Plaintiff-Appellant Jeff Faulkner alleged that the City of Middletown, as part of a conspiracy against him, violated his rights on two separate occasions. First, Faulkner claimed that the City’s decision to “downzone” a piece of real property that would later come to be owned by the Faulkner Family Trust amounted to a taking that required notice and compensation under both the United States Constitution and the Ohio Constitution. Next, Faulkner alleged that the City was liable to him for malicious prosecution and abuse of process under Ohio law because City employees wrongfully arrested him and charged him with landlord theft of rent. As a result, Faulkner brought nine claims against the City, seeking relief ranging from damages under 42 U.S.C. § 1983 to mandamus. The district court granted summary judgment in favor of the City on all nine claims.

The gravamen of plaintiff’s due process and equal protection claims was that the City owed the Trust a duty to provide notice and an opportunity to respond before downzoning the lot in question and to refrain from singling out the Trust’s property for disparate and discriminatory treatment. However, the record indicated that the property at issue was validly downzoned on August 20, 2013; Faulkner did not agree to purchase the land at issue on behalf of the Trust until February 27, 2014, and he did not close on the land until March 26, 2014. Because the Trust did not own the land at issue when the City duly amended the land’s zoning classification, Faulkner lacked standing to challenge that decision on the basis of procedural due process or equal protection.

Lastly, the court found the district court properly granted summary judgment to the City on Faulkner’s claims of malicious prosecution and abuse of process.  The court noted that Ohio law generally immunizes municipalities from civil liability flowing from “loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” Here, Faulkner did not make this claim against a municipal employee, but against the City. As such, the court rejected this claim, and affirmed the judgment of the district court.

Faulkner v City of Middletown, OH, 2017 WL 1857271 (6th Cir. CA 5/8/2017)

 

Respondents applied to Lane County for a zoning consistency determination to certify the lawfulness of an accessory use to their home. The requested accessory use was a conversion of a 2,800 square foot portion of a 5,200 square foot horse barn and riding arena on the property into rooms for use by the permanent residents of the property and their guests. Respondents referred to this area as the “sanctuary.” Respondents proposed that they and their housemates would use the accessory structure on a daily basis for personal use, and small groups of family and friends would use the sanctuary on a weekly basis. Respondents proposed to host parties of less than 40 persons, up to eight times each year; and gatherings of 40 to 80 persons three or four times a year; and to conduct larger events for more than 80 persons, such as a wedding or bar mitzvah, no more than once a year. The county planning director approved the application to certify the accessory use, and the county board of commissioners affirmed the hearings officer decisions. Petitioner obtained review by Land Use Board of Appeals (“LUBA”), and LUBA affirmed the county’s interpretation of the meaning of “accessory” uses and development in the F-2 zoning district.

On appeal, petitioner argued that LUBA erred in deferring to the county’s interpretation of “accessory” use and development because the interpretation was “contrary to Goal 4 and inconsistent with the purpose of LC 16.211 and the underlying policies which are the basis for the Lane Code.” The county interpreted LC 16.090, defining “accessory” as “incidental, appropriate and subordinate to the main use” of a structure, and taking into account the intensity of the use of the accessory structure as weighed against the intensity of the use of the residence. The county concluded that an “incidental, appropriate and subordinate” accessory use in the forestland zone would be one that was confined to use by residents of the tract and their guests, and not open to general use by the public, or commercial by nature. The court found the use was not inconsistent with the conservation of forestland to allow particular accessory uses for forestland dwellings, subject to siting standards for those uses. Additionally, the court found that the county’s interpretation of the code definition of “accessory” uses and development was not inconsistent with the text of the relevant laws. Accordingly, the county’s interpretation was plausible and entitled to deference.

Kaplowitz v Lane County, 2017 WL 2375752 (OR App. 6/1/2017 )

This case was the third appeal regarding two billboards in the Town of Collierville on land owned by Abbington Center. The billboards were constructed in December 1979, at a time when building permits and a sign permit fee were the only requirements for construction of a billboard in the Town. In June 1982, the Town passed an ordinance prohibiting the construction of any new billboards. Abbington purchased the billboards in 1993, and the Town assured Abbington that the billboards were “grandfathered in.” Shortly after this, Abbington discovered that the billboards were leased for use by a third party for fourteen years. In 2007, Abbington submitted proposed designs to the Town’s Design Review Commission for new billboards to replace the billboards in question. Abbington subsequently applied for the necessary permits, but the Town denied the permits on the basis that the billboards did not constitute a legal nonconforming use.

