Rancho de Calistoga (“the Park”) is a mobile home park located in Calistoga, California, which encompasses 26.5 acres, was originally developed by Hal C. Aguirre and R.C. Roberts. When the Roberts and Aguirre partnership dissolved in the mid–1970’s, one of the parcels was transferred to Aguirre, who formed Rancho de Calistoga (“Rancho”). The City of Calistoga had no form of mobile home rent control until 1984, when the City adopted an ordinance that enabled mobile home park tenants to challenge rent increases. The ordinance authorized a yearly rent increase equal to the lesser of 100% of the percent change in the Consumer Price Index or 6% of the base rent. In 2010, Rancho decided to notice a rent increase from $471.39 to $625 per month, but an administrative hearing officer, W. Scott Snowden, issued a decision in which he rejected Rancho’s request and instead allowed a rent increase to a total of $537.59 per space per month. Rancho filed a Petition for Writ of Administrative Mandamus in the Napa County Superior Court against the city and administrative hearing officer, asserting regulatory takings and separate “as-applied private takings” challenges to city’s mobile home rent control ordinance, as well as due process and equal protection claims against officer. The United States District Court for the Northern District of California, granted city’s motion to dismiss.

As to the as-applied regulatory takings claim, Rancho argued that even if the taking was for a public purpose, the rent subsidy should be paid by the government if the rent is neither excessive nor the result of monopoly power. The court found, however, that the argument was in fact just another formulation of a facial attack on the ordinance. Even if the claim were cognizable through an as-applied attack, the court found it would fail because it was not a regulatory actions that was functionally equivalent to a classic taking in which government directly appropriates private property or ousts the owner. Even though Rancho claimed the diminution in market value from $16,580,000 to $11,850,000 under rent control, or 28.53%, as well as lost income, the court found this economic impact was an inevitable consequence of the rent-control scheme but not an unconstitutional one. Rancho also filed a separate “private takings claim,” arguing that the application of Ordinance 644 to rent increases constituted an unconstitutional private taking because any purported “public use” is pretextual. However, this argument failed because it was simply a reframing of a facial challenge to the ordinance through an attack on the stated purposes of the rent-control scheme.

Rancho’s equal protection claim was analyzed under the rational basis review because mobile home park owners are not a suspect class. Here, the ordinance articulated just distinguishing characteristics, including the potential hardship posed by rent increases and the fact that mobile home park residents “are in a unique position in that they have made a substantial investment in a residence for which space is rented or leased” and the associated relocation costs. Furthermore, there was no evidence that Snowden’s decision was politically motivated or otherwise arbitrary. Accordingly, the court affirmed the district court’s dismissal of Rancho’s due process and equal protection claims.

Rancho De Calistoga v City of Calistoga, 2015 WL 5158703 (9th Cir. CA (CA) 9/3/2015)

Posted by: Patricia Salkin | September 30, 2015

NY Appellate Court Upholds Granting of Area Variances

The court upheld the granting of area variances by the Town zoning board appeals finding that the board properly weighed the statutory factors in Town Law sec, 267-b and that the board’s decision was rational and supported by substantial evidence in the record, and that it was therefore neither illegal, arbitrary, nor an abuse of discretion.

Tower v Weiss, 131 A.D. 3d 621 (NYAD 2 Dept. 8/19/2015).

Drew Barnabei and Nicole Barnabei (“Appellants”) purchased the Stonebridge Mansion and moved into Stonebridge with their two children and began to use it as their primary residence. Appellants later decided to rent out the first and second floors of Stonebridge as a catered events venue. On June 5, 2013, Hugh Donaghue, the Chadds Ford Township Solicitor, also informed Appellants that Appellants’ proposed use of Stonebridge was not a permitted use in an R–1 district. The township subsequently obtained an injunction to prevent Appellants from holding a proposed music and food festival, and a township Zoning Officer issued Appellants six non-traffic citations for holding events on April 20, 2013; April 26, 2013; and May 23, 2013. The ZHB denied Appellants’ application to use their property as a catered events venue, and the Court of Common Pleas of Delaware County affirmed the decision.

