This post was authored by Matthew Loeser, Esq.

Petitioners owned a 2.6–acre parcel located in a residential zone in the Town of Arietta, Hamilton County, which contained a 3,200–square–foot residence, a detached 1,200–square–foot garage and a boathouse. In August 2014, petitioners applied for a building permit to construct a 2,016–square–foot pole barn to be used for storage purposes. Respondent Mel LaScola, the Town’s Zoning Officer, determined the pole barn constituted a principal building as defined by the Town of Arietta Land Use Code due to it exceeding 1,250 square feet. Since petitioners’ property already contained a home as a principal building and a 1,200–square–foot garage, the Zoning Officer denied the application. The ZBA likewise determined that petitioners’ proposed building was a principal building and upheld the Zoning Officer’s denial of the permit. This case involves an appeal taken from an order of the Supreme Court, dismissing petitioners’ article 78 proceeding and action for declaratory judgment of plaintiff to review denial of building permit.

 

Upon review of the record, the court found that although the Zoning Officer’s conclusion that the proposed pole barn was a principal building implicitly held that it was not an accessory structure, he did not follow the proper pathway to reach that conclusion. While the Town Code’s definition of principal building contained a list, being on the list did not necessarily qualify the structure as a principal building. Specifically, the final sentence of the definition excluded all accessory structures. As such, the court found that it would be impossible to determine that a structure was a principal building without first determining whether it was an accessory structure. Accordingly, the court remitted the ZBA’s December 2015 determination to the Zoning Officer to render a determination regarding whether the proposed pole barn was an accessory structure under the former Town Code and, dependant on the answer to that question, whether a permit should be granted.

 

Lastly, the court reviewed the ZBA’s May 2016 determination affirming the Zoning Officer’s decision to deny petitioners’ application that identified the pole barn as a new building, rather than an accessory structure. Here, the Town Code had an express purpose to allow continuation of preexisting nonconforming uses such as petitioners’ residential use of their undersized lot, but also had an express purpose to bar the expansion or extension of nonconforming buildings and structures thereon. Accordingly, the court held the Supreme Court did not err in concluding that the ZBA had a rational basis to deny petitioners’ latest application, which would expand development of their nonconforming use.

 

Casey v. Town of Arietta Zoning Board of Appeals, 169 A.D.3d 1231 (3 Dept. 2019)

This post was authored by Matthew Loeser, Esq.

Plaintiffs Kathleen Herman and Jeff Ghiazza were the owners of a mobile home situated in the Riveredge Mobile Home Park located on Riverview Avenue in the Town of Cortlandt, New York. Plaintiffs were renting the home to a tenant for $850.00 per month, resulting in annual rental income of $10,200.00. In 2016, plaintiffs learned that the Town’s employee Robert Dykeman, “under instruction and order” from the Town, broke into and demolished plaintiffs’ mobile home. The Town offered $3,000.00 in compensation, which plaintiffs refused. The Plaintiffs filed an information request pursuant to New York’s Freedom of Information Law (“FOIL”). Defendants provided only the previous offers from the Town to acquire plaintiffs’ property, but not the documents plaintiffs requested. Plaintiffs then made a second FOIL request, which they allege was ignored. Following this, plaintiffs brought an action in court, and defendants filed a motion to dismiss. Despite being granted an extended deadline to file opposition papers, plaintiffs failed to do so.

In their motion to dismiss, defendants contended that plaintiffs had failed to exhaust available state remedies, and that plaintiffs’ takings claim and due process claims should be dismissed as unripe. Under Williamson, the court found plaintiffs satisfied the first requirement for a federal takings claim to be ripe, finality, because they adequately pleaded that the Town perpetrated a physical taking of their mobile home. However, plaintiffs’ property takings claims and procedural due process claims were unripe under the second Williamson prong as plaintiffs did not allege that they availed themselves of state procedures that could have provided them with adequate compensation for their takings claim. Here, the court found that the proper proceeding to compel public officials to comply with their responsibilities would have been an Article 78 proceeding.