The BZA affirmed the Town’s stop work orders and the denial of the request for building permits. Abbington filed a petition for writ of certiorari to the chancery court, which invalidated the stop work orders and permitted Abbington to reconstruct the billboards. The Town then appealed to the Court of Appeals, but while the appeal was pending, Abbington reconstructed the billboards. The Court of Appeals then reversed the decision of the chancery court and reinstated the decision of the BZA. The BZA then had a split decision on a motion to affirm the Development Department. In November 2013, the chancery court entered a final judgment in which it dismissed the Town and Development Department’s petition for lack of standing. After the Court of Appeals found standing and remanded the issue, the trial court determined that the Board of Zoning Appeals’ decision not to affirm the removal order was arbitrary and capricious because the removal order was enforcing the Board of Zoning Appeals’ prior rulings that had been affirmed and reinstated by the Court of Appeals.

On the third appeal, Appellant did not dispute that the writ of certiorari was timely filed within the sixty-day time period provided by Tennessee Code Annotated section 27-9-102; however, the petition for writ of certiorari filed in this case did not contain an oath or verification. Here, the petition for writ of certiorari only contained the standard “respectfully submitted” signature of the attorneys representing the Town. Moreover, there was no dispute that a petition for writ of certiorari was the proper procedural vehicle to challenge the decision of the Board of Zoning Appeals. Accordingly, the court held that compliance with the technical requirements of Tennessee Code Annotated section 27-8-106 was mandatory, and the failure to comply with those requirements deprived the trial court of the subject matter jurisdiction to conduct any judicial review.

Town of Collierville v Town of Collierville Board of Zoning, 2017 WL 2365018 (TN App. 5/31/2017)

Calvert Tract submitted a zoning application to the Prince George’s Planning Board of the Maryland–National Capital Park and Planning Commission seeking to use its 36 acre property for a mixed-use town center. Around the same time, Calvert Tract entered into a lease with Whole Foods for a grocery store to “anchor” the new development. Calvert Tract voluntarily provided a redacted version of the lease to Prince George’s County Executive Rushern L. Baker “as part of the ongoing discussions of the development of the property.” The Planning Board approved Calvert Tract’s zoning application, which was then sent to the District Council, which also approved the application. In April 2012, Petitioner filed a Maryland Public Information Act (“MPIA”) request with Baker seeking access to the lease between Whole Foods and Calvert Tract. The Prince George’s County Office of Law denied Petitioner’s request, stating that the lease was not subject to MPIA disclosure. Petitioner then filed a complaint against Baker in the Circuit Court for Prince George’s County seeking access to the lease. The court granted Calvert Tract’s motion to intervene as a defendant, and both Calvert Tract and Baker filed motions for summary judgment arguing that the lease was exempt from disclosure as confidential commercial information. The trial court held the lease constituted confidential commercial under the federal Freedom of Information Act (“the FOIA”) and granted summary judgment. The Court of Special Appeals affirmed.

On appeal Petitioner argued that the MPIA’s confidential commercial information exemption was different from the FOIA’s, in that the FOIA exemption applied to entire documents, rather than information within those documents. Here, the trial court failed to either direct the custodian to provide an index or conduct an in camera review to determine whether the lease contained non-confidential information subject to disclosure. Instead, the only information provided to the trial judge regarding the contents of the lease was an affidavit from Jane Cafritz, a Calvert Tract employee, which stated that the lease “was the product of extensive confidential negotiations between Calvert Tract and Whole Foods,” and that, “Calvert Tract does not customarily publicly disclose its commercial leases.” The court found that this was not a sufficient description for the trial court to determine if all of the information within the lease fell within the confidential commercial information exemption. As such, Respondents failed to meet their burden of showing that this lease was protected in its entirety from disclosure because they did not demonstrate that Calvert Tract would not “customarily” disclose any of its contents. The court therefore held that summary judgment should not have been granted in favor of Respondents.

