Plaintiff Anthony Santos appealed from the judgment of the trial court in favor of the defendants, the Town of Stratford and its Zoning Board of Appeals. Plaintiff brought and action against the Town and its Zoning Board of Appeals, alleging inverse condemnation and unjust enrichment arising from their refusal to grant variances relating to wetlands and lot width so that Plaintiff could develop unimproved parcel as a residential building lot. The Superior Court rendered judgment in the Town’s and Board’s favor, and denied the landowner’s motion to set aside judgment.

On appeal, Plaintiff contended that the court improperly determined that he failed to prove his claim for inverse condemnation. Specifically, he argued that he had a reasonable investment-backed expectation that he would be able to build a residential home on the property, and that the board’s denial of the requested variances has frustrated this expectation. Here, however, both parties conceded that if Plaintiff adjusted the building line by inserting a limitation in his deed so that the lot width deficiency was remedied, and the board approved a building plan consistent with that adjustment, Plaintiff would be able to build a home on his property. Therefore, the court found that the problem could be solved with relatively little expense. Moreover, because the plaintiff failed to establish either that it had been deprived of all beneficial use of the property or that it had been deprived of a reasonable investment-backed expectation, the court held the dismissal of the plaintiff’s inverse condemnation claim was proper. Since the court rejected the inverse condemnation claim, it likewise denied plaintiff’s unjust enrichment claim.

Santos v Zoning Board of Appeals of Town of Stratford, 174 Conn. App. 531 (CT App 7/1//2017)

In 2008, Cheltenham Township amended the Cheltenham Code by enacting a zoning ordinance that created an Age Restricted Overlay District. In 2010, the Township repealed the 2008 Ordinance, and an age-restricted overlay district did not exist in Cheltenham Township for two years. In 2012, the Township enacted a new ordinance reinstating an Age Restricted Overlay District with more stringent dimensional criteria than the 2008 Ordinance.

In this case, the Board of Commissioners of Cheltenham Township appealed from an order of the Court of Common Pleas of Montgomery County, which affirmed a decision of the Cheltenham Township Zoning Hearing Board (ZHB), granting Developer Hansen–Lloyd, L.P.’s application for special exception and other zoning relief to construct an age-restricted housing development on its property. In granting the zoning relief, the ZHB applied the ordinance in effect when Developer filed its sketch plan, rather than the later-adopted ordinance in effect when it filed the application for zoning relief. The question for the court was therefore whether, under the Municipalities Planning Code (MPC), the filing of a mandatory sketch plan created a vested right for consideration of the plan as well as any related future zoning applications under the ordinance in effect when the sketch plan was filed.

Here, the record reflected that when the Developer submitted the mandatory sketch plan, the 2008 Ordinance was in effect. Although the Developer did not seek zoning relief until May 2015, the Developer’s sketch plan for its land development was still pending before the Township. Developer stipulated its application would not meet the zoning criteria under the 2012 Ordinance for special exception; however, because Section 508(4) of the MPC protected applications from adverse zoning changes, the court held that the ZHB properly determined that the 2008 Ordinance governed.
The Township next argued that, under the 2008 Ordinance, Developer was required to provide 50 feet for the building setback and 50 feet for the parking setback. However, the court rejected this contention, finding the 2008 Ordinance did not require a setback from a municipal boundary line, and municipal boundary lines did not constitute property lines for purposes of setbacks. Furthermore, the court found that the ZBA did not exert any control over land located in another municipality in making this determination. As such, the ZBA’s holding was affirmed.

Board of Commissioners of Cheltenham Township v Hansen-Lloyd, 166 A, 3d 496 (PA Commwlth 7/6/2017)

Applicant Marr Development Mifflinville, LLC appealed from an Order of the Court of Common Pleas, which affirmed a decision of the Mifflin Township Zoning Hearing Board to deny Applicant’s request for a special exception to construct 11 single-family attached dwellings, or duplexes. The Board denied the application on the ground that the proposed duplexes were not compatible with, or in the best interest of, the surrounding area. Applicant initially appealed to common pleas, which remanded the matter after finding the Board improperly placed the burden of establishing general compatibility with the surrounding area on the Applicant rather than the objectors. On remand, the Board did not take additional evidence, but again denied the special exception. The court of common pleas then affirmed this denial.