Here, because a lessee’s principal use of Stonebridge must be residential in nature, the court agreed with the ZHB that Appellants’ proposed use of Stonebridge is not a permitted use under the Ordinance. Appellants next contended that because 901 Poplar (former owners) held similar events at Stonebridge during the course of its ownership, Appellants have established a nonconforming use. However, Appellants presented no evidence that Stonebridge was used as a catered events venue prior to the enactment of the Ordinance. Thus, the Appellants failed to establish a nonconforming use.

Appellants next brought a claim for variance by estoppel. The court held, however, that the Appellants had waived their argument concerning a variance by estoppel by not raising it before the ZHB. As to the application for a variance, the Ordinance provided that in the event that the Ordinance imposes an unnecessary hardship upon a landowner. This Court held that in order to establish an unnecessary hardship, “an applicant must prove that either: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance.” The fact that the use of Stonebridge as a residence was less financially rewarding than using it as a catered events venue did not justify a variance. Accordingly, the court rejected the Appellants’ argument that they were entitled to a variance. The trial court’s order was therefore affirmed the denial of the application.

Barnabei v Chadds Ford Township Zoning Hearing Board, 2015 WL 3609316 (PA Commwlth 6/10/2015)

Oneida Seven Generations Corporation submitted an application to the Plan Commission requesting a conditional use permit allowing it to place a renewable energy facility in Green Bay. The application was supported by a 149–page report on the facility. The Plan Commission considered the project at an open meeting on February 21, 2011. The CEO of Oneida Seven, Kevin Cornelius, its engineer, and its project manager presented PowerPoint slides accompanied by an audio recording to the Commission which explained how the pyrolysis process works. Although the City initially voted to grant the permit, it subsequently voted to rescind the conditional use permit on the basis that it was obtained through misrepresentation. The court of appeals determined that the City’s decision that the permit was obtained through misrepresentation was not supported by substantial evidence and reversed.

The motion to rescind the conditional use permit was explicitly based on the reasons provided by Alderman Sladek: 1) Cornelius made untruthful statements to city governmental bodies in response to questions related to the public safety and health aspects of the project and the project’s impact on the city’s environment; 2) those statements were clear and left no impression of doubt or uncertainty; 3) Cornelius knew his statements were false; and 4) the subject matter of the questions was of high importance. the intentional misrepresentations to which Alderman Sladek was referring were Cornelius’s statements at the February 21, 2011 Plan Commission meeting “to questions or concerns related to the public safety and health aspects of the project and the project’s impact on the city’s environment” and, more specifically, Cornelius’s responses to commissioners “when they asked about emission, and chemicals, and hazardous materials at this project.” Here, there was no indication in the record that the statements Cornelius actually made (that the scrubbers remove the harmful toxins from the syngas and that the dioxins and mercury would not be in the ash, which could be reused for beneficial purposes) were false.

Next, the City alleged that the statement by CEO that there would be no smokestacks was an intentional misrepresentation. However, there was no indication that Cornelius’s use of the term smokestack during his public presentation to the Plan Commission was a reference to the technical term “stack” as defined by the DNR; on the contrary, it appeared that Cornelius’s statement was reiterating the statement made in the recorded presentation, which used the term smokestacks as a reference to the stacks present at the coal powered power plants. Those stacks are several hundred feet high and twenty to thirty feet wide, whereas the “stacks” at the proposed facility are exhaust pipes that would only be approximately 26 inches wide and 35 feet tall, rising only 3 feet above the roofline of the facility. The court determined that if the City had not wanted such vents, it could have added that as one of the conditions to the conditional use permit. Accordingly, the court concluded that the City’s decision to rescind the conditional use permit was not based on substantial evidence, and therefore affirmed the holding of the court of appeals.

