This CPLR article 78 was brought to review a determination of the Zoning Board of Appeals of the City of Long Beach, which revoked a building permit previously issued to the petitioners/plaintiffs. Petitioners also sought a judgment declaring that they were entitled to the building permit. In this case the petitioners appealed from a September 2010 order of the Supreme Court, Nassau County, which granted that branch of the motion of the defendants to dismiss the sixth cause of action as asserted against them. In making this determination, the court found that the petitioners did not allege sufficient facts to support their claim that the defendants’ alleged actions effected a deprivation of their constitutional rights, and that the individual defendants, who were members of the Zoning Board of Appeals of the City of Long Beach, were immune from suit for monetary damages.

The plaintiffs took a limited appeal from the September 2010 order, in which they challenged the court’s ruling with respect to the sixth cause of action. The Supreme Court stated that it was “unclear” as to whether the court’s determination of the appeal from the September 2010 order “impacted” the Supreme Court’s finding in that order that the individual defendants had qualified immunity from claims seeking damages under 42 USC § 1983. In light of its uncertainty about our disposition of the appeal from the September 2010 order, the court granted the individual defendants leave to move to “be let out of the case” as to the fourth and sixth causes of action.
On appeal, the court found that the plaintiffs’ notice of appeal from the September 2010 order specifically encompassed that part of the order which “granted Defendants’ motion to dismiss Count … Six.” As such, the September 2010 order to dismiss the sixth cause of action insofar as asserted against the individual defendants was properly before the court on the plaintiffs’ appeal from that order. The court further found that its decision and order on the appeal from the September 2010 order clearly reversed the order granting the defendants’ motion to dismiss the sixth cause of action insofar as asserted against all of the defendants. Accordingly, the court held that the reversal of the September 2010 order necessarily rejected the individual defendants’ claims of qualified immunity. The order dismissing the sixth cause of action against the individual defendants was therefore reversed.

Haberman v ZBA of Long Beach, 2017 WL 3044986 (NYAD 2 Dept. 7/19/2017)


The Edward J. Sullivan Court House was constructed by Middlesex County between 1968 and 1974 on land owned by the county on Thorndike Street in Cambridge. The court house was immune from the local zoning ordinance when it was built, and in the ensuing years when it housed the Superior Court, the Cambridge Division of the District Court Department, and associated court offices through 2009, and a jail facility through 2014. Defendant LMP GP Holdings, LLC (developer), was a private entity that entered into a purchase and sale agreement with the Commonwealth to purchase the court house, and had taken steps to obtain approvals to redevelop it. The sole issue on appeal is whether the court house, when it loses its governmental immunity by transfer to the developer, would constitute a preexisting nonconforming structure under G. L. c. 40A, § 6, and § 8.22.2(a) of the relevant zoning ordinance such that redevelopment may be approved by special permit.

The record reflected that the court house was immune from the floor-to-area ratio when it was constructed, and the provisions of the zoning ordinance would not become effective as to the court house until the structure lost its governmental immunity, which would occur when the property was conveyed to the developer by the Commonwealth. Here, the court house was existence long before the zoning ordinance would become effective as to it. Accordingly, the court held that the court house would become a preexisting nonconforming structure when it loses its governmental immunity.

Gund v Planning Bd. of Cambridge, 91 Mass. App. Ct. 813 (7/19/2017)

Plaintiffs Thomas G. Hahn, Jr., Jeanne Halstead, and Barbara Butts, and the defendant, Johanne Hagar, were siblings, who owned a 101–acre farm, known as the “Hahn Farm,” located in the Town of Pleasant Valley, Dutchess County. The property, had been in the parties’ family for more than 240 years, and was owned jointly by their parents until their father’s death in 1995, and then solely by the parties’ mother, Edna Hahn, until her death. Edna Hahn’s will conferred a qualified life estate in the property upon Thomas G. Hahn, Jr., and left the remainder interest to her four children in equal shares. The plaintiff Thomas G. Hahn, Jr., who holds a qualified life estate in the property, and two of his sisters, who hold remainder interests, sought authorization pursuant to RPAPL 1602 to sell the development rights to the property in order to preserve its future use as a farm.

