that the application was void was appealable to the Board. The court found that nothing in §68(g) of the regulations or the enabling statutes suggested that zoning administrators had any authority to act, “authoritatively, definitively, or for any reason”, on an application for a special permit. As such, the court found that Dodds did not have the authority to determine that the plaintiff’s application for a special permit was void because it was incomplete.

The court found that Dodds’ letter purporting to void the plaintiff’s application for a special permit was not appealable either to the Board or to the Superior Court because it was not a legal decision made by the official charged with the enforcement of the city’s regulations governing applications for special permits. Instead, the court determined this letter was a null and void ultra vires act. Accordingly, the court held that the plaintiff’s consolidated appeals were not moot and that the Appellate Court erred in determining that the trial court properly dismissed the plaintiff’s appeals for lack of subject matter jurisdiction. The judgment of the Appellate Court was therefore reversed and remanded.

Farmington-Girard, LLC v Planning and Zoning Commission of the City of Hartford, 2021 WL 2324251 (CT 6/7/2021)

This post was authored by Olena Botshteyn, Esq.

In September 2012, Stanford Carr Development, LLC’s (“Carr”) applied for a Special Management Area (“SMA”) use permit to build affordable housing within the County of Maui’s SMA. The district where the project was proposed was intended to provide a mixture of commercial/business and residential uses. The project was partially compliant with the local community plan, and proposed a combined park area of 1.75 acres instead of the 6 acres. While the Planning Commission was considering the application, in June 2014, the Protect and Preserve Kahoma Ahupua‘a Association (“PPKAA”) petitioned to intervene in the process. PPKAA argued it was authorized to intervene as a matter of right, as its members owned adjacent properties and they would experience impacts to traffic, beach access, tsunami evacuation congestion etc. as a result of the project. The Commission denied the petition, having determined that PPKAA failed to establish how its interests are different from interests of the general public. The Commission then approved the permit, and PPKAA commenced this action. The circuit court affirmed the Commission, and the Intermediate Court of Appeals (“ICA”) reversed, having concluded PPKAA had standing to intervene as a matter of right and that it was denied procedural due process right to a clean and healthful environment, contained in the Hawai‘i Constitution. Carr appealed to the Hawai‘i Supreme Court.

On appeal, the court considered several issues. First, it concluded that PPKAA had standing to intervene in the SMA permit proceedings. Petitioners have a right to intervene, where they establish a protectable property interest, and since PPKAA argued violation of a right to a clean and healthful environment and its members could suffer actual injury as a result of the project, it had a protectable property interest. In addition, environmental plaintiffs need not assert an injury different in kind from the general public to have standing.

The court further concluded that PPKAA was deprived of procedural due process, which requires that parties be given “a meaningful opportunity to be heard.” While PPKAA members testified at the public hearing, they were not given an opportunity to submit evidence or cross-examine witnesses, and their knowledge of the area could have supplemented the environmental assessment of the project.

Further, on the issue of compliance with the community plan, the court determined that the Commission was required to find that the project was consistent with the community plan. The Resolution issued by the Commission, in which it approved the permit application, stated that the project “shall comply with all statutes, ordinances … relating to planning, zoning,” except for specified exemptions, and the community plan was not within the list of exemptions. The court thus affirmed the ICA’s judgment.

Protect and Preserve Kahoma AHUPUA’A Assoc. v Maui Planning Commission, 2021 WL 2451978 (HI 6/16/2021)

This post was authored by Olena Botstheyn, Esq.

In 2001, Benalcazars purchased a 43-acre property in the Town of Genoa, zoned for rural use. In 2017, they applied to rezone their property to a Planned Residential District with an idea to construct several houses on the plot. The Town first approved the application in 2018, but several Town residents opposed the rezoning and passed a referendum against it. Over 75% of Town residents supported the referendum, as a result of which the application to rezone the property was reversed. Benalcazars then commenced a federal action, asserting Due Process and Equal Protection rights violation. They claimed that in the past the Town approved over a hundred rezoning applications, including the ones for higher density developments, than Benalcazars’. The Town and Benalcazars then agreed on a settlement, pursuant to which the Town agreed to change the zoning, and Benalcazars agreed to reduce the proposed development from 64 homes to 56 homes and to provide more open space. Ohio law allows a township to settle through a consent decree. Several of the Town residents petitioned to intervene in the case, as they remained unhappy with the proposed settlement. Claiming that “all property owners seeking zoning amendments face the possibility of a referendum vote,” they moved to dismiss for failure to state a claim. The district court dismissed the due process and declaratory judgment claims, but stated that Benalcazars had a plausible equal protection claim and approved the settlement. Intervenors appealed.