Oneida Seven Generations Corporation v City of Green Bay, 2015 WL 3458190 (WI 5/29/2015)

The opinion can be accessed at: http://wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=142646

Sullivan Farms II, Inc.; the Bloomingburg Jewish Education Center; Learning Tree Properties, LLC; Malka Rosenbaum; Sheindel Stein; Winterton Properties, LLC; and Commercial Corner, LLC (collectively the “Plaintiffs”) alleged that defendants are working together to prevent Hasidic Jews from moving into the vicinity of Bloomingburg, New York, a small village in Sullivan County with a population of about 400. Specifically, they alleged that defendants’ acts of resistance have violated their rights under the First Amendment, the Equal Protection Clause, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Fair Housing Act (“FHA”), and New York state law. The First Amended Complaint alleges that defendants are (a) obstructing the completion of a housing development project known as Chestnut Ridge, which they believe is being marketed to Hasidic home buyers, (b) impeding the opening of the Bloomingburg Jewish Education Center, a private Hasidic religious school that plans to open on Bloomingburg’s Main Street, (c) preventing a property in Bloomingburg from being converted to a mikvah, a bath used by Hasidic Jews for ritual immersion and purification, and (d) engaging in a program of harassment and discriminatory building code enforcement aimed at Jewish residents or prospective residents of Bloomingburg. The defendants (Village of Bloomingburg, and entities and individuals associated with the Town of Mamakating) moved to dismiss.

As to the Plaintiffs’ claims with regard to the religious school, the court found that they must be dismissed on both mootness and ripeness grounds, since the site plan for the school was approved in March 2015. Next, the court examined Plaintiffs’ constitutional claims pursuant to § 1983 and § 1985 based on the Village’s allegedly discriminatory application and enforcement of the New York State Building Code. The court found that the plaintiffs’ vague allegations that the Village has discriminated against “plaintiffs’ properties”, “Jewish-owned properties,” and “ ‘Jewish building in the Village” were insufficient to support Article III standing because they were unconnected to any concrete, particularized alleged injury. Accordingly, all of plaintiffs’ claims against the Village that were predicated on the allegedly discriminatory enforcement of the New York State Building Code are dismissed in their entirety due to lack of standing. As a final threshold issue, the court dismissed Plaintiffs’ New York state law claims under §§ 3, 6, and 11 of the New York Constitution as well as their request for an injunction on state law grounds against the Moratorium as redundant, because these claims would all be addressed under the federal due process claims.

In the First Amendment claim, Plaintiffs alleged that Town Supervisor Herrmann’s and the Town’s actions with regard to the mikvah stem from improper, discriminatory motives on Herrmann’s part, as shown by his role in founding the allegedly anti-Hasidic RCC, his campaign slogan “stop 400 from turning into 4000,” appointing opponents of the Hasidic community to town boards, and alleging public comments regarding his desire to keep Jews from moving into the Town. Plaintiffs further alleged that the Town ZBA, whose chair was appointed by Herrmann, overturned the Town Planning Board’s approval of the site plan for the property without providing a reasoned basis for its conclusion or explaining why a mikvah is not a neighborhood place of worship. Therefore, the court found that plaintiffs Winterton Properties and Rosenbaum had stated valid free exercise and freedom of association claims against the Town, the Town ZBA, and Herrmann. Likewise, under the equal protection clause, the court found plaintiffs provided detailed and legally sufficient allegations that lead to the reasonable inference that in taking these actions, the Village, the Village Board of Trustees, Gerardi, Johnson, and Roemer were motivated by discriminatory animus and intentionally acted to discriminate against Hasidic Jews. At this stage of the litigation, the court also held that under the due process clause and FHA, Sullivan Farms had adequately alleged that it suffered has been deprived of a property interest via the diminution in the value of its investment in Chestnut Ridge that has been caused by the financial injury due to the delays in closing sales on the completed townhomes.