Although the parties stipulated to a definition of “development rights,” the court found that the specific rights or burdens broadly referred to by this term could vary according to contractual terms or applicable governing statutes. The court held that development rights, as defined by the parties, constituted “real property, or a part thereof,” for purposes of RPAPL 1602. Despite this, the court affirmed the dismissal of the cause of action because the plaintiffs failed to establish that the proposed sale of development rights would be expedient. Specifically, the plaintiffs failed to present any evidence of a proposed buyer for the development rights or the value of the underlying property with and without the development rights. Additionally, plaintiffs failed to present evidence of any other tangible or intangible benefit that could be achieved by a sale of the development rights, or that the sale of the development rights was necessary to preserve the property as an asset. Accordingly, the court held that the Supreme Court properly directed the dismissal of the cause of action pursuant to RPAPL 1602.

Hahn v Hager, 2017 WL 3045806 (NYAD 2 Dept. 7/19/2017)

Editor’s Note: This summary appeared on the RLUIPA Defense blog and is republished with permission. See,

The U.S. Court of Appeals for the Seventh Circuit has affirmed the decision of the Northern District of Illinois, finding against a faith-based recovery home’s claims of religious discrimination and Fair Housing Act violations stemming from a fire code dispute over the installation of a sprinkler system.  The plaintiff, Affordable Recovery Housing (ARH) sought to operate a faith-based recovery home in the city of Blue Island that would provide support services, overnight lodging, meals and recreation, job training, medical and dental referral, religious outreach, and other services to adult men recovering from drug and/or alcohol addiction.  After the mayor approved of ARH’s use, ARH moved 73 men into a facility it had leased from a Catholic order of nuns called the Mantellate Sisters of Mary.  The following year, the city of Blue Island’s fire chief decided that before using the buildings, ARH had to install expensive sprinkler systems in the rooms where residents would sleep.  The City Council approved the fire chief’s decision.  While the city’s zoning board of appeals approved ARH’s application for a special permit, it denied ARH’s request that ARH be given three years to install the sprinkler system.

According to ARH, its 73 residents were “forced” to leave after the city decided that sprinklers had to be installed.  ARH sued and alleged violations of Illinois Religious Freedom Restoration Act (IRFRA), RLUIPA, the Fair Housing Act, and the U.S. Constitution.  The District Court ruled in 2014 that because ARH is a state-licensed facility, it is governed by state safety regulations (no sprinkler required), which preempted the city’s safety code regulations – meaning ARH need not install sprinklers.  ARH pressed on with its federal claims in order to seek damages and attorneys’ fees, but the Court found for the city.
The Seventh Circuit affirmed.  It concluded that the IRFRA claims failed, since “there is no evidence that the expulsion, which turned out to be temporary when the applicable state law was discovered, was attributable to anything other than an honest concern with possible fire hazards to the residents.”  Further, ARH “could have avoided the expulsion by researching the state and local regulations applicable to group recovery housing before beginning its project.  Nothing compelled it to rush headlong into business; it chose to take that risk.”  The Seventh Circuit further ruled that even if the sprinkler requirement was a “land use regulation” triggering RLUIPA, there is no violation as ARH “is not being excluded from Blue Island or even required to install a sprinkler system.”  Finally, the Court rejected ARH’s Fair Housing Act claim, because “Blue Island’s exclusion when it forced 73 residents to leave was quickly undone when [ARH] discovered the supervening state law regarding sprinkler systems.”
Affordable Recovery Housing v. City of Blue Island (7th Cir. 6/17/2017)


This Article 78 proceeding was brought to review a determination of the Zoning Board of Appeals of the City of Long Beach, which revoked a building permit previously issued to the petitioners. The Zoning Board of Appeals of the City of Long Beach, Rocco Morelli, Lenny Torres, Marcel Weber, Michael Fina, Stuart Banschick, Lorraine Divone, and Michael Leonetti appeal, and the City of Long Beach and Scott Kemins, as Commissioner of the Department of Buildings of the City of Long Beach separately appealed, as limited by their respective briefs, from an order, which granted the petitioners/plaintiffs’ motion for leave to enter a default judgment against them and denied their respective cross motions for leave to file amended answers to the third amended petition/complaint.