Plaintiffs’ second cause of action under §1983 was for violations of both FOIA and FOIL stemming from the Town’s failure to provide records pursuant to plaintiffs’ two requests for information relating to the demolition of their mobile home. The court noted that contrary to plaintiffs’ allegations, plaintiffs’ information requests were filed pursuant to New York’s FOIL, not the federal statute FOIA. This proved fatal to plaintiff’s second cause of action as a violation of New York’s FOIL does not, standing alone, support a §1983 claim. Instead, the court held, an allegedly wrongful denial of a FOIL request is a matter of state law that is to be addressed in an Article 78 proceeding. Accordingly, defendants’ motion to dismiss was granted.

Herman v. Town of Cortlandt, Inc, 2019 WL 2327565 (SDNY 5/30/2019)

This post was authored by Matthew Loeser, Esq.

Silverhawk Enterprises Inc. began construction of a house on the lot located directly south of plaintiff Jeremy Ferre’s property. Silverhawk obtained a construction permit to build a three-story pitched roof house; however, after pouring the foundation and beginning to frame the house, Silverhawk found that it did not dig the foundation deep enough and needed to modify the height of the house to comply with the Salt Lake City Code. Silverhawk submitted a special exception application to the Commission for the additional height, which was granted. Ferre appealed the Commission’s decision to the Salt Lake City Land Use Appeals Hearing Officer, arguing that the Commission’s decision was illegal as the Commission did not make the required finding that the proposed exception was “in keeping with the development pattern of the block face.” The Hearing Officer upheld the Commission’s decision, and the district court granted summary judgment in favor of Salt Lake City, upholding the Commission’s decision.

Pursuant to the Salt Lake City Code, the Commission was permitted to grant a special exception for additional building height when certain conditions were met. Specifically, the Commission must determine that the additional building height “is in keeping with the development pattern on the block face.” The term “block face” was defined as “all of the lots facing one side of a street between two intersecting streets. Corner properties were considered part of two block faces, with one for each of the two intersecting streets. Furthermore, “in no case shall a block face exceed one thousand feet 1,000.” Here, the record reflected that the property was not located on a block face, but was “uniquely situated on a steep grade sloping to the south,” directly south of Ferre’s house. Since the property was not on a block face, the Commission considered whether the additional height would be compatible with the surrounding neighborhood in accordance with the regulatory intent of chapter 21A.24 of the Salt Lake City Code.

Ferre contended that this consideration was in error and the Commission should have denied the special exception application “as a matter of law” as there was no relevant block face. The court found that although the ordinance was silent as to the challenge Ferre raised on appeal, it rejected his argument that chapter 21A.24 of the Salt Lake City Code was intended to categorically exclude special exceptions for buildings not located on a block face. Instead, the court held that when a building was not located on a block face, such a determination would be impossible and the Commission could consider “the existing development in the surrounding neighborhood” to determine whether the additional height would be in keeping with the regulatory purpose of chapter 21A.24. Accordingly, the court affirmed the district court’s grant of summary judgment in favor of Salt Lake City.

Ferre v. Salt Lake City, 2019 WL 2307136 (UT App. 5/31/2019)

This post was authored by Matthew Loeser, Esq.

Appellees EQT and ET Blue Grass Clearing LLC, an affiliate of EQT, sought to construct, operate, and maintain a natural gas production complex on a 126-acre tract of property within the Borough of Jefferson Hills, Allegheny County. The proposed site for this facility, known as the Bickerton Well Site, was a 29.7-acre site projected to include up to 16 “unconventional” gas wells, that would utilize the hydraulic fracturing production process (“fracking”) to extract natural gas from a subjacent reservoir. According to EQT’s conditional use application filed with the Borough, the wells would penetrate the subsurface vertically to a distance of 6,000 to 7,000 feet, and then extend horizontally for another 10,000 feet.

