Petitioner commenced a proceeding seeking to annul the decision of respondent Village of Fayetteville Board of Trustees to enact Local Law No. 1 of 2015, which amended the zoning district classification of two parcels following the issuance of a negative declaration of environmental significance under the State Environmental Quality Review Act, but provided that the amendment would “take effect only after approval by Onondaga County Department of Transportation and final site plan approval by the Village of Fayetteville Planning Board has been granted.” Respondent Village of Fayetteville and the Board of Trustees filed a joint motion seeking the dismissal of the petition. The Supreme Court granted the motion, concluding that the petitioner’s proceeding was “premature” and that the Board of Trustee’s action under SEQRA was “not ripe for judicial review.”
On appeal, the court found that the Board of Trustees’ simultaneous issuance of a negative declaration and adoption of the zoning amendment rendered petitioner’s challenges to the Board of Trustees’ action ripe for review. Furthermore, the fact that the zoning amendment “was conditioned upon successful reviews and approvals by other agencies did not alter the fact that it became final and binding as to petitioner on the date it was filed.” Moreover, although “rezoning is an ‘action’ subject to SEQRA”, and the future site plan approval process could also constitute an action under SEQRA, the court determined that the fact that petitioner might be aggrieved by a future SEQRA action did not affect the judicial ripeness of the SEQRA challenge relating to a prior action. Accordingly, the court found that when the Board of Trustees issued the negative declaration and amended the zoning laws, the Board of Trustees’ “decision-making process with respect to those issues was complete and petitioner became aggrieved by the SEQRA violation. As such, the court reversed the judgment, and remitted the matter to Supreme Court.
Cor Route 5 Company LLC v Village of Fayetteville, 2017 WL 460613 (NYAD 4 Dept. 2/3/2017)

The Blentlinger family farmed the two parcels of land on their property for multiple generations. Until 2007, the Property had a Low Density Residential (“LDR”) land use designation, pursuant to which a property owner is permitted to apply for a Planned Unit Development (“PUD”). In 2012, however, the BOCC reclassified the property as LDR. After the Property was rezoned as LDR, Lillian C. Blentlinger, LLC and William L. Blentlinger, LLC , appellees, filed a PUD zone application for the Property on February 25, 2014. The Blentlingers also filed a DRRA petition on March 11, 2014, which included a draft DRRA. The PUD rezoning application was approved with conditions that limited the total unit count to 675 residential dwelling units, consisting of 500 single-family units and 175 townhomes.  An additional condition required that the first building permit for the construction of a residence was not to be issued before January 1, 2020. The BOCC enacted the PUD rezoning ordinance and executed the final Development Rights and Responsibilities Agreement (DRRA) on November 24, 2014. The Appellants filed a petition for judicial review of both the PUD and DRRA actions in the Circuit Court for Frederick County, which was denied.

At the outset, the court noted that the BOCC’s approval of the Blentlinger-County DRRA, including the freeze provision set forth in § 8.1, did not impermissibly expand the scope of local laws, rules, regulations, and policies governing use, density, or intensity beyond the limits of LU § 7-304. The court then turned to Appellants’ argument that Maryland DRRA law did not authorize a DRRA to be converted into a real property interest. The court found that the statute plainly provided that a properly recorded DRRA bound not only the parties to the DRRA, but any successors in interest as well. Thus, it rejected Appellants’ covenant running with the land argument.

Appellants next alleged that the DRRA was void for lack of consideration because it lacked any “enhanced public benefits” to the County. Here, the benefits relied upon by the developer were already required of the developer under the County’s Adequate Public Facilities Ordinance. As such, the provisions of the DRRA did not reflect enhanced obligations of the developer, but rather the obligations the developer would otherwise be required to satisfy during the course of the development of the property if no DRRA were in place. Additionally, because the Developer retained fee simple ownership of the middle school site if the BOE “does not approve the Public  School site or determines not to accept conveyance of the site,” the court determined this “benefit,” at the time of execution and recordation of the DRRA, was a conditional promise and potentially illusory. Accordingly, the DRRA was found void for lack of consideration.