The appellants moved pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss the first, second, fifth, and sixth causes of action of the third amended complaint as asserted against them. The Supreme Court granted that branch of the motion, but the appellate court reversed that portion of the order and denied the motion. The petitioners then served a written demand that an answer be served within 10 days. The court found that by establishing that the appellants failed to comply with that demand, the petitioners established the appellants’ default. Accordingly, the court held that the petitioners were not required to provide proof of entry of the appellate order with the clerk of the original court. Since the appellants failed to demonstrate a reasonable excuse for their default, the court affirmed the holding in favor of the petitioners.

Haberman ZBA of Long Beach, 2017 WL 3045109 (NYAD 2Dept.7/19/2017)

This appeal arose from the request of plaintiff-petitioner for the approval of defendant-respondent for a proposed commercial structure that included a Tim Horton’s restaurant with a drive-through window. Defendant initially issued a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA), in which it designated the project as an “unlisted action” rather than a Type I or Type II action pursuant to SEQRA, and requested that plaintiff prepare a draft environmental impact statement (DEIS) in connection with its proposal. After plaintiff submitted an updated site plan and requested that defendant reclassify the project as a Type II action pursuant to SEQRA, eliminating the need for a DEIS, defendant adopted Orchard Park Local Law No. 9–2014, which provided that actions involving “drive-through stations or windows, including but not limited to restaurants and banks” would be designated as Type I actions under SEQRA. Defendant subsequently denied plaintiff’s request that the project be reclassified as a Type II action, and unanimously adopted a resolution that designated the project a Type I action.

Plaintiff commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking a declaration that Orchard Park Local Law No. 9–2014 was invalid, and a judgment annulling defendant’s determination that the project was a Type I action, and determining that the project was a Type II action. The Supreme Court granted judgment in favor of plaintiff, declaring that Local Law No. 9–2014 was null and void “insofar as that law designates drive-through facilities as Type I actions under SEQRA,” annulling defendant’s classification of the project as a Type I action, and determining that the project was a Type II action.

At the outset, the court found that plaintiff’s first cause of action, seeking a declaration invalidating Local Law No. 9–2014, was timely commenced inasmuch as it was a challenge to the substance of the law and was therefore subject to a six-year statute of limitations. Next, although 6 NYCRR 617.5(c)(7) did not explicitly include the construction of a restaurant with a drive-through window as a Type II action, the court held that the Department of Environmental Conservation contemplated restaurants with drive-through windows as Type II actions when it promulgated that regulation. As such, the court determined that the lower court properly annulled defendant’s classification of the project as a Type I action on the ground that the classification was affected by an error of law: as Local Law No. 9–2014 was inconsistent with SEQRA. Regardless, however, the court held that the lower court should have declined to accept, without a revised review by defendant, plaintiff’s contention that the project be classified as a Type II action. The court therefore annulled the determination that the project was a Type II action, and remitted the matter to defendant for a new determination.

Miranda Holdings, Inc v Town Board of Town of Orchard Park, 2017 WL 2884633 (NYAD 4 Dept. 7/7/2017)

Editor’s Note: This post first appeared in Municipal Minute and is reposted with permission.  See:

In Youngberg v. Village of Round Lake Beach, a municipality passed an ordinance making it unlawful to store any vehicle on private land unless the vehicle was duly registered for operation on the public highways of the State of Illinois. The plaintiff was issued citations by the municipality for parking two unregistered vehicles in his driveway. After an administrative adjudication hearing, the plaintiff was found to have violated the ordinance, and was issued fines. The plaintiff filed a complaint for administrative review, and the municipality’s decision was upheld by the circuit court.

On appeal, the plaintiff argued the municipality lacked the statutory authority to prohibit him for keeping an unregistered vehicle on his property. The plaintiff claimed that the Illinois Vehicle Code prohibited the operation of unregistered vehicles on public highways, but did not prohibit the storing of such vehicles on private property.  Further, the plaintiff argued that storing an unregistered vehicle on private property does not create a nuisance, and therefore the municipality lacked the statutory authority to declare otherwise by ordinance.