Amster v Baker, 2017 WL 2226684 (MD App. 5/22/2017)

Plaintiff Riverside Church was a Christian Missionary & Alliance church that met for collective worship at a church building in Big Lake, Minnesota. Riverside first opened its video-café venue in 2005, which operated like a movie theater: providing elevated seating to allow the congregants to clearly see the services being projected on movie screens. This case arose from the City of St. Michael enforcing its zoning ordinances to thwart the church’s attempts to purchase a movie theater to serve as a second video-café venue for religious worship. Specifically, the Planning Commission recommended that the City not grant Riverside’s application, and rather than adopt the Recommendation or permit Riverside’s proposed use, the City Council passed Ordinance 1405, which adopted a moratorium of new assembly uses. At the same time, St. Michael adopted Ordinance 1406, which amended the Zoning Ordinance by removing “Theaters (not outdoor drive-ins)” as a permitted use from the B-1 and B-2 zoning districts.

After the August 2014 purchase agreement fell through, St. Michael published a “Statement Regarding Decision on Riverside Church Zoning Application” (the “Web Statement”) on the City’s website. The Web Statement asserted, among other things, that Riverside would not agree to an enforceable worship space limit. Even though the court found the Web Statement was in fact false, but also concludes that, based on the record before it, the statement did not lower the reputation or image of Riverside in any way in the estimation of the community. The defamation claim was therefore dismissed.

As to Riverside’s First Amendment claim the court first noted that the Zoning Ordinance addressed significant government interests related to protecting the community’s economic well-being and safety related to traffic control. The court found that St. Michael’s Ordinance prohibiting collective religious worship in the City’s B-1 zoning district until 2015 was not narrowly tailored. In support of this finding, the court looked to the City’s 2015 Study, which recommended treating assemblies for religious worship exactly the same as theaters – a direct contradiction to the City’s Findings in November 2014. Accordingly, the court held the City violated Riversides’ First Amendment constitutional right to freedom of speech and assembly by enforcing the Zoning Ordinance. As a result of this violation Riverside lost the opportunity to purchase the Theater Property in November 2014 for $2,273,000.

The court next noted that the measure of damages for the tortious interference with a prospective contract is the pecuniary harm caused by the interference. Here, the City’s wrongful conduct increased the costs of the building by $2,758,054.95. Because the increase was due in part to Cinemasota’s efforts to prepare the Theater Property in case Riverside failed to purchase it, these costs of the improvement were subtracted out from the damage calculation. Riverside’s damages were therefore are $1,285,575.

Riverside Church v City of St. Michael, 2017 WL 2226553 (D. MN 5/22/2017)

Respondent City of Albany’s Department of General Services (hereinafter DGS) received a complaint from one of petitioner’s neighbors that trash was “blowing around” his yard and into the street. DGS issued a notice of violation informing petitioner that the condition of his yard violated Chapter 313 of the Code of the City of Albany dealing with solid waste and that, if he failed to remedy the condition, DGS would bill him for the cost of cleanup, together with a 15% administrative surcharge, and impose a fine of up to $500. After petitioner failed to take remedial action, DGS cleaned the property and charged him $838.73 ($638.73 for cleanup costs and a $200 fine). On a second occasion, sanitation workers from DGS removed an “oversized amount of trash,” including discarded furniture, from the curb in front of petitioner’s property while they were collecting trash from residents. DGS then notified petitioner that the oversized trash constituted “illegal debris” and that it was charging him $444.24 ($119.24 for cleanup costs and a $325 fine) for having to remove the trash. DGS denied petitioner’s request to rescind the two bills, prompting petitioner to request a hearing. The Supreme Court in Albany County dismissed petitioner’s application.

As to the first violation, the BZA upheld the $638.73 portion of the charge that reflected the cleanup costs, but reversed the $200 fine, finding that DGS lacked the authority to levy a fine with respect to this charge. Petitioner next argued that the violation should have been prosecuted in criminal court because it classified as a criminal violation pursuant to Penal Law § 55.10. Penal Law § 55.10(3)(a) provides that “any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if … a sentence to a term of imprisonment which is not in excess of [15] days is provided therein, or the only sentence provided therein is a fine.” The court found that because this section set forth the penalties for failing to comply with a notice of violation, the general penalty provision set forth in Code of the City of Albany § 258–1, which provides for a fine and/ or imprisonment only when “no penalty for a violation of an ordinance is imposed in any section or chapter of such ordinance”, was not applicable. As such, the court held that a violation of Code of the City of Albany § 313–51.1(E) was not a criminal violation within the meaning of Penal Law § 55.10(3).

Petitioner next argued that his constitutional rights were violated during the administrative process, and was therefore not required to exhaust his administrative remedies. Specifically, he claimed that he was not provided with adequate notice of the first violation, that the Enforcement Committee was biased, that DGS failed to introduce evidence at the hearing, thereby denying him his right to confront his accusers, and that DGS shifted the burden of proof. The court found that these claims would be better addressed with the administrative agency so that the necessary factual record could be established. Accordingly, the court affirmed the dismissal of petitioner’s application.

Haddad v City of Albany, 2017 WL 1401237 (NYAD 3 Dept 4/20/2017)

Posted by: Patricia Salkin | May 27, 2017

Webcast— Controlling the Local Impacts of Hydrofracking

June 7, 2017

1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Controlling the Local Impacts of Hydrofracking on Wednesday, June 7, 2017 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Hydrofracking will occur in many states, but federal and state agencies will not regulate many of the adverse local impacts of unconventional gas exploration. On the other hand, local governments will, and without expert guidance may be inclined to prohibit the practice. Some states will respond to local bans by stripping local governments of their authority.

It is vital, therefore, to develop best practices for controlling unregulated local impacts and to deliver them effectively to local governments and leaders. This program will outline the regulatory framework, identify local impacts (positive and negative), and conclude with an exploration of strategies—including both regulatory and non-regulatory actions—that local governments can use to address those impacts.

Speakers include Jessica Bacher, Executive Director of the Land Use Law Center at Pace Law School and Joshua Galperin, a clinical lecturer and director in law at Yale Law School and the Environmental Law and Policy Program Director at the Yale School of Forestry and Environmental Studies.

Register here

 

Posted by: Patricia Salkin | May 27, 2017

National Preservation Law Conference 2017

A program of Preservation Leadership Training®
Brought to you by National Trust for Historic Preservation in partnership with Georgetown University Law Center and Georgetown Law

Tuesday, June 13, 2017
8:00 a.m.-5:00 p.m.
Lunch included and cocktail reception to follow program.
Georgetown University Law Center
600 New Jersey Avenue NW
Washington, D.C.

http://forum.savingplaces.org/learn/conferences-training/plt/law

Join your colleagues in the Capital City for a highly focused look into preservation law, highlighting the most recent and influential developments. This intense session will provide you with the knowledge and skills to effectively advocate and champion key preservation issues.

The National Preservation Law Conference 2017 allows you to enhance your leadership skills to more effectively produce results within your community. Continuing Legal Education (CLE) credits will be available.

Join leading preservation attorneys, scholars and professionals for the latest developments and trends in historic preservation law. Hear from national legal experts on topics that include preservation at the federal level, preserving America’s cities, leveraging historic preservation in real estate development, National Monuments and traditional cultural properties, international cultural heritage, and climate change.

Registration
$495 regular rate until June 9
$250 for Preservation Leadership Forum members, Georgetown University Law Center alumni, non profit and government employees until June 9

When online registration closes June 9, attendees will be able to register onsite. Rates increase. $545 for regular rate and $300 for Forum members, Georgetown Law alumni, non profit and government employees.

Register today!

Who Should Attend?

  • Are you a preservationist who deals with legal issues within your community on a regular basis? Do you want to hone in on your legal skills and become a better champion for preservation?
  • Are you an executive director or leader within an organization that regularly deals with legal issues in the preservation movement? Do you not have legal support or a policy expert on your staff and want the skills to be able to serve as the voice for your organization?
  • Are you a landscape or real estate attorney who has become an accidental preservationist and need to know the ins and outs of preservation law?

Travel
Georgetown University Law Center is within walking distance from Washington, D.C.’s Union Station. Union Station is a Red Line Metro stop for D.C.’s Metro system, as well location for Amtrak and MARC (commuter rail servicing Maryland, Washington, DC and West Virginia). Many regional bus services also stop at Union Station.

Hotel Reservations
See below for local hotel. Georgetown Law has agreements with the following three hotels, allowing you to receive a special discounted rate:

  • Hyatt Regency Washington DC on Capitol Hill
    400 New Jersey Avenue NW, Washington, DC 20001
    (202) 737-1234 or (800) 233-1234
    When calling the Hyatt for reservations, please request the Georgetown University volume rate, or Corporate Code 58549.
  • The Liaison Capitol Hill, An Affinia Hotel
    415 New Jersey Avenue NW, Washington, DC 20001
    (202) 638-1616 or (877) 499-5277
    When calling for reservations, please us the corporate code GEORGE.
  • The Hotel George
    15 E Street NW, Washington, DC 20001
    (202) 347-4200 or (800) 576-8331
    When calling for reservations, please request the Georgetown University Law Center rate.

Questions? Email plt@savingplaces.orgSign up to receive updates about future trainings.

 

 

In 2014, McCleary filed an appeal with the Board seeking various zoning variances and permits related to attempt to operate a pet boarding business out of his home. The Board issued its decision denying McCleary’s requests, and McCleary filed a petition for a writ of certiorari, which sought to overturn the Board’s decision on various grounds, including federal constitutional claims. The case was then removed to federal court. In this case, Jaysen McCleary appealed the district court’s dismissal of his writ of certiorari claiming the writ was timely filed, some of his claims survived the dismissal, and the attorney for the City of Des Moines Zoning Board of Adjustment should have been disqualified.

On appeal, McCleary first claimed the district court erred in dismissing his petition for being untimely because the deadline for him to file his appeal did not begin to run until he received actual notice of the Board’s final decision. As applicable to this case, Iowa Code section 414.15 (2014) establishes the right to appeal a decision from a zoning board and provides “such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.” Here, McCleary filed his appeal more than thirty days after the decision of the Board had been filed. Accordingly, the court held his appeal was not timely, and the district court did not have jurisdiction to hear it. Moreover, while section 414.15 referred to writs of certiorari as the method of appealing a zoning board’s decision, the court found that the timeliness requirements were not altered by the choice of a different course for relief, such as a petition for declaratory relief.

Lastly, McCleary claimed the Board’s attorney should have been disqualified because he had previously represented McCleary in another matter. The court found that the nature of the present action was unrelated to the Board’s attorney’s prior representation of McCleary. The prior representation involved the purchase of a business, while this suit involved a zoning dispute between the Board and McCleary. Despite the fact that the Board’s attorney probably had access to some confidential information while assisting McCleary with a potential business purchase, the court found that it was unclear how any of that information would be relevant to McCleary’s request for a zoning variance. As such, the court concluded the district court did not abuse its discretion in refusing to disqualify the Board’s attorney.

McCleary v City of Des Moines Zoning Board of Adjustment, 2017WL 1400870 (IA App. 4/19/2017)

 

Editor’s Note: This summary appeared in the Bond Case Briefs on 6/6/2017 and is reprinted with permission. See, http://bondcasebriefs.com/2017/06/06/cases/hardee-county-v-finr-ii-inc/

Property owner filed complaint seeking compensation from county pursuant to Bert J. Harris Jr., Private Property Rights Protection Act for county’s reduction of mining setback on phosphate company’s adjacent property.

The Circuit Court granted county’s motion to dismiss. Owner appealed. The District Court of Appeal affirmed in part, reversed in part, remanded, and certified direct conflict of decisions. County’s application for review was granted.

The Supreme Court of Florida held that:

  • Act does not apply to property that has suffered diminution in value or other loss as result of proximity to the property that is subject to a government action, and
  • Setback around mining company’s property was not a property right for which adjacent owner could state a claim under the Act.

Bert J. Harris, Jr., Private Property Protection Act does not apply to property that has suffered diminution in value or other loss as result of its proximity to the property that is subject to a government action.

Quarter-mile setback around phosphate mining company’s property was not a property right for which adjacent landowner operating neurological rehabilitation center could state a claim under the Bert J. Harris, Jr., Private Property Protection Act when county reduced setback to 150 feet; setback was created by police power as a land use designation for the general welfare.

Hardee County, FL v FINR II, Inc. 2017 WL 2291004 (FL 5/25/2017)

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