Here, it was undisputed that Applicant met the objective requirements for a special exception, thereby satisfying its burden. As pertinent to this case, Section 431 of the Ordinance stated that the purpose of the RS District was “to promote and encourage a suitable and safe environment for family life by providing only for single family residences and residential support land uses.” Because the court found this section applied to both single family attached and unattached dwellings, it rejected the Board’s finding that the proposed use conflicted with the policy behind the Ordinance.

Additionally, the court found that there was no traffic study presented before the Board. Instead, objectors merely testified as to their opinions that traffic would increase. These objections were further mitigated by the fact that the duplexes would be accessed from a cul-de-sac off a state route, not a township roadway. Thus, there was no substantial evidence to support the Board’s conclusion. Accordingly, the court reversed, holding the common pleas court erred in finding that the Board’s decision was supported by substantial evidence.

Marr Development Mifflinville, LLC v Mifflinville Township Zoning Hearing Board, 166 A. 3d 479 (PA Commwlth 7/3/2017)

Langlois owned property in the Swanton Shoreland Recreational Zoning District, with Heller as his abutting neighbor. Langlois spoke with a contractor about adding a pergola to a concrete patio which had been on the Langlois property for about twenty years. Ronald Kilburn, the Swanton zoning administrator, told Langlois that no permit would be needed for the construction. Langlois spent approximately $33,000 on the structure. It was undisputed that the pergola at issue exceeded the zoning regulations’ square footage limitation and the height restriction, and it did not meet the lot line setback requirement. When the Board directed Kilburn to take corrective action, and Kilburn sent Langlois a Notice of Zoning Violation (NOV). The Environmental Division estopped the Town from enforcing its zoning regulations and requiring removal of the pergola.

On appeal, Heller claims that zoning administrator Kilburn did not have knowledge of the facts when he approved the pergola. The court disagreed, finding that since Kilburn to the property, reviewed the sketch, and had knowledge of the zoning regulations, Kilburn had knowledge of ample facts -including the structure’s height, apparent square footage, and apparent proximity to the property line – to accurately determine that a zoning permit was necessary for the pergola. Accordingly, the court found Kilburn had knowledge of the facts sufficient to know that a zoning permit was required for the pergola.
The record reflected that even Heller conceded, “Kilburn is a very experienced and competent legal and zoning professional” with twelve years of service as the Town’s zoning administrator, participated in drafting the Town’s first zoning regulations and was the chair of the Act 250 district commission for the region that includes the Town. As such, the court determined that Kilburn was the “authorized agent of the government” responsible for enforcing zoning regulations, and he gave his opinion knowing that Mr. Langlois would act upon it. Moreover, despite Heller’s contention that the Langlois had general knowledge that a zoning permit was required in some instances, the court found that did not put Langlois on notice that the proposed pergola required a permit. Instead, relying on Kilburn’s statements, Langlois incurred over $30,000 in costs to construct the pergola. Accordingly, the court affirmed, holding that the injustice to Langlois outweighed any negative effect upon public policy that could result from estopping the Town.

In re Langlois/Novicki Variance Denial, 2017 WL 3662437 (VT 8/25/2017)

Editor’s Note: The following summary appears in September 2017 issue of Religious Freedom Focus published by the Civil Rights Division of the USDOJ: the https://www.justice.gov/crt/religious-freedom-focus-volume-71-september2017

On September 5, the Civil Rights Division announced that it had reached an agreement with Bensalem Township, Pennsylvania, to resolve allegations that the Township violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) when it denied zoning approval to allow a local Muslim organization to build a mosque on land it owned in the Township.
The United States filed suit in July 2016, alleging that the Township violated the RLUIPA rights of the Bensalem Masjid when it denied it a variance to build a mosque on three parcels of land that it had purchased on a main road in the Township.  The suit alleged that the denial imposed a substantial burden on the Bensalem Masjid’s religious exercise, treated the group less favorably than the Township treated nonreligious assemblies in similar zones, and discriminated against it on the basis of religion in light of its treatment of prior variance applications by other religious entities. The suit also alleged that the Township violated RLUIPA’s prohibition on governments placing unreasonable limitations on religious assemblies, based on the zoning code’s restrictions on places of worship generally.  The United States District Court for the Eastern District of Pennsylania denied the Township’s motion to dismiss in November 2016.
As part of the agreement, the Bensalem Masjid will be permitted to build its mosque. The Township has also agreed to review and amend its zoning ordinance to comply with the requirements of RLUIPA, and take other remedial measures.  The Township also resolved a private lawsuit brought by the Bensalem Masjid against Bensalem Township.
On the day the agreement was announced, Acting Assistant Attorney General John Gore, head of the Justice Department’s Civil Rights Division, stated:  “Federal law protects the rights of all religious communities to build places of worship free from discrimination. This agreement ensures that all citizens of Bensalem Township may freely exercise this important civil right.”

 

Editor’s Note: This posting originally appeared on the RLUIPA Defense Blog and is reposted with permission. See: https://www.rluipa-defense.com/2017/09/municipality-prevails-in-dispute-over-personal-chapel/

 
The City of Brier, Washington (City) has prevailed over claims that it violated the Religious Land Use & Institutionalized Persons Act (RLUIPA) and other federal law in a dispute over a variance application to construct a personal Serbian Orthodox chapel.
The case was brought by Vladan Milosavlejevic and his company (the Plaintiff), who sought to build a personal Serbian Orthodox chapel on company-owned property. The Plaintiff claimed that his chapel had to meet specific architectural dimensions, including two domes, each spanning more than 40 feet in height, to be used as “vehicle[s] for … prayers to be sent to the heavens.” The Plaintiff required a variance to construct the chapel, as the property is in the City’s single-family residential zone, which has a maximum height of 30 feet. The City denied the variance because the Plaintiff failed to satisfy 6 of the 8 zoning criteria, and the Plaintiff sued, alleging violations of RLUIPA’s substantial burden and equal terms provisions and 42 U.S.C. § 1983. The United States District Court for the Western District of Washington at Seattle granted summary judgment in favor of the City on these claims.

 
The Court found that denial of the variance application did not impose a substantial burden on religious exercise, because there were other suitable sites for worship within the City. In the Ninth Circuit: “[a] substantial burden exists where the government authority puts substantial pressure on an adherent to modify his behavior and to violate his belief. When the religious institution has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the application might be indicative of a substantial burden.” The Plaintiff’s own witness, an orthodox priest, stated that religious prayer could occur anywhere, including at the Plaintiff’s home – where the Plaintiff had worshipped in the past. Further, there was no evidence that the distance between the Plaintiff’s residence and alternative places of worship or the cost of travel would force the Plaintiff to modify his religious behavior, or that there was any difference in the type of worship services between the churches. “While worshipping within a home or church in Snohomish and King Counties is unsatisfactory to Petitioner, this inconvenience does not rise to the level of a substantial burden,” according to the Court.

 
The Court also rejected the Plaintiff’s RLUIPA equal terms claim. While the Court questioned whether the Plaintiff and his family constitute a religious assembly subject to the protection of the equal terms provision, it nevertheless considered the merits of the claim. The Court ruled that the equal terms claim failed because the Plaintiff could not identify a comparator that was treated better by the City. The Plaintiff claimed that utility towers were suitable comparators and received preferential treatment by the City. However, utility towers were not suitable comparators, because “[t]hey serve completely different purposes, and they are located within different City zones with different zoning criteria.” The Court also entered judgment in favor of the City with respect to the § 1983 claims, which relied on the same facts and theories as the RLUIPA equal terms claim.

 
Milosavlejevic v. City of Brier, C16-1414RSM (W.D. WA 9/7/2017). The opinion can be accessed here: https://www.rluipa-defense.com/wp-content/uploads/sites/9/2017/09/doc-45.pdf

Plaintiffs, Paul and Tamara Attard, desired to develop their two properties in Contra Costa County, but failed to obtain the necessary regulatory approvals. Because the properties were located well outside local urban limits, they were not served by any municipal sewage system. Although the Attards attempted to obtain County approval of two different means for individual sewage disposal on their property, they were unsuccessful. Despite this, the county issued the Attards permits to develop their properties, including a permit for construction of an 8400-square foot home. By the time the County discovered its error and notified the Attards, the Attards had made substantial progress toward installing a foundation for the new home on one of the properties. The County nonetheless revoked the permits, and this decision was affirmed by the county Board of Supervisors. The Attards then filed a petition for writ of mandate challenging the revocation. In the petition, they contended the County was precluded from revoking their permits under the doctrines of vested rights and equitable estoppel. The trial court denied the writ petition.

As to the vested rights claim, the applicable Oakland Municipal Code requires any person performing any work “for the purpose of discharging sewage into the city’s sewer system” to obtain a permit for that activity from the city. Here, not only had the Attards failed to obtain the required permit, Oakland confirmed in a letter to the County that they had not even applied for a permit. Moreover, the County’s alleged issuance of permits approving the Attards’ plans did not grant the Attards a vested right to pursue them, as that same Oakland letter stated that no county Local Agency Formation Commission (LAFCo) approval had been sought or obtained. This fact defeated the Attards’ vested rights claim, as Government Code section 56133 prohibits an agency from providing such services “outside its jurisdictional boundary” without permission from the LAFCo.

As to the equitable estoppel claims, the court first noted that in land use cases, “courts have severely limited the application of estoppel … by expressly balancing the injustice done to the private person with the public policy that would be supervened by invoking estoppel.” Here, while the Attards had invested approximately $550,000 installing foundation piers on their property, any injustice they suffered was mitigated by their failure to obtain the necessary approvals from Oakland and LAFCo and to disclose to the County the unpermitted nature of their proposal, prior to issuance of the permit.

The Attards lastly contended they were denied a fair hearing of their appeal as a result of the bias of one member of the Board, Gayle Uilkema. In an e-mail, Uilkema stated that “an illegal connection has been made to a CalTrans sewer in the Caldecott Tunnel without the necessary land use permits,” and claimed the Attards “have been bypassing the legal authority of Contra Costa County for many years.” While the court determined that Uilkema’s e-mail could potentially demonstrate bias, it held that the Attards forfeited this claim when they failed to raise the issue of bias at the Board hearing and seek Uilkema’s recusal.

Attard v Board of Supervisors of Contra Costa County, 2017 WL 3711765 (CA App. 8/29/2017)

 

South Grande View Development Company, Inc. (SGV) was a real estate development company which bought approximately 140 acres of land in the City of Alabaster for $1.65 million. When SGV purchased the land, a portion of it was zoned for a mixture of single-family residences (“R-2”), garden homes (“R-4”), and townhomes (“R-7”). Between 2005 and 2007, SGV spent approximately $3.5 million clearing and grading the property for the development of R-4 lots. However, in 2011, the city re-zoned SGV’s property for R-2 lots only. SGV’s owner, Concetta Givianpour, testified that the property was not topographically suitable for a residential development of R-2 lots, and even if it was suitable there was no market for R-2 lots in Alabaster. SGV therefore argued that the re-zoning constituted a taking under the Fifth Amendment for which the City of Alabaster must compensate SGV.

 


As the parties did not dispute SGV retained at least some economic benefit of their land, the court found that for SGV’s takings claim to survive the city’s motion for summary judgment, the record needed to show a genuine dispute of material fact regarding whether a taking occurred under Penn Central. To this point, Ms. Givianpour testified that the re-zoning rendered the property valueless because, even though she could spend money to develop the property to conform to the new zoning, “no one would buy it.” In rebuttal, former Alabaster city planner Harry Still testified that R-4 and R-7 zoning were inconsistent with the established developments surrounding SGV’s property, and a market existed in Alabaster for R-2 lots. The court noted that neither party presented expert evidence in this case in support of its motion for summary judgment. Accordingly, the Court declined to determine as a matter of law whether the re-zoning constituted a taking under the Fifth Amendment.

South Grande View Development Co., inc. v City of Alabaster, 2017 WL 3704839 (ND AL 8/28/2017)

 

Robert and Carin Diercks purchased a vacant lot in the subdivision located directly behind their house and began construction of a garage. Plaintiffs, group of homeowners in the subdivision, sued the Dierckses in the Escambia Circuit Court, contending that construction of the garage violated various restrictive covenants. The trial court entered summary judgment in favor of the plaintiffs, enjoined the Dierckses from further construction on the garage, and ordered the removal of what had been constructed. On appeal, the Court of Civil Appeals reversed the judgment of the trial court, holding that the trial court had not properly applied the restrictive covenants.

The court first noted that even though lots can be combined and re-subdivided, absent an express provision of the covenants permitting a combined lot to be treated as a single lot for the purposes of applying the restrictive covenants, the property must always conform with the covenants as they originally attached to the property. Here, Covenant 1.C. originally provided that “carports and garages must not open on or face toward the front of the lot.” The Dierckses argued that their combination of lot 58 that fronted Brooks Boulevard, and lot 47 that fronted Robin Drive, created an ambiguity as to which side of the combined lot is the “front.” The court therefore looked to the covenant as originally intended by the parties at the time the covenant was created. In doing so, the court determined the intent of the covenant was to prohibit a garage or carport located on lot 58 from opening onto Brooks Boulevard. Accordingly, the Court of Civil Appeals’ decision was reversed and remanded.

Odom v Odom, 2017 WL 3821466 (AL 9/1/2017)

Denton County Cowboy Church built a church building and an outdoor rodeo arena on its property that hosted weekly rodeo events. The Church then purchased another twelve-acre tract adjoining the original property, and then began construction of a 350-foot by 175-foot rodeo arena. Four months after the Church began construction, it filed an application with Ponder for a commercial building permit, which the Town of Ponder issued. Appellants – Peter Schmitz, Sean Pollock, and Larry and Becky LaDuke – brought a suit seeking a temporary restraining order and injunctions prohibiting the Church from continuing construction. Appellants amended their petition, alleging nuisance injuries and claims against Ponder for impermissible spot zoning. The trial court dismissed these claims.

At the outset, the court first noted that since many of the claims sought only a declaration of rights or alleged an ultra vires claim without naming any individual actors, rather than attacking the validity of the amendments voted on by the Town Council, the trial court properly dismissed them. On appeal, appellants argued that Ponder’s immunity for the declaratory judgment claims was waived under section 37.004 of the Uniform Declaratory Judgments Act (UDJA) and section 154.99 of Ponder’s zoning ordinance. Here, however, the court found that Ponder’s actions in granting the zoning change and issuing the SUP were not an “ordinance” within the meaning of section 37.004(a), as the Town Council merely voted on motions to change the zoning classification of the new property and to issue the SUP. Accordingly, the court held Ponder’s immunity was not waived. Furthermore, because the court found there was no valid government action, it held that the trial court did not err by determining appellants failed to allege a viable takings claim upon which their section 1983 claim could be based.

Appellants’ next argued that Ponder acted outside its authority in issuing the building permits and approving the zoning change and issuance of an SUP by vote of the Town Council. However, because appellants sued only Ponder and did not name any town officials as defendants, the court held that the trial court did not err by dismissing those claims without allowing appellants to file amended pleadings.

Lastly, appellants argued that the trial court had jurisdiction to determine declaratory judgment claims against the Church because they alleged sufficient jurisdictional facts to show that the Church sought impermissible spot zoning from Ponder. The court first determined that nothing in the local government code section 211.012(c) precluded or limited any common law or other right of a landowner directly affected by a neighbor’s use of property from seeking intervention from the court. Additionally, the court noted nothing in RLUIPA purported to deprive a trial court of jurisdiction to consider whether a church’s use of its property encroaches upon a neighboring property owner’s right to use and enjoy their property. However, since only Schmitz testified at the hearing on the plea to the jurisdiction, and he was the only plaintiff who presented evidence relative to whether he had suffered a particularized injury. Specifically, Schmitz claimed that the operation of the old Arena had substantially interfered with his use and enjoyment of his property due to excessive noise, light, and odor, which sometimes prohibited him from using his backyard. Schmitz further claimed that the same type of injuries would occur temporarily due to the construction activities. Based on these allegations, the court held that Schmitz sufficiently alleged at least a reasonable likelihood that his claim would soon ripen and was therefore sufficient to plead a particularized injury.

For the aforementioned reasons, the court affirmed the trial court’s dismissal of Pollock’s and the LaDukes’ claims against the Church and Town of Ponde, affirmed the trial court’s dismissal of Schmitz’s claims against Ponder, and reversed the dismissal of Schmitz’s claims against the Church and remanded that part of the case to the trial court.

Schmitz v Denton County Cowboy Church, 2017 WL 3821466 (Tx. App. 8/31/2017)

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