Bloomingburg Jewish Education Center v Village of Bloomingburg, 2015 WL 3604300 (SDNY 6/9/2015)

The opinion and order can be accessed at: http://www.newyorklawjournal.com/id=1202729033706/Bloomingburg-Jewish-Education-Center-et-al-Plaintiffs-v-Village-of-Bloomingburg-New-York-et-al-Defendants-14cv7250-KBF

Plaintiffs Colleen and John Austin commenced this action for declaratory and injunctive relief against defendant Town of Farmington alleging discrimination in granting a variance which permits the installation of an above-ground pool with protective fencing on the basis of their son’s disability which they claim contains the onerous requirement that the pool along with the protective fence are required to be removed upon the sale of their home or when their disabled son is no longer in residence. They claimed this requirement of removal violated the reasonable modifications requirement to be made under these circumstances as provided by the Federal Fair Housing Act (“FHA”), Title VIII of the Civil Rights Act of 1968.

To succeed in showing a violation of § 3604, the plaintiffs needed to establish disparate treatment, that their son’s disability was, in some part, the basis for defendant’s action in requiring them to restore the property, or that defendant’s action produced a differential impact or effect on disabled individuals. Here, Plaintiffs failed to support, beyond their conclusory assertions, that requiring them to bear the cost of the removal of the fence and pool was based on their son’s disability when the initial grant of a variance to build the pool along with a fence was granted knowing that plaintiffs’ son was disabled. Because the complaint alleges neither an intent to discriminate, nor facts sufficient to constitute disparate-impact discrimination under the FHA, the court granted the defendant’s motion to dismiss the claim.

Austin v Town of Farmington, 2015 WL 3604671 (WDNY 6/8/2015)

The decision can be accessed at: http://www.newyorklawjournal.com/id=1202729028264

Appellees, Sunset Properties, L.L.C., and Meadowview Village, Inc., each owned property in the village of Lodi on which they operate licensed manufactured-home parks. These mobile home park owners brought action against village, seeking declaratory and injunctive relief and damages, challenging constitutionality of ordinance governing discontinuance or abandonment of a nonconforming use of property. The Court of Common Pleas entered summary judgment in favor of village, and the owners appealed. The Court of Appeals then reversed and remanded and the Village appealed.

The provision in question, Lodi Zoning Code 1280.05(a), states that when a nonconforming use has been discontinued for six months, that discontinuance is conclusive evidence of the intention to legally abandon the nonconforming use. When a tenant left one of appellees’ mobile-home-park lots and the lot was vacant for longer than six months, Lodi would refuse to reconnect water and electrical service when a new tenant wanted to rent the lot. Lodi asserted that its goals for the ordinance are unquestionably permissible and that the ordinance is unquestionably rationally related to these goals; however, the plain language of the last sentence of the ordinance imputed a tenant’s abandonment of a lot within a mobile-home park on the park’s owner and deprives the owner of the park of the right to continue the use of its entire property in a manner that was lawful prior to the establishment of the zoning ordinance. Finally, the court found that the unconstitutional final sentence in Lodi Zoning Code 1280.05(a) could be severed from the rest of the ordinance because the remaining portion of the ordinance could stand by itself without inserting any words and its intended effect is not altered. The judgement was therefore affirmed.

State ex. rel. Sunset Properties, LLC v Village of Lodi, 30 NE 3d 934 (OH 3/10/2015)

The opinion can be accessed at: https://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2015/2015-Ohio-790.pdf

Evergreen Services of Tennessee, LLC d/b/a Gentry–Griffey Funeral Home applied for, and was granted a building permit to add a crematory by the City of Knoxville Building Inspections and Plans Review Department. Several Fountain City residents (“Petitioners”) appealed the issuance of the permit to the City’s Board of Zoning Appeals, which voted unanimously to deny the appeal. Petitioners then appealed to the Knoxville City Council pursuant to Article VII, Section 6 of the Knoxville Zoning Code. The trial court found that the Knoxville City Council had not exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision.