Cleanwater Linganore, Inc. et al. v. Frederick County, 2017 WL 462241 (MD 2/3/2017)


Petitioner-plaintiff Canandaigua National Bank, the trustee of the Max M. Farash Declaration of Trust, owned real property in the Town of Gates adjacent to Interstate 390. Developer Max M. Farash purchased the parcels and a sixth adjacent parcel in 1986, but never developed the property in accordance with the original industrial park plan. The Trust tried to sell the property in 2009, and the only offer came from petitioner-plaintiff Expressview Development, Inc., contingent upon its receipt of variances that would allow it to construct billboards that would be visible from the highway. The billboard would violate the Town of Gates Code § 190–22(E) which, prohibited commercial signs not located on the site of the business for which they advertise. Following an initial application that was denied without prejudice, petitioners-plaintiffs sought use and area variances permitting the installation of the billboards, but respondent-defendant Town of Gates Zoning Board of Appeals (ZBA) denied their application. Petitioners sought to annul the determination of the ZBA, and they argued that the Town of Gates Code § 190–22(E) was unconstitutional. The lower court dismissed the amended petition-complaint.

On appeal, the court found that petitioners’ primary contention that the ZBA failed to adhere to its precedent was without merit because petitioners failed to establish the existence of earlier determinations by the ZBA that were based on essentially the same facts as petitioners’ present application. Here, the settlement of a federal lawsuit in 1999 by the executive and legislative branches of the Town permitting the installation of certain billboards along the highway by a pair of outdoor advertisers was not a determination made by the ZBA as a result of its administrative variance process, and therefore did not constitute precedent from which the ZBA was required to explain any departure.

Furthermore, while subsequent changes in economic conditions might have rendered the industrial park plan financially infeasible, the record reflected that the extent of the limitations on the property of which Farash knew or should have known at the time of his purchase remained. The court found that Farash purchased the property after the approval of the industrial park plan, the adoption of applicable zoning restrictions, and the construction of the highway adjacent to the property. Accordingly there was substantial evidence supporting the ZBA’s determination that the hardship was self-created.

Petitioners’ final contention was that the Town of Gates Code § 190–22(E) was an unconstitutional restraint of freedom of speech under the First Amendment on the ground that it improperly distinguished between on-site and offsite commercial signs. However, the court rejected this claim under the intermediate scrutiny test for restrictions on commercial speech set forth in Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of N.Y. (447 U.S. 557, 561–566).

In the Matter of Expressview Development, 2017 WL 460597 (NYAD 4 Dept. 2/3/2017)

Plaintiff Peter Sauers sued Lower Southampton Township alleging violations of his rights under the United States and Pennsylvania constitutions. Specifically, Sauers alleged that the Township failed to provide the public with notice and a hearing in connection with the Township’s passage of a zoning ordinance, which resulted in rezoning from residential use to heavy commercial use a plot of land in close proximity to Mr. Sauers’s home. With the Court’s permission, Mr. Sauers filed an Amended Complaint specifically alleging violations of: state and federal constitutional rights to due process; federal constitutional right to equal protection; civil rights under both the United States and Pennsylvania constitutions; and of Pennsylvania’s Right to Know Law.

As to the substantive due process claim based on a land use decision by a municipality, the court found that apart from generic allegations of self-dealing and fraud, Mr. Sauers’s Amended Complaint failed to allege any facts to suggest that the Township or any of its employees acted in a way that shocked the conscience. Additionally, the court found the Amended Complaint failed to make out a cognizable procedural due process claim, as the record indicated that the Township afforded its residents with fair and due process. Here, the Township provided the public with notice of its proposed zoning ordinance by publication in a local newspaper and by then holding public hearings on the proposed zoning ordinance.