The court began its analysis by noting that, as a home rule unit, the municipality was not constrained by statute. Rather, the municipality was authorized to exercise any power and perform any function pertaining to its government and affairs, so long as the General Assembly has not preempted the use of home rule powers in that area. The plaintiff challenged whether the municipality’s ordinance pertained it to its government and affairs, arguing that it was the State of Illinois that had the more vital interest in making certain that state vehicle registration fees are paid. The municipality argued that when unregistered vehicles are kept on private property, they attract vermin, allow stagnant water to pool, and become eyesores.  The municipality maintained that preventing these conditions protected the health and welfare of the community.

The court found that the municipality’s ordinance served the distinctly local function of helping to guard against unhealthy and unsightly conditions within the municipality’s boundaries. As such, the court held that the ordinance pertained to the municipality’s government and affairs, and therefore was a valid exercise of the municipality’s home rule powers.

The plaintiff also argued that the ordinance exceeded the municipality’s police power as a home rule unit. The court acknowledged that ordinance was somewhat overinclusive, as not all unregistered vehicles will become eyesores. The court also noted that the ordinance was somewhat underinclusive, as some properly registered vehicles might become health hazards or eyesores.  Nonetheless, the court found that it was reasonable to “attack the problems associated with unused vehicles by prohibiting the unenclosed storage of vehicles that cannot be driven legally.” Consequently, the court found that the ordinance was also a proper exercise of the municipality’s police power.

Many municipalities have enacted similar ordinances prohibiting the unenclosed storage of unregistered vehicles.  This case confirms that, at least for home rule units, these ordinances are valid as an exercise of the municipality’s home rule and police powers.

Youngberg v Village of Roundlake Beach, 2017 IL App (2d) 160539 (7/14/2017)

Disclaimer: Ancel Glink represented the Village of Round Lake Beach in this case. 

The Goersches purchased a home in Satellite Beach in 2012. The property contained an opaque fence which was installed in 2006, and became non-conforming in August 2007 as a result of an amendment to the Satellite Beach Code of Ordinances. The Goersches applied for a permit to extend their existing fence. The permit was issued, and the fence was installed; however, the building inspector refused to issue a certificate of completion for the fence because it violated the opaqueness amendment. The Board entered an order denying the Goersches’ variance application, and the Goersches sought certiorari review in the circuit court, arguing that the Board’s order denying their variance application was not supported by substantial competent evidence. The circuit court granted the certiorari petition, quashing the decision of the Board and remanding the matter to the Board. The Goersches then sought a variance from the Code to allow the completed, noncompliant fence to remain in place. In this case, the City of Satellite Beach sought second-tier certiorari review of the circuit court’s order quashing the Board of Adjustment’s denial of the Respondents’, Klaus and Brigitte Goersches’, request for a fence variance.

The court first noted that when a party seeks certiorari review of the circuit court’s order, the district court conducts a “second tier” review and determines “whether the circuit court afforded procedural due process and applied the correct law.” Here, neither party claimed that it was denied procedural due process; thus, the only issue before the court was whether the circuit court applied the correct law. For a variance request, the applicant, the Goersches, carry the burden to establish that the criteria necessary to grant the request is met. The Board concluded that the Goersches did not meet that burden, and the record supported this conclusion. Because the Goersches never met their burden, the burden did not shift to the City to show that there was substantial competent evidence to support the Board’s denial of the variance request. Accordingly, the circuit court failed to apply the correct law by shifting the burden to the City to demonstrate that the Board’s denial was supported by substantial competent evidence.

City of Satellite Beach v Goersch, 217 SO 3d 1143 (FL App. 5/26/2017)