As required by the Municipalities Planning Code (“MPC”) the Borough Council conducted a public hearing on the application. At the hearing, the present and former Union Township objectors gave evidence of their firsthand personal experiences with EQT’s drilling and operational practices while living near its Trax Farm site, and conveyed their perceptions of how EQT’s activities at that site had negatively impacted their health, quality of life, and their community’s environment. When the Council unanimously voted to deny EQT’s application, it indicated that it gave these objectors’ testimony “significant weight.” The Court of Common Pleas of Allegheny County reversed without taking additional evidence.

On appeal, the court found that the testimony of the Union Township objectors as to the “foul stenches, intense vibrations, loud and penetrating sounds, and increased levels of traffic and air and light pollution they continuously endured, in and around their homes”, was both relevant and probative in establishing the potential adverse impacts which Jefferson Borough residents living near the Bickerton site reasonably could potentially expect. Furthermore, the numerous health effects, and the significantly diminished quality of day-to-day life experienced by the Union Township objectors, which they claimed to be caused by their exposure to these adverse impacts, was relevant and probative of how the health and overall welfare of Jefferson Borough residents reasonably could be diminished by the operation of the Bickerton site, if approved. Accordingly, the court vacated the order of the Commonwealth Court and remanded the case.

EQT Production Company v Borough of Jefferson Hills,  2019 WL 2313377 (PA 5/31/2019)

Judge Dissents from Holding that Testimony from Residents of Another Municipality Could Be Considered in Addressing a Natural Gas Extraction Company’s Conditional Use Application

The Borough Council conducted a public hearing, as required by the Municipalities Planning Code (“MPC”), regarding the application of EQT and ET Blue Grass Clearing LLC (collectively, “EQT”) to construct, operate, and maintain a natural gas production complex. The proposed site for this facility, known as the Bickerton Well Site, was in Allegheny County. The present and former Union Township objectors gave evidence of their firsthand personal experiences with EQT’s drilling and operational practices while living near its Trax Farm site, and conveyed their perceptions of how EQT’s activities at that site had negatively impacted their health and quality of life, and, also, their community’s environment. The Council unanimously voted at a public meeting to deny EQT’s application, and indicated that it gave their testimony “significant weight.” The Court of Common Pleas of Allegheny County reversed, without taking additional evidence.

Justice Mundy dissented from the Majority’s conclusion that when addressing a conditional use application a municipality could consider the testimony of residents of another municipality regarding what they characterized as a similar use by the same applicant. The judge first noted that objectors to a proposed conditional use do not meet their initial burden with respect to public health, safety or welfare criteria of a zoning ordinance by expressing generalized concerns. Instead, these objectors are required to produce “sufficient evidence to establish that there is a high degree of probability that the use will cause substantial threat to the community.” Here, the objectors failed to present any testimony from industrial, environmental or medical experts supporting their concerns or linking the conditions at the Trax Farm site to the Bickerton well site. Conversely, the Borough Council’s written decision recognized that EQT’s application complied with both the general and specific requirements for a natural gas production facility as a conditional use in the B-P Business Park Zoning District and the OG-U Gas Development Overlay District.

Accordingly, Judge Mundy disagreed with the Majority that anecdotal evidence by lay witnesses regarding operations in a different municipality could serve as a basis for denying a conditional use to a landowner who had satisfied the objective criteria of the zoning ordinance.

EQT Production Company v Borough of Jefferson Hills, 2019 WL 2305950 ( PA 5/31/2019)

 

This post was authored by Matthew Loeser, Esq.

Defendants Kevin Iannuzzi, the City of Margate, and two city officials, James Galantino and Roger Rubin, appealed from a trial court order and an order denying reconsideration. The trial court overturned Margate’s approval of Iannuzzi’s plan to demolish his beachfront townhome, which was damaged by Superstorm Sandy, and replace it with an elevated and enlarged free-standing residence. The court also rejected Iannuzzi’s alternate plan to rebuild and elevate the townhome using its original footprint. In determining that Iannuzzi could not build a free-standing house and that any replacement structure could not be elevated, the trial court relied on a Declaration of Covenants and Restrictions that took effect in 1978 when the townhome development was built.