On appeal, the key issue before the court was whether the federal questions raised by the complaint are not frivolous and thus create a legitimate federal court jurisdiction, which would then allow the court to approve the consent decree. The court concluded that Benalcazars’ complaint passed this test, as it alleged that the Town approved “nearly one hundred rezonings from Rural Residential to Planned Residential District” as well as included a map depicting a large part of the Town to be zoned as a Planned Residential District and identified three similar properties with greater development densities that received an approval from the Town. The court went on to explain that the fact that all property owners seeking zoning amendments face the possibility of a referendum is irrelevant here, as all statutes in Ohio are subject to referendum and whether through a referendum or a vote by trustees, the Town made a decision to reverse a rezoning application, potentially subjecting the Town to federal claims. Since Benalcazars’ complaint was not frivolous and the Town was authorized to settle by a consent decree, the court affirmed the district court’s decision.

Benalcazar v Genoa Township, OH, 2021 WL 2374260 (6th Cir. CA 6/10/2021)

This post was authored by Matthew Loescher, Esq.

In 2014, Epcon’s predecessors in interest submitted a revised Special Use Permit (“SUP”), for the Courtyards at Homestead, a planned development consisting of 63 dwelling units and a clubhouse/pool on 18.2 acres. In the 2014 SUP, pursuant to the Inclusionary Zoning Ordinance (“IZO”), the Town required 15% of the proposed dwelling units to be provided as affordable, which was equivalent to 9.45 of the 63 units. Instead of this, Epcon’s affiliates opted for payments-in-lieu at a rate of $85,000.00 per unit, bringing the total amount to $803,250.00. After Epcon fulfilled its obligations under the IZO and sold all 63 units in the Courtyards at Homestead, it filed its Complaint in Superior Court, requesting a return of the $803,250.00 under North Carolina and common law.

The court first noted that Epcon knew or should have known of the IZO’s mandates, including the payment-in-lieu alternative, by the time the SUP was issued in October 2014, when it—or its affiliates—agreed to abide by the Ordinance’s terms. Despite the fact that Epcon had not paid the fees and could have opted to discontinue the project, the court found that it had a complete cause of action at that time because it knew it had been injured by the payment-in-lieu mandate in the amount of $803,250.00. Additionally, there was no question that the IZO would apply to the Courtyards at Homestead development even before the SUP was issued.

The record reflected that Epcon made its incremental payments towards the agreed-upon total according to the timeline in the SUP in order to receive certificates of occupancy for its completed homes. The court noted that these were not separate and distinct fees required by an ordinance, but were partial payments towards a predetermined total that operated as an alternative option under the terms of the IZO. Thus, these payments were inapplicable to the continuing wrong doctrine laid out in the SUP. As the continuing wrong doctrine did not apply the statute of limitations on Epcon’s §1983 claims expired. After dismissing Epcon’s federal claims under 42 U.S.C. § 1983, the court declined to exercise jurisdiction over the state law claims.

EPCON Homestead, LLC v Town of Chapel Hill, 2021 WL 2138630 (MD NC 5/26/2021)

This post was authored by Olena Botshteyn, Esq.

Sand Land owns and operates a sand and gravel mine in the Town of Southampton. In 2014, Sand Land applied to NYSDEC for a modification permit, seeking to expand its mining operations both vertically and horizontally. DEC denied the permit, and Sand Land challenged the denial in court. In 2018, the court ruled that the Mined Land Reclamation Law (“Law”) prohibited DEC from processing mining permits for mines located in the area with population over one million people that consume water from a sole source aquifer, and that the Town of Southampton had a local law in place, prohibiting mining activities. In February 2019, DEC and Sand Land entered into a settlement agreement and DEC agreed to renew Sand Land’s permit including the 40-foot vertical expansion of the mine.