Appellants Moose Hollow Holdings, LLC and Blue Skies West, LLC owned residential property in rural Teton County. JCFT Wyoming Real Estate, LLC owned two parcels in the same area: one a 53.2- acre parcel, and the other a six-acre parcel. At Appellants’ request, the Teton County planning director issued a formal rule interpretation concerning a 2006 development permit associated with the JCFT property. At JCFT’s request, the planning director issued a zoning compliance verification (ZCV) concerning JCFT’s six-acre parcel. Appellants disagreed with the planning director’s conclusions on both matters and appealed the rule interpretation and ZCV decision to the Teton County Board of County Commissioners. The Board found Appellants lacked standing to appeal either action and that their appeal of the ZCV decision was also untimely. Based on those findings, the Board dismissed Appellants’ appeals. On review, the district court upheld the Board’s dismissal on the same grounds.
As to injuries stemming from the planning director’s decisions, Appellants alleged increased housing density, loss of scenic views, loss of wildlife habitat and migration corridors, and dangerous conditions created by increased traffic on their access road. Even accepting these allegations as true, the court found them insufficient to establish Appellants’ standing. Furthermore, Appellants failed to cite any statute or LDR provision that allowed a right to appeal based on a party’s role in requesting a rule interpretation.
As to ripeness, the court found the planning director’s decisions were preliminary decisions in determining what development might be permitted on the JCFT parcels. Here, there was no approved development permit to review, and the court did not know what conditions might be placed on such a permit. A judicial decision at this stage would therefore be premature and would interrupt the County’s process for evaluating development. Accordingly, the court held that Appellants lacked standing to challenge the Teton County planning director’s rule interpretation and ZCV decision, and neither decision was ripe for judicial review.
Moose Hollow Holdings v Teton County Bd. of County Commrs, 396 P. 3d 1027 (WY 6/21/2017)

This case centered around an undeveloped parcel of roughly 241 acres of land surrounding the interchange of M–55 and US–131 that was zoned for forest-recreational use in Clam Lake Township. Approximately 141 acres were owned by appellees TeriDee LLC, the John F. Koetje Trust, and the Delia Koetje Trust (collectively, TeriDee), who wished to develop a mixed-use project on the property, including stores and other commercial entities. To that end, TeriDee sought approval of an Act 425 agreement between appellant Clam Lake Township and appellee city of Cadillac, to transfer the property to Cadillac’s jurisdiction to facilitate its commercial development. But a voter referendum rejected the agreement. TeriDee filed a petition to have the land annexed by Cadillac in 2011. About the same time, Clam Lake Township and Haring Charter Township entered into an Act 425 agreement to transfer the land to Haring. The Commission rejected the petition and invalidated the Act 425 agreement, finding that the agreement failed to define any economic development project and was instead a ploy to prevent Cadillac’s annexation. TeriDee sued the Townships, seeking a declaratory judgment that the Act 425 agreement was invalid. The Townships appealed, and the Court of Appeals affirmed, finding the “the plain language of the agreement improperly contracts away Haring’s zoning authority over the undeveloped property by providing how Haring must zone the property.”
As to the Commission’s authority over annexation petitions, MCL 123.1011a granted the Commission “jurisdiction over petitions or resolutions for annexation as provided in [MCL 117.9].” The court found that while these statutes gave “broad powers concerning annexations,” none mentioned Act 425 agreements or purported to grant the Commission authority over them. Act 425 did not condition preemption on a finding that the contract was otherwise valid, and did not expressly grant to the Commission the power to determine the agreement’s validity. As such, the Commission may only make an initial determination of whether the Act 425 agreement was operative, and whether the contract was entered into by the parties and filed in accordance with the statute. Here, there was no dispute that the parties had entered into the Act 425 agreement and that it was properly filed with the Wexford County Clerk and the Secretary of State at the time the Commission considered the annexation petition. Accordingly, the agreement was “in effect” and preempted TeriDee’s annexation petition.
The court next analyzed whether the Townships’ Act 425 agreement was void as against public policy for impermissibly contracting away Haring’s legislative zoning authority. The court interpreted MCL 124.26(c) to authorize local units to bargain over the adoption of ordinances, which included bargaining over their content and substance. Moreover, the court found State Constitution encouraged legislation that allows local governments to “enter into contractual undertakings or agreements with one another … for the joint administration of any of the functions or powers which each would have the power to perform separately … [or to] transfer functions or responsibilities to one another ….” Accordingly, the Legislature in Act 425 properly enabled local units to contract for zoning. The Court of Appeals’ contrary conclusion was therefore reversed.
Clam Lake Township v Dept. of Licensing and Regulatory Affairs/State Boundary Commission, 2017 W: 2853480 (MI 7/3/2017)


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