In 2009, Robert Snyder sued the City of Waltham, Massachusetts, and several of its officials alleging that their vindictive application of a local zoning board’s authority violated state law as well as the United States and Massachusetts Constitutions. In 2014 the court previously ruled, on interlocutory appeal, that two individual defendants were immune to suit under 42 U.S.C. §1983 because Snyder’s Equal Protection claim—the “only preserved federal claim” in the case—failed because Snyder did not show that the defendants had treated him differently than any other similarly-situated individual.

As to the §1983 claims, the complaint contained no allegation that the municipal officials retaliated against Snyder because he supplied information to a state tribunal. Even though the complaint mentioned that a state tribunal requested information from Snyder, and denied Collura benefits, it did not allege that Collura knew what information he supplied to the tribunal. Moreover, the claim also expressly alleged that the retaliatory campaign began before the state agency even requested any information. As to the Eighth Amendment claim, while the complaint mentioned a “notice” of a “$300” fine for each day a zoning violation was not abated, it failed to offer any facts suggesting how such a fine was excessive, or was either paid or still threatened. Additionally, in response to the motion to dismiss and motions for summary judgment, Snyder omitted any mention of these theories. Accordingly, the court found that the point at which Snyder needed to reveal those theories passed well before he announced the theories that he attempted to pursue in this case.

Likewise, Snyder alleged in his earlier complaint that the defendants “conspired to retaliate against Snyder and deny him equal protection of the laws,” and that they were engaged in a “civil conspiracy to commit tortious conduct.” Because of this Snyder waived the opportunity to assert the second type of conspiracy based on the defendants’ allegedly unique ability to exert a “peculiar power of coercion” when acting in unison.

Lastly, Snyder asserted a claim under the Massachusetts Civil Rights Act. Like the federal claims, Snyder raised no such theories in opposing the motion to dismiss, nor did he otherwise raise them in response to the original motion for summary judgment until after discovery closed. For these reasons, the court affirmed the entry of summary judgment on all of Snyder’s claims and the denial of his motion for leave to amend.

Snyder v. Collura, 2016 WL 325091 (1st Cir. CA 1/27/2016)

In an action to permanently enjoin alleged violations of the Zoning Resolution of the City of New York, the defendant Robert Cunningham appealed from an order of the Supreme Court, Kings County, which, granted the motion of nonparty Stuart A. Klein and his law firm to be relieved as the plaintiffs’ counsel. Additionally, Cunningham also appealed from an order of the same court, which denied his motion to dismiss the complaint for lack of standing and lack of personal jurisdiction.

The court noted that to establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that due to the defendant’s activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected’ by the statute or ordinance at issue”. Here, the court found that the record indicated the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests were within the zone of interest to be protected by the zoning ordinances alleged to be violated. Because Cunningham failed to rebut this evidence, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3).

Similarly, the court found that the state Supreme Court properly denied the appellant’s motion pursuant to dismiss the complaint for lack of personal jurisdiction, since the appellant failed to submit a sworn denial of receipt of process to rebut the presumption of proper service. The court therefore affirmed the determination of the trial court to dismiss Cunningham’s motions.

Gershon v Cunningham, 2016 WL 229867 (NYAD 2 Dept. 1/20/2016)

Petitioner owned commercial property located in the business district of the Village of Southampton, which consisted of several retail shops occupied by various tenants. In 1982, the Code of the Village of Southampton was amended to prohibit retail stores from operating in units that were less than 800 square feet. In 2008, the Village’s Building Inspector discovered that one of the petitioner’s tenants was operating a retail shop in a 100 square foot unit and notified the petitioner that the unit violated the zoning code. The petitioner appealed the Building Inspector’s determination to the Village’s Zoning Board of Appeals, arguing that the nonconforming unit was a lawful, preexisting use. The petitioner supported this contention with an appraisal report that was performed in connection with its mortgage application in 1999 and a certificate of occupancy that had been issued prior to the closing, which listed a 100 square foot unit as occupied in 1999. However, neither the appraisal report nor the certificate of occupancy included a floor plan that showed the layout of the seven shops that existed in 1999. The Building Inspector responded with documents from the Building Department, which included the 1999 certificate of occupancy and surveys from 1999 and 1981 showing the floor plan and layout of the seven stores on the property. Because these surveys did not include the 100 square foot unit at issue, the ZBA affirmed the Building Inspector’s determination.