At the outset, the court noted that in August 2017, after the trial court decided the case, the Legislature amended N.J.S.A. 58:16A-103, concerning flood-safe construction. The Act, originally adopted in 2013 in response to Superstorm Sandy, prohibited enforcement of development ordinances that would prevent certain flood-safe construction, including the otherwise lawful raising of a Sandy-damaged structure. The court found that Iannuzzi’s statutory right to elevate his townhome did not depend on whether the townhome or the development as a whole suffered “substantial” damage within the meaning of Margate’s flood safety ordinance. Under the statute, structures are to be raised in their “original dimensions” to the “appropriate” elevation and no more. The court determined that this requirement must be read in pari materia with the requirements that the original dimensions of the structure be maintained and the elevation be no more than necessary. Thus, the owner could raise the entire structure several feet off the ground, while maintaining the original dimensions of the structure and the original amount of living space. Accordingly, N.J.S.A. 58:16A-103, as amended, applied to Iannuzzi’s townhome and permitted him to elevate the structure as required by current flood-safety standards.

Lastly, the court rejected plaintiffs’ argument that Iannuzzi was required to seek an amendment to the original site plan for the townhouse development because a site plan did not qualify as a “development regulation” from which Iannuzzi was exempt under N.J.S.A. 58:16A-103. However, N.J.S.A. 58:16A-103(b)(1) set forth that a person is “exempt from any development regulation, including any requirement to apply for a variance therefrom, that otherwise would be violated as a result of raising an existing structure to a new and appropriate elevation.” The court therefore found that since a development regulation necessarily includes a site plan ordinance, the exemption inevitably included an amendment to a site plan.

Gross v. Iannuzzi, 2019 WL 2361994 (NJ App. 6/5/2019)

This post was authored by Matthew Loeser, Esq.

Petitioners, Koleen Crawford and Ryan Crawford appealed from an order of the Superior Court that dismissed their challenge to a decision of the zoning board of adjustment for the Town of Gilford. This ZBA decision upheld certain conditions on a site plan requested by the intervenors, Martina Howe and Andrew Howe.

On appeal, the abutters claimed that the trial court erred by concluding that the most recent appealable decision regarding whether the Howe’s proposed use was permitted by the town’s zoning ordinance was made by the town’s planning board on February 8, 2016. Specifically, the abutters argued that, since the planning board’s February 8, 2016 approval of the Howe’s site plan was conditional, and the conditions were not satisfied, the approval was not appealable at that time. The court rejected this contention, finding a planning board decision about a zoning ordinance is ripe and appealable to the ZBA when such a decision is made, even in situations when conditions precedent, which did not implicate any issue appealable to the ZBA, were imposed upon final site plan approval.

The abutters next contended that the superior court’s February 14, 2017 order, ruling that the Howe’s use was not permitted, “nullified” the planning board’s February 8, 2016 decision conditionally approving the site plan. This claim was likewise rejected by the court, which noted that while in appropriate cases a trial court could order that a final decision remain in effect during the pendency of an appeal, the general rule was that timely appealing a trial court’s final order stays it from taking effect. As such, contrary to the abutters’ contention, when the Howe’s returned to the planning board for approval of the final mediation agreement’s additional conditions, the superior court’s February 14, 2017 order was not “the controlling law” and the Howe’s did not make “a reapplication for site plan approval.”

Finally, to the extent that the abutters argued the planning board’s October 16, 2017 decision was an appealable use decision, they also acknowledged that at that hearing the planning board did not specifically discuss or vote upon whether the use was permitted. As a result, the court concluded that the trial court’s decision that it lacked subject matter jurisdiction given the untimeliness of the appeal was supported by the record and not legally erroneous. Accordingly, the decision of the trial court was affirmed.

Koleen Crawford & a. v. Town of Gilford, 2019 WL 2371966 (NH 5/31/2019)

 

This post was authored by Matthew Loeser, Esq.

Cape Shore House Owners Association and Constance Jordan owned a parcel of land that abutted a parcel owned by Alan and Mara DeGeorge. In 2017, the DeGeorges applied to the Cape Elizabeth Zoning Board of Appeals for permission to raze an existing nonconforming house located on their property and to build a new one. Cape Shore testifed at the ZBA hearing as an abutting property owner, and claimed that since the DeGeorges sought to replace a nonconforming building located within the SPOD with a new structure that was larger in some respects, the ZBA was required to consider the effect that the proposed construction would have on views. Following the ZBA’s approval of the DeGeorges’ application, Cape Shore filed a three-count complaint against the Town of Cape Elizabeth and the DeGeorges. The court dismissed Cape Shore’s independent claim for a declaratory judgment, finding that section 19-6-11(E)(2) of the Cape Elizabeth Zoning Ordinance was duplicative of its request for judicial review, and affirmed the ZBA’s decision to approve the DeGeorges’ application and entered judgment against Cape Shore.

On appeal, Cape Shore challenged the court’s dismissal of its independent claim for declaratory judgment, where the court acted in its capacity as a trial court and not in an intermediate appellate capacity. The court noted that pursuant to Maine Rule of Civil Procedure 80B(i), if a complaint contains both a Rule 80B appeal and an ostensibly independent challenge to the law applied by the municipal body, the latter may properly be dismissed as duplicative if it “relies on the same factual allegations, and seeks the same relief” as the Rule 80B appeal. Here, in Count 2 of its complaint, Cape Shore sought a declaratory judgment that the thirty-five-foot height restriction provided in the Cape Elizabeth Ordinance, which the ZBA applied during its adjudication of the DeGeorges’ application, was preempted by the Mandatory Shoreland Zoning Act. The record indicated that this claim was presented in the same factual context as the Rule 80B aspect of the complaint, and sought same relief that Cape Shore requested in its Rule 80B appeal. As Cape Shore’s claim for declaratory relief was not independent from its Rule 80B appeal, the court found the trial court’s dismissal of Cape Shore’s claim for declaratory judgment as duplicative was not an abuse of its discretion.

Cape Shore House Owners Association v. Town of Cape Elizabeth, 2019 WL 2345431 (ME 6/4/2019)

This post was authored by Matthew Loeser, Esq.

Appellants, Burlington Coat Factory of Texas, Inc. and Howland Commons, LLC requested a variance with respect to a Burlington Coat Factory location in Howland Township. Appellants requested an additional 50% increase in allowable signage space to increase the size of Burlington’s sign due to its distance from the main roadway. The Howland Township Board of Zoning Appeals denied the application for a variance, and the Trumbull County Court of Common Pleas affirmed this denial based on the factoring analysis detailed in Duncan v. Middlefield, 23 Ohio St.3d 83 (1986). Pursuant to the “practical difficulties” standard for area variances, as outlined in Duncan by the Ohio Supreme Court:

The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of his property include, but are not limited to: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner’s predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.

Here, the trial court’s judgment entry indicated that it considered the Board’s findings under the Duncan analysis and concluded that “in the limited capacity this appeal provides according to the statute, the Court cannot find the decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the proper evidence.” Thus, the court held, based on a review of the transcript and evidence presented during the hearing, that the trial court did not err in concluding that the facts supported Appellee’s decision by a preponderance of the evidence. Accordingly, the judgment of the Trumbull County Court of Common Pleas was affirmed.

Burlington Coat Factory of Texas v Howland Township Board of Zoning Appeals, 2019 WL 2341204 (OH App. 6/3/2019)

This post was authored by Matthew Loeser, Esq.