In April 2019, the Town of Southampton commenced an action to annul the settlement agreement and the renewed permit, citing the Law and stating that DEC could not issue the said permit. In September 2020, Supreme Court dismissed the petition finding that the Law only applies to initial applications, not a modification application, as in the case at hand, which proposes only mining deeper within the existing footprint. The Town appealed.

On appeal, the court concluded that DEC acted in violation of the said Law, when it issued the permit, and reversed. The court first determined that the Law does not supersede Town’s zoning laws, therefore, the Town’s local law, prohibiting mining activities, would prohibit a new mine in the area, but the Sand Land’s mine is considered a legal prior nonconforming use, and therefore, would be allowed to continue operating. The court then referred to the provision of the Law, stating “No agency of this state shall consider an application for a permit to mine … within counties with a population of one million or more which draw their primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Respondents argued that this provision applies only to new permits or permits seeking substantial modifications, and the 40-foot vertical expansion is not substantial. The court disagreed, stating that based on the plain language of the statute DEC was not authorized to issue the said permit, as the applicant’s mine falls within the area described in the Law. The court thus reversed the judgment of Supreme Court.

Judge Pritzker dissented, concluding in his opinion that the stated above provision of the Law is applicable only to newly applied permits. He also stated that the part of the provision “if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” being applied here, means that although the Town generally prohibits mining uses in the area, Sand Land’s mine is not prohibited as a legal prior nonconforming use “within the area proposed to be mined”. Since prior nonconforming uses may be expanded through exploitation of reserves, which is exactly what was proposed here, Judge Pritzker stated that in his opinion, judgment of Supreme Court should be affirmed.

Town of Southampton v NYSDEC, 2021 WL 2148413 (NYAD 3 Dept. 5/27/2021)

Posted by: Patricia Salkin | May 29, 2021

NY Announces Legacy City Access Program for Housing

Below are excerpts from the press release:

On May 27, 2021 NY Governor Andrew M. Cuomo announced the new $25 million Legacy Cities initiative, a targeted effort to eradicate vacant properties in concentrated neighborhoods across Upstate New York and transform blighted structures into newly renovated, move-in ready homes. The renovated homes will help expand affordable homeownership opportunities for low- and moderate-income residents, specifically first-time buyers and households of color.  

Under the new initiative, New York State Homes and Community Renewal will allocate up to $25 million in state subsidies through an application process open to land banks that are active in upstate cities and are working in partnership with small, local developers. The program will also leverage millions of dollars in private construction financing. Initially, the program will target projects that are located in an upstate community served by a New York State Land Bank in several regions, including the Capital Region, Central New York, Finger Lakes, Mid-Hudson, Mohawk Valley, North Country, Southern Tier, and Western New York. 

The program is a partnership between HCR and the Community Preservation Corporation, a non-for-profit community development financial institution that focuses on the preservation and creation of affordable and multifamily workforce housing across New York. CPC will provide funding for the program through its ACCESS initiative which was launched in 2020 to provide capital and pre-development support to developers and real estate entrepreneurs of color, and which targets high-quality housing projects in underserved communities.

Selected land banks will transfer assemblages of up to 10 single-family properties to local developers, with preference going to developers that are minority- and women-owned businesses. CPC will provide construction financing and each project will be eligible to receive up to $75,000 per unit in HCR subsidy, with the potential for $95,000 per unit if specific energy efficiency improvements are included in the project scope. Once completed, each property will be resold to first-time homebuyers, with priority given to households of color and to families who earn less than 80 percent of area median income. 

Applicants will also be required to work with community-based housing counseling agencies to connect residents to HCR’s “Give Us Credit” program–a statewide initiative that uses alternative credit analysis to increase homeownership for applicants who have been underserved in the homeownership market, particularly applicants of color. HCR will offer these potential homebuyers down payment assistance to cover acquisition and closing costs. 

Program applications will be accepted on a rolling basis and the application window will remain open until the program funds have been committed.