On appeal the court found that the record was still devoid of any evidence demonstrating that the subject 100 square foot unit existed and was being used as retail space in or before 1982 when the zoning code was amended to prohibit such use. While the certificate of occupancy gave the petitioner the right to use the seven stores depicted on the 1999 survey, the unit at issue was not portrayed on that survey, so the court determined the certificate did not authorize its use. Accordingly, the court held that it was not arbitrary and capricious or irrational for the ZBA to conclude that the petitioner’s use of the subject unit was not the continuation of a legal, nonconforming use.

East End Holdings, LLC v Village of Southampton Zoning Board of Appeals, 2016 WL 229660 (NYAD 2 Dept. 1/20/2016)

Plaintiff Cumberland Farms, Inc. owned a commercially-zoned property on Route 6 in Wellfleet, currently occupied by a Cumberland Farms convenience store, a liquor store that leases its retail space from Cumberland, an abandoned single-family residence, and a garage that had been leased for vacant storage space. Cumberland proposed to redevelop the property by demolishing the existing retail structures and the abandoned residence, constructing a new building to house both the Cumberland convenience store and the liquor store tenant, adding a canopied fuel pump island in front of the new building with two gasoline pumps and one diesel pump, re-configuring the entrance and exit drives to make them easier and safer to use, and re-landscaping the site to improve its appearance and install additional tree and shrub buffering from its neighbors. The Zoning Board denied the two related special permit requests: to authorize the filling station use, and to add another principal use (the filling station) on the property. The ZBA based on its ruling that it lacked jurisdiction over those applications because Cumberland had not first obtained a Formula Business Special Permit from the Wellfleet Planning Board pursuant to Bylaw, § 6.30. Additionally the ZBA found that the redevelopment did not provide adequate parking, would increase traffic congestion along Route 6, and would negatively affect property values.

The court first discussed that Cumberland’s Wellfleet store was a Formula Business within the bylaw definition because its exterior signage identified it as “one of twenty five or more other businesses worldwide.” However, because both its merchandise and the way that merchandise was “arrayed” are similar to convenience stores generally, and not unique to Cumberland, it would not otherwise fall within the definition. The Town contended that its Formula Business bylaw was consistent with its authority under the Zoning Act because the bylaw regulated “aesthetics which are a public interest that justifies the exercise of municipal zoning power.” However, the Formula Business bylaw was invalid because its requirements did not apply to a non-Formula Business doing the same things, in the same location, in the same way. Since there was no evidence that Formula Businesses generated greater or different adverse impacts than those businesses that did not come within that definition, it was invalid: both on its face and as applied.

At trial Cumberland retained McMahon Associates, a traffic engineering firm, to submit a traffic impact study “to determine the development’s effect on road traffic-carrying capacity, road physical environment, and traffic and pedestrian safety.” Gary McNaughton, vice president of McMahon Associates, who oversaw Cumberland’s traffic impact studies and testified about them. In its decision, the Zoning Board rejected McMahon’s traffic study in large part because it was not conducted during the summer and relied on seasonally-adjusted October data. However, Mr. Michaud testified on cross examination that relying on seasonally-adjusted data is an accepted industry practice and should not be the sole basis for rejecting a traffic study. Moreover, when McMahon conducted a summertime manual traffic count in July 2012 after the Zoning Board issued its decision, it showed there was no material disparity between the results obtained from the seasonally adjusted October data and the July data. Accordingly, the Zoning Board’s traffic-related reasons for denying Cumberland’s special permits were unsupported by the evidence or any rational view of the evidence, and therefore arbitrary and capricious.

The Zoning Board also found that the six proposed parking spaces shown alongside the fueling pumps could not be considered valid parking spaces because they were “passageways”. However, the court found while the areas between each fuel pump resembled passageways, they functioned much differently because they were not intended or used to provide unimpeded or continuous passage. These areas could therefore be properly designated as parking spaces on Cumberland’s proposed plan. Finally, no evidence was found to support any contentions that the filling station would lower property values or increase negative light or noise effects. Consequently, the court vacated and remanded the Zoning Board’s denial of Cumberland’s application for two special permits.

Cumberland Farms, Inc. v. Jacob, 2015 WL 5824402 (MA Land Ct 10/6/2015)

Petitioner owned a two-bedroom single-family residence located on about four acres in the Town of Hurley, Ulster County. In 2012, he began listing the property on the Internet offering to rent it for terms ranging from one night to a month or an entire season. Respondent Glenn Hofstatter, the code enforcement officer for the Town, issued petitioner an order to remedy for illegally operating a bed-and-breakfast or hotel. Petitioner appealed to respondent Zoning Board of Appeals of the Town of Hurley, which determined that under the Town Code petitioner’s short-term rentals were not allowed unless he obtained a special use permit. Petitioner commenced a CPLR article 78 proceeding and action for declaratory judgment. The Supreme Court dismissed the petition and declared that petitioner’s due process and equal protection rights were not violated. On appeal, Petitioner now contends that the Town Code does not require a special use permit for the type of short-term rentals that he provides.

Although the ZBA did not determine the category of use that petitioner’s activity constituted under the Town Code, it upheld Hofstatter’s determination, which had labeled the use as either a bed and breakfast or hotel. Despite this, petitioner’s use of the property did not fall under the definitions in the Town Code of either of these. Petitioner’s residence did not have “a common exterior entrance or entrances” as set forth in the definition of a hotel. Moreover, since petitioner always rented the entire premises and he did not remain on the premises when rented, it was not an “owner-occupied dwelling” in which only “rooms” were being rented as provided in the definition of a bed-and-breakfast. Since petitioners use was not prohibited by the Town Code, the court granted the petition to annul the determination of respondent Zoning Board of Appeals of the Town of Hurley.

Fructher v Zoning Board of Appeals of Town of Hurley, 2015 WL 7460160 (NYAD 3 Dept. 11/25/2015)

Appellant, a Rhode Island limited liability company that owned a large building of self-storage units on property located in an industrial zone (the I-1 zone), rented out self-storage units to individual tenants. Two of these tenants were growing medical marijuana as licensed caregivers inside of their rented storage units. On November 24, 2014, Jacob Peabody, a zoning enforcement officer, issued two Notices of Violation regarding the marijuana growing operations he found to be taking place in these storage units. The Notices of Violation alleged that tenants within Appellant’s building were growing marijuana, and that agriculture and horticulture were prohibited activities in the I-1 zone. On April 2, 2015, the Zoning Board issued two decisions denying Appellant’s appeal: neither the Appellant nor the owner filed a request for a zoning certificate prior to commencing the activity; and there was not enough information to enable the Board to find that the use constituted pharmaceutical manufacturing for the purposes of zoning, thus the finding that the determination that the use constituted a horticultural activity was correct.

Appellant first argued that it was not given sufficient notice of an alleged violation of the Coventry Zoning Ordinance, which the Zoning Board eventually found to be the basis of a zoning violation. The Board argued that ignorance of the law that “it was incumbent upon the Applicant or owner to obtain a Zoning Certificate from the Zoning Official before commencing this activity” was no excuse for failure to comply, despite the fact that the Zoning Enforcement Officer failed to notify in writing these tenants the nature of the violations, and to order the action necessary to correct them. The court disagreed, finding that the Board acted in violation of Article 3, Section 3104 of the Coventry Zoning Ordinance by addressing this issue when the Appellant received no notice. However, the Board did not solely base its decision on the finding that the Appellant lacked a Zoning Certificate, but also on the Zoning Officer’s determination that the use constituted a horticultural activity. As such, the court held that this error was harmless, as it did not prejudice substantial rights of the Appellant.

The Appellant next argued that the Zoning Board erred in failing to consider growing medical marijuana as manufacturing pharmaceuticals, a permitted activity in an I-1 zone, within the meaning of the Coventry Zoning Ordinance. Here, the Board found that the Appellant’s tenants were not manufacturing pharmaceuticals and were exercising horticultural activity, and horticulture was clearly prohibited in the I-1 zone. Moreover because the tenants testified at the hearing that they held caregiver licenses and were not licensed to manufacture pharmaceuticals, the Board upheld the Notices of Violation. Since the definition of “manufacture of pharmaceuticals” under the Coventry Zoning Ordinance was subject to more than one reasonable interpretation, the court granted deference to the Coventry Zoning Board’s interpretation.

Finally, the Appellant argued that the Zoning Board’s actions were in violation of the Rhode Island Right to Farm Act, and the Rhode Island Constitution’s guarantee of preservation of land and natural resources. However, the Appellant failed to demonstrate how growing plants in a warehouse had any implication on the agricultural use of the land. The court also noted that the right to grow plants inside a storage unit was not a use of Rhode Island’s “natural resources” as protected by the Rhode Island Constitution, nor was it a “traditional agricultural land use” as protected by the Right to Farm Act. Accordingly, the court affirmed the Zoning Board’s decision.