In 1996, EklecCo, NewCo LLC and EklecCo L.L.C, (collectively, “EklecCo”) formally applied to the Planning Board to amend the Final Site Approval to increase the size of the Palisades Center from 1.854 million square feet of gross leasable area (“GLA”) to 3.05 million square feet of GLA by adding floors rather than expanding the existing footprint of the building. Following this, the Town Board passed Resolution 909-1996, which required that Plaintiffs pay a $1.5 million purchase price for the Town Roads, and the withdrawal of the Palisades Center Expansion Application, among other terms. The Planning Board endorsed an amended final site plan for a 1.854-million-squarefoot mall, which included an amended “Note Z” that made the leasing of additional space above a cap subject to Planning Board approval following an environmental assessment and stated that an application for such approval “shall not be made until compliance with the applicable provisions of the Roads Resolution.” From 2014 through 2016, Plaintiffs repeatedly – and unsuccessfully – attempted to obtain a release of the Restrictive Covenant from the Town. The Town refused to release the Restrictive Covenant without “major concessions” from Plaintiffs, including millions of dollars of payments to the Town’s general fund and submission to a public referendum to approve a release.

Plaintiff EklecCo, brought this action pursuant to 42 U.S.C. § 1983 and New York state law against the Town of Clarkstown, the Clarkstown Town Board, the Clarkstown Planning Board, and the Supervisor of the Town of Clarkstown, George Hoehmann. Plaintiffs alleged that Defendants coerced them into surrendering certain constitutional rights in exchange for the discontinuance and conveyance of public roads that were necessary for the continued development of the Palisades Center shopping mall and discriminated against them in violation of the Fourteenth Amendment Equal Protection Clause.

Plaintiffs first argued that their First Amendment claimed are timely under the continuing violations doctrine and because Defendants violated their First Amendment rights in 2014 and 2016 by repeatedly refusing to grant Plaintiffs release from the restrictions. The court found that the harm Plaintiffs alleged in their First Amendment claims occurred as long as the Town enactments allegedly limited Plaintiffs’ exercise of their First Amendment rights. Due to the ongoing nature of the harm alleged, the court held that the statute of limitations for facial challenges to legislation based on the First Amendment would not accrue until the statute was repealed or otherwise invalidated. Accordingly, Plaintiffs’ First Amendment claims fell within the statute of limitations.

With regard to their Equal Protection claim, plaintiffs alleged that Defendants refused to release them from the restrictions on the property from 2014 through 2016. As the Second Circuit pointed out in Fahs, however, allegations that Plaintiffs were subjected to unfavorable treatment within the statutory period does not amount to an allegation that the action was taken in furtherance of a policy of discrimination. Here, there were no facts in the SAC that indicated that Defendants violated the Equal Protections Clause in the three years prior to the filing of this suit or that Defendants took a non-time-barred act in furtherance of a policy to discriminate against Plaintiffs. Accordingly, the Equal Protection Clause claims were dismissed as untimely.

As to the merits of the First Amendment claim, the SAC alleged that Defendants had restricted Plaintiffs from applying to the Planning Board for approval of an expansion and that this burdened their First Amendment rights. Plaintiffs failed to allege that Defendants prevented them from petitioning the government for redress, merely that they were prevented from applying directly to the Planning Board for a release of the Restrictive Covenant without a favorable permissive referendum or approaching the Town Board. Here, the record reflected that Plaintiffs repeatedly petitioned the Town Board to lift the conditions imposed by Note Z and the Restrictive Covenant and allow for further expansion. Additionally, Defendants entered into an agreement with Plaintiffs through which Plaintiffs agreed to release Defendants from liability for their actions up to and including the enactment of the Roads Resolution. This waiver did not prevent Plaintiffs from bringing the suit currently before the Court for alleged post-release violations of their constitutional rights. Thus, Plaintiffs were not denied access to the courts.

Plaintiffs next contended that the Roads Resolution, Restrictive Covenant, and Note Z imposed unconstitutional conditions in violation of their First Amendment rights. The court found that, Plaintiffs failed to state a facial unconstitutional conditions claim. Plaintiffs were, and remain, able to petition the government for an expansion and to bring constitutional claims before the court. Thus, any claims that the conditions amounted to exactions that violated the First Amendment likewise failed. Under the terms of the Roads Resolution, Furthermore, the court found that the $1.5 million plaintiffs were required to pay, in exchange for transfer of ownership of the Town Roads from the Town to Plaintiffs, was a contract between the parties for the sale of the Town Roads. This was permissible as the court held the government may charge private entities for the purchase of government property. While, plaintiffs also claimed that when they asked the Town for a release from the Restrictive Covenant and Note Z, the Town refused to grant a release unless Plaintiffs made “millions of dollars in payments” to the Town, among other concessions; however, Plaintiffs did not allege that they actually made these payments. Accordingly, defendants’ motion to dismiss was granted.

EklecCo NewCo LLC v. Town of Clarkstown, 2019 WL 2210798 (SDNY 5/21/2019)

This post was authored by Matthew Loeser, Esq.

In June 2015, Appalachian Materials, LLC, filed an application for a permit to operate an asphalt plant in Ashe County. In June 2015, the County’s Planning Director sent Appalachian Materials a letter positively commenting on the application, but also stating that Appalachian Materials needed to provide the State-issued air quality permit before any PIDO permit could be issued. In October 2015, Ashe County’s elected Board of Commissioners adopted a temporary moratorium on the issuance of PIDO permits. During the Moratorium, Appalachian Materials finally supplemented its PIDO permit application with the State air quality permit. In April 2016, the Planning Director issued a letter to Appalachian Materials denying the PIDO permit request. The County’s Planning Board reversed the Planning Director’s decision, directing that the permit be issued. The County appealed the decision of its Planning Board to the superior court. The superior court affirmed the decision of the Planning Board, and the County appealed.

At the outset, the court found Appalachian Materials had completed its application sufficiently prior to the October 2015 Moratorium to trigger the statute which allows an applicant to choose which version of an ordinance to have its application considered under where the ordinance is changed before a submitted application is acted on by a county. The court found that the required State permit was one of many possible prerequisites which may have to be met after a sufficient application is submitted but before a permit can be finally approved. Here, the record reflected that the application was submitted, and the County accepted and deposited the application fee. Furthermore, the application was still before the County when the State permit was approved. Accordingly, the court held that the application was sufficiently “submitted,” pursuant to the Permit Choice statute, in June 2015.

The court next determined that based on the circumstances in which the June 2015 Letter was issued and the language of the prior email and the June 2015 Letter itself, the Planning Director did not intend for his June 2015 Letter to be a determination that the permit would be issued once the State permit was obtained. Nevertheless, the court found the June 2015 Letter had some binding effect as to the Planning Director’s partial denial of the permit. Here, the record indicated that the proposed site was within one thousand (1,000) feet of a portable shed, not attached to the land, was used by Appalachian Materials’ parent company on the same site, and was also within one thousand (1,000) feet of a barn on an adjacent property.

The record reflected that these buildings were shown in the application and that the Planning Director stated in his June 2015 Letter that he had “verified” that these buildings were not a problem. Further, Appalachian Materials was prejudiced by this determination in that it could have sought a variance had the Planning Director not made the determination. Thus, the Planning Director bound the County on the issue of whether certain buildings were each a “commercial building” as defined in the buffer provision in the Old Ordinance. The court further found that the Planning Board had the authority to determine whether the application otherwise complied with the Old Ordinance. Accordingly, the court affirmed the trial court’s order upholding the decision made by the Planning Board.

Ashe County v. Ashe County Planning Board, 2019 WL 2179980 (NC App. 5/21/2019)

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