The petitioners first alleged that the City Council used an inappropriate standard of review. However, the meeting minutes reflected that the City Council considered the administrative record and additional evidence presented by the parties, numerous exhibits, environmental reports, newspaper articles, photographs, and allowed the parties additional time to present their arguments. Moreover, the discussion between the City Council members reflected that they considered the exhibits presented and that some even visited an area crematory to aid in the decision-making process. Accordingly, the court held that the required de novo review standard was met. The court then agreed with the trial court that there was material evidence in the record to support the conclusion that the construction of the requested crematory was customarily incidental to the funeral home industry, subordinate to and subservient to the funeral home at issue, and subordinate in area, extent, and purpose to the funeral home at issue. The judgment of the trial court was therefore affirmed.

Scott v City of Knoxville, 2015 WL 3545948 (TN App. 6/8/2015)

The opinion can be accessed at: http://www.tncourts.gov/sites/default/files/scottopn.pdf

Adaptive Planning and Resilience
Online and self-paced 
Oct. 12 – Nov. 22, 2015
Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.
Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.
The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.
The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.
About Professor Tony Arnold
Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.
Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.
Professor Arnold will be joined in co-teaching the course by a team of his former students who are
professionals knowledgeable in adaptive planning. They include:
  • Brian O’Neill, an aquatic ecologist and environmental planner in Chicago
  • Heather Kenny, a local-government and land-use lawyer in California and adjunct professor at Lincoln Law School of Sacramento
  • Sherry Fuller, a business manager at the Irvine Ranch Conservancy in Orange County, California, and former community redevelopment project manager
  • Andrew Black, who is Associate Dean of Career Planning and Applied Learning at Eckerd College in St. Petersburg, Florida, and a former field representative for two U.S. Senators in New Mexico
  • Andrea Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy Development at the University of Louisville
  • Jennifer-Grace Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space at the University of Denver
  • Alexandra Chase, a recent graduate of the Brandeis School of Law who has worked on watershed and urban resilience issues with the Center for Land Use and Environmental Responsibility and now lives in St. Petersburg, Florida.
October 12 – November 22, 2015,
Online, asynchronous, and self-paced
For more information


Viaero was licensed by the Federal Communications Commission to provide personal wireless services, otherwise known as Commercial Mobile Radio Service (CMRS) in parts of Colorado and Nebraska, including the City of North Platte and the area surrounding the City. In 2014, Viaero filed an application for a conditional use permit for the purpose of constructing a 100–foot telecommunications tower, as well as an adjacent small equipment building for electrical equipment and a buried propane tank, in order to improve its network coverage in the area. The City Council found that Viaero’s proposed use failed to comply with N.P.Code § 156.322(A)(5), in that the proposed use was not “in harmony with the character of the area” and was not “the most appropriate use of the land.” Viaero brought an action under the Telecommunications Act of 1996 (“TCA”), which requires that any decision by a local government denying permission to construct a telecommunications tower must be “supported by substantial evidence contained in a written record.”

The record as a whole indicated that despite the presence of a handful of residences around the site, the area was predominantly commercial and industrial: the site itself was used as overflow parking for the bar and tobacco shop; to the north, west, and south were commercial and industrial uses; and to the east was a house that appeared to be used primarily as a storage yard for decrepit automobiles. Thus, photographs of the area showed that it was predominantly commercial and industrial in character. Accordingly, the photographs and zoning maps in the record served undercut any aesthetic concerns, and thus went against a finding of substantial evidence in support of the City Council’s decision. The court therefore directed the City to issue the conditional use permit without further delay or obstacle, and within 10 days of the issuance of order.

NE Colorado Cellular, Inc. v City of North Platte, 2015 WL 3513963 (D. NE 6/4/2015)

The order can be accessed at: http://law.justia.com/cases/federal/district-courts/nebraska/nedce/4:2014cv03088/66023/40/

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