Baird Props., LLC v. Town of Coventry, 2015 WL 5177710 (RI Super. 8/31/2015)

Plaintiff, City of Sparta, a municipal corporation, brought an ordinance violation action against defendant, Tim Page, alleging that Page was conducting an unpermitted use in a residential district, contrary to the provisions of the local zoning ordinance. Defendant Page resides on a one and one-half acre tract of land within the city limits in an R–4 residential district as established by plaintiff’s zoning ordinance. He had been raising chickens for approximately four years on his property and considered his three chickens as pets, and did not use them for any commercial enterprise. The trial court found that raising pet chickens was not prohibited by the city code; because Page’s activities were not commercial in nature, they did not constitute agricultural use. Plaintiff appealed contending that the court’s decision was against the manifest weight of the evidence and contrary to law.

Here, the court found that the primary use of Page’s property was residential since Page and his wife lived in the house on the property as part of their normal everyday life. Moreover, normal incidental uses of residential homes and property include having pets. While other provisions of the zoning code specifically prohibited swine, cattle, horses, mules or game birds within residential neighborhoods, the court noted that a chicken was not a game bird. Because chickens were not specifically prohibited, and no commercial agricultural use pertaining to the chickens was established, Page’s owning of and keeping three pet chickens on his property was held to not constitute agricultural use as contemplated by the zoning code. Accordingly, the chickens were found to be an incidental permitted use of the property, and the holding of the trial court was affirmed.

City of Sparta v. Page, 2015 WL 6440338 (Ill. App. Unrep. 10/22/2015).

On August 4, 2011, the City of Milford’s zoning enforcement officer issued a certificate of zoning compliance to the plaintiff Timothy T. Folsom’s neighbor to build a nonconforming structure on a vacant lot abutting the plaintiff’s property. The plaintiff appealed to the Board from the decision of the zoning enforcement officer. The Board held a public hearing in which the plaintiff argued that a merger between the vacant lot and the neighbor’s property prevented the issuance of the certificate of zoning compliance. The Board, finding that a merger had not occurred, upheld the issuance of the certificate of zoning compliance by the zoning enforcement officer to the plaintiff’s neighbor, and the plaintiff appealed to the Superior Court. While the plaintiff’s administrative appeal was still pending, the plaintiff commenced the present action in the Superior Court seeking reimbursement for costs incurred from litigating the administrative appeal plus interest. Specifically, the complaint alleged that officer was personally liable for negligently failing to enforce regulations and that board was liable for failing to disqualify itself due to a conflict of interest.

The plaintiff first argued that the zoning enforcement officer was not entitled to governmental immunity because the negligent enforcement of the regulations constituted a breach of a ministerial function to which governmental immunity did not apply. The court disagreed, finding that the power to enforce zoning regulations was and exercise of the officer’s judgment, and thus discretionary. Likewise, the Board’s alleged failure to identify a conflict of interest was an action that required the exercise of discretion, and therefore the Board was also entitled to governmental immunity. The plaintiff argued that an exception to governmental immunity applies where the action of a municipal Board, even if discretionary, violates a code of ethics. Here, the plaintiff directed his allegations against the Board as an entity, and not to any of its members individually. As a result, the court found he had not alleged a legally sufficient claim of personal interest in order to state a claim. The court therefore held that the Superior Court correctly granted the defendants’ motion to strike the complaint.

Folsom v Zoning Board of Appeals of the City of Milford, 160 Conn. App. 1 (CT App. 9/22/2015)

The subject property, a 2.9–acre parcel in Rostraver Township’s B–2 Retail Business District, is owned by the Belle Vernon Area School District. The Property was the site of the School District’s Rostraver High School, and also contained a four-bay garage and an underground diesel fuel tank. The School District used the garage for storage, fueling, parking and routine maintenance of its school buses and vehicle fleet, which continued even after the school building was demolished. Because the School District’s use of the Property predated the Zoning Ordinance, it was a legal nonconforming use under Section 195–82 of the Zoning Ordinance. In 2009, the School District discontinued long-term storage of its buses and vehicles on the Property, but it continued to use the Property for refueling and maintenance. In 2013, Itama Development Associates, L.P., purchased the Property from the School District and agreed to allow the District to continue using the Property as a bus garage and refueling station until its new maintenance facility was complete. In 2014, Itama applied for an occupancy permit proposing a “continuation of non-conforming use and/or structure as a vehicle garage.” The Township’s Zoning Officer, Robert Lahr, rejected Itama’s application, finding that the School District had abandoned its nonconforming use in 2009. The Court of Common Pleas of Westmoreland County then affirmed the Rostraver Township Zoning Hearing Board’s order directing Minuteman to cease and desist commercial trucking activities on Itama’s property.

As to Itama’s res judicata argument, in the June 11, 2014 hearing the Board approved, without limitation, Itama’s request to continue the School District’s nonconforming use of the Property as a vehicle garage with regard to its prospective tenant, KMI. In July 2014, the Zoning Officer observed a different tenant, Minuteman, using the Property and concluded that Minuteman was not operating in compliance with the occupancy permit. The court found that the record did not conclusively show that the Zoning Board’s first decision expressly approved the parking and storage of vehicles for all time so that the Board was estopped from considering in the second proceeding whether such uses had been abandoned.

As to the issue of whether Itama abandoned its nonconforming use, the court noted that Itama presented uncontroverted evidence that the School District continued to use the Property through July 2013 for maintaining and fueling its vehicles, activities that necessarily include parking. This was further evidenced by a written agreement between itself and the School District allowing the School District to continue to use the Property as a “bus garage and bus refueling station” after March 15, 2013. Accordingly, the court held that the Township failed to prove either the School District’s actual abandonment of, or intention to abandon, its use of the Property as a vehicle garage: including the fueling, maintaining, parking and dispatch of vehicles. Moreover, Minuteman’s incidental storage of roll-off boxes and other containers was found to be an increase in the intensity of the prior use, but not sufficiently dissimilar to the School District’s vehicle garage as to constitute an impermissible expansion of the prior nonconforming use. The trial court’s holding was therefore reversed.

Itama Development Assoc., LP v Zoning Hearing Board of the Township of Rostraver, 2016 WL 72822 (PA Commwlth 1/7/2016)

Cardinal PA Midstream, LLC filed a conditional use application with the Township to build a gas compressor station on property located in the Township’s “A–1 Agricultural District.” In this case, Kretschmann Farm, LLC and Donald and Rebecca Kretschmann, husband and wife (collectively, Landowners), appealed the order of the Court of Common Pleas of Beaver County that affirmed the decision of the Board of Supervisors of New Sewickley Township to allow the construction of a gas compressor station on land adjacent to their organic farm. Landowners contended the Township erred because its written decision and order did not address Landowners’ evidence that the proposed compressor station would adversely affect the public health and welfare. They also asserted that the trial court erred by denying them the opportunity to present additional evidence in their land use appeal.

Landowners first claimed that the Township abused its discretion because its findings of fact did not contain any reference to Landowners’ evidence. Here, the Township’s written decision did not refer to Landowners’ testimony or documents, including the hundreds of e-mails expressing concern about the environmental and health impact of Cardinal’s compressor station. However, the court found that these expressions of concern did not constitute probative evidence of harm, since Landowners’ counsel stated that the e-mails were not being introduced to prove a direct impact on health but to establish the risk of loss of Landowners’ customers. Additionally, Landowners presented no expert reports or testimony to support their challenge to Cardinal’s conditional use application. The Township did not ignore the comments of Landowners and other objectors, but instead responded with the imposition of 33 conditions, many of which related to specific concerns raised by the objectors. Thus, even though the Township did not contain any reference to the Landowner’s evidence, it properly considered their evidence.

Landowners also sought to expand the record to include transcripts of two public hearings that took place on Ordinance No. 194. Landowners asserted that this legislative history will show that the Township did not consider the health, safety and welfare of the community and did not tailor the ordinance to ensure residents’ rights to clean air and pure water when considering Ordinance No. 194. However, Landowners filed an appeal challenging the constitutionality of Ordinance No. 194 before the Township Zoning Hearing Board but subsequently withdrew that challenge. Because they decided not to pursue their claim, the court found that they could not now resurrect those contentions on appeal. Accordingly, the court held that the trial court did not abuse its discretion by refusing to expand the record.

Kretschmann Farm, LLC v Township of New Sewickley, 2016 WL 72779 (PA Commwlth 1/7/2016)

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