For more information see: Legacy City Access Program | Homes and Community Renewal (

The circuit court did not err in determining that a foundation established to advocate for the preservation of a locality’s historic buildings, districts, and neighborhoods lacked standing to pursue the claims asserted in this case – an appeal to the circuit court from approval by a City Council authorizing renovation of an historic property. Provisions of the local zoning ordinance addressing appeals to the circuit court provide that appeal from a decision of the City Council may be pursued only by an “aggrieved” petitioner and use of that term incorporated its well-established meaning. In the present case, the foundation’s petition did not meet the requirements of the two-part test articulated in governing case law: the allegations failed to establish that the foundation suffered any particularized harm that differed from that suffered by the public in general. The foundation’s interest in the preservation of historic buildings does not give it standing to challenge the City Council’s decision in this case, and the circuit court did not err when it determined that this foundation lacked standing to pursue the claims asserted in this case. Accordingly, the judgment of the circuit court is affirmed.

Historic Alexandria Foundation v. City of Alexandria, 2021 WL 2149459 (VA 5/27/2021).

The circuit court did not err in dismissing challenges to certain amendments to a local zoning ordinance and imposition of a transient occupancy tax. The county board in this case correctly interpreted the original definition of “dwelling” in the applicable ordinance, and its actions in amending the ordinance were not unreasonable, arbitrary, or capricious. Thus, the board was not required to present evidence because the inherent presumption of reasonableness remained intact, and the circuit court did not err in dismissing claims challenging short-term occupancy amendments. Since the original definition did not permit by-right short-term lodging, there is no basis for the argument that the amended definition permits anything more than short-term lodging subject to permitting and other restrictions. Accordingly, the trial court did not err in dismissing the claims related to the short-term lodging amendments. While the plaintiffs’ properties are clearly distinguishable from hotels, motels, boarding houses, and travel campgrounds in many respects, those distinctions are irrelevant in determining whether Code § 58.1-3819(A) allows a locality to levy a transient occupancy tax on those properties and, accordingly, the trial court did not err in dismissing the plaintiffs’ challenge to the occupancy tax amendment. The judgment of the circuit court dismissing the plaintiffs’ claims is affirmed.

Norton v. Board of Supervisors of Fairfax County, 2021 WL 2149384 (VA 5/27/2021)

The plaintiff, the City of Woonsocket, appealed from a partial final judgment of the Superior Court in favor of the defendants, RISE Prep Mayoral Academy (RISE) and Brad Ward and Carl J. Johnson, in their capacities as city officials, that denied and dismissed the city’s request for declaratory judgment, injunctive relief, and judicial aid in enforcement of the city zoning ordinance.  On appeal, the city contended that the trial justice erred because she misconstrued the zoning ordinance, ignored provisions of the city’s 2012 Comprehensive Plan, and applied the wrong standard of review, giving deference to the zoning official’s ruling.

First, the Supreme Court concluded that the trial justice appropriately found that the city’s zoning ordinance was ambiguous because it failed to specifically address the proper classification for RISE’s operation, and two of the classifications provided in Section 4 of the zoning ordinance were amenable to RISE’s operation.  Accordingly, the Court determined that it was the trial justice’s responsibility, and the Court’s function, to adopt the interpretation of the zoning ordinance that would best carry out its evident purpose.

In doing so, the Supreme Court concluded that, as a public charter school, RISE’s operation is considered a municipal use under the city’s zoning ordinance because, pursuant to the Charter Public School Act of Rhode Island, G.L. 1956 chapter 77 of title 16, “a charter school shall be deemed to be a public school[.]”  The Court noted that the city, in its 2012 Comprehensive Plan, characterized all public schools as “Municipal Facilities” and that the city’s zoning official credibly testified that, in issuing the zoning certificate to RISE, he concluded that “a public school is a municipal use,” and “a use that’s being utilized by a municipality would * * * overturn * * * any other use to be considered.” 

The Court also determined that the trial justice did not accord blind deference to the zoning official’s determination that RISE’s operation is a municipal use allowed by right in a C-2 zone in the city, but merely assigned weight to his conclusions based on his credible testimony and conducted a thorough analysis in which she reviewed the relevant statute, opinions of the Court, the city’s zoning ordinance, and its Comprehensive Plan.  Accordingly, the Court found no error with the trial justice’s decision and concluded that RISE is a public school and its operation is a municipal use, which is permitted in a C-2 zone under the applicable zoning ordinance.  Thus, the Supreme Court affirmed the judgment of the Superior Court.

City of Woonsocket v. RISE Prep Mayoral Academy et al, 2021 WL 2131755 (5/26/2021)

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