Next, the court found that Mr. Sauers failed to make out a cognizable equal protection claim because his allegations did not contain and evidence that the Township “irrationally distinguished between similarly situated classes.” Additionally, the court found that the allegations contained in Mr. Sauers’s Amended Complaint failed to make out a cognizable First Amendment retaliation claim because the Amended Complaint did not describe the constitutionally protected conduct Mr. Sauers engaged in, or the actions taken by the Township in retaliation. The court held that even if Mr. Sauers could make out a plausible Takings Clause claim, he failed to demonstrate that he exhausted the procedures provided by Pennsylvania law for seeking compensation for the alleged taking.

Sauers v Lower Southampton Township, 2016 WL 7319679 (ED PA 12/15/2016)


Plaintiff-appellant Thomas Beard used his five-acre land to operate numerous businesses, including excavation, trucking and hauling, salvage, loam, demolition, and plowing. Beard brought suit under 42 U.S.C. § 1983 alleging that defendants violated his Equal Protection rights under the Fourteenth Amendment by enforcing zoning restrictions against him while failing to enforce the same restrictions against other individuals who purportedly were similarly situated. In this case, Beard appealed from a judgment, granting summary judgment in favor of defendants-appellees Town of Monroe, its Planning and Zoning Commission, and Zoning Enforcement Officer Joseph Chapman.

Beard brought his Equal Protection claim under a “class-of-one” theory, arguing that the Town violated his Fourteenth Amendment rights by prohibiting loam manufacturing on his property while permitting others, Twombly and Smith, to engage in the same activity. However, the record indicated that Beard engaged in a number of non-conforming activities on his property that Twombly did not engage in on his property, such as storing multiple vehicles over one ton in capacity, and conducting excavation, trucking and hauling, salvage, demolition, and snow plowing businesses. Moreover, even though Twombly sold compost and mulch, he did so with a permit. Additionally, Beard generated significantly more neighborhood opposition than Twombly. Next, while Smith’s neighbor also registered complaints against him, the complaints were not as numerous as those against Beard.

Accordingly, the record demonstrated that Smith and Beard were not sufficiently similar to support a finding that the Town improperly denied pre-existing use status to Beard. Because the court failed to find that Beard established a cognizable claim under the Fourteenth Amendment, it did not reach his second argument on the issue of causation.

Beard v Town of Monroe, 2016 WL 7177758 (2nd Cir. CA 12/9/2016)

Plaintiff Bellevue–Ochre Point Neighborhood Association (BOPNA), opposed the Preservation Society of Newport County’s application for the construction of a Welcome Center near the entrance of the Newport mansion. BOPNA initiated a declaratory judgment action in the Superior Court, pursuant to the Uniform Declaratory Judgments Act (UDJA), seeking declarations that the Welcome Center was prohibited under the City of Newport Zoning Ordinance. This appeal arose from the Superior Court’s dismissal of its declaratory judgment action in favor of the society.

BOPNA first argued that the hearing justice was required to hear and decide its declaratory judgment action. Pursuant to the Newport Zoning Code, “it is the intent of this zoning code that all matters arising in connection with the enforcement or interpretation of this zoning code, shall be first presented to the zoning officer; and shall be presented to the zoning board of review only on appeal.” Here, the court found that had the BOPNA proceeded through with the administrative processes, the zoning board would not have had to make a decision regarding the legality of the Breakers’ pre-existing use, interpret the zoning ordinance’s provisions, review the society’s application, and ultimately determine whether to grant a special use permit. The court found that the Newport Zoning Code  granted the zoning board the authority to decide the issues raised in BOPNA’s complaint, and, therefore, the justice was not “obligated to hear and decide” its declaratory judgment action.

BOPNA next argued that exhausting administrative remedies would be futile because it did not have an available administrative remedy to exhaust. Despite plaintiff’s assertion that the zoning board lacked jurisdiction to determine the issues raised in its complaint, the hearing justice found that it had the requisite authority, thus the exception did not apply.  The court held that exhausting administrative remedies was not futile because, at the time of the hearing justice’s decision, the zoning board had the authority to consider the issues raised in BOPNA’s complaint. The zoning board had not yet rendered a decision on the proposed Welcome Center. Accordingly, the court affirmed the holding that the BOPNA failed to exhaust administrative remedies.

Bellevue–Ochre Point Neighborhood Association v. Preservation Society of Newport, 2017 WL 75446 (RI 1/9/2017)

Sanimax operated a recycling plant in the Village of DeForest, and obtains grease and used cooking oil from restaurants’ grease traps in the restaurants’ drains leading to the municipal sewer system. Sanimax does not pay for the grease, but the restaurants retain the cooking oil and sell it to Sanimax. Following a fire in 2014, Sanimax sought approval from the Village zoning administrator for reconstruction and expansion of its grease and oil processing operation, but was denied. Sanimax then filed an appeal of the zoning administrator’s denial of approvals with the Village of DeForest Board of Zoning Appeals, which affirmed the zoning administrator’s application of the “waste material … processing … as a principal use” language to Sanimax and the administrator’s corresponding denial of approvals sought by Sanimax. Sanimax then sought review in the circuit court, which vacated the Board’s decision and directed the Board to enter an order finding that Sanimax’s grease and oil processing was a permitted use in the M-2 district where Sanimax was located.
In this appeal, Sanimax argued that the plain meaning of “waste material … processing … as a principal use” did not cover its processing of grease and used cooking oil. The court analysed whether the words “waste material … processing …as a principal use” covered Sanimax’s processing of the grease and cooking oil from restaurants into an ingredient in animal feed. According to the Village, the relevant dictionary definitions of “waste” were “unused,” “unusable,” and “unwanted.” Under this definition, the court agreed with Sanimax’s central point that, like wood pulp and other unprocessed raw materials, the grease and oil here had current value because they were raw materials that could be profitably processed into a salable product. Additionally, the limitation on “waste material … processing” appeared under the “Utility/Government Related Uses” subheading. Thus, the court held that “waste” in this context referred to the sort of waste that did not interest a private business like Sanimax. The court therefore affirmed the circuit court’s holding in favor of Sanimax.
Sanimax USA, LLC  v Village of Deforest Board of Zoning Appeals,  2017 WL 129928 (WI App. 1/12/2017)

Appellants, landowners from New Haven, appealed from the trial court’s grant of summary judgment to defendants, two solar energy companies. The landowners filed suit after their neighbors leased property to the solar companies for the purpose of constructing commercial solar arrays. The landowners argued that the solar arrays constituted a private nuisance because they negatively affected the surrounding area’s rural aesthetic, causing properties in their vicinity to lose value.

The court found that an unattractive sight, without more, is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen’s ability to use and enjoy his or her neighboring land. Instead, the court determined that a “substantial interference” in a nuisance claim requires some showing that a plaintiff has suffered harm to “the actual present use of land” or to “interests in having the present use of the land unimpaired by changes in its physical condition.” Furthermore, unlike traditional bases for nuisance claims such as noise, light, vibration, odor, the propriety of one neighbor’s aesthetic preferences cannot be quantified because those preferences are inherently subjective.
The landowners’ second argument was that they should be entitled to recover because the solar panels allegedly caused their property value to fall. Here, however, landowners conceded at oral argument that they were not pursuing a claim that diminution in value in itself was sufficient to constitute a nuisance, but rather that the diminution in value should be considered only as a measure of damages for a nuisance. Accordingly, the court held that the trial court did not err as a matter of law when it granted the solar companies’ motions for summary judgment.
Myrick v. Peck Electric Company, 2017 WL 129041 (VT 1/13/2017)

In 2005, the claimant acquired title to an undeveloped parcel of real property in the Village and Town of Monroe, in the RR 1.5 ac zoning district, for which permissible uses included, “Single Family detached dwellings on lots of 3 or more acres in size.” In 2006, the claimant applied for approval to develop the property by subdividing it into three lots and then constructing a single-family dwelling on each lot, and included installation of a septic system for each of the three dwellings. The property was located within the Lake Mombasha watershed, and was therefore subject to watershed protection regulations promulgated by the New York State Department of Health (“DOH”) pursuant to article 11 of the Public Health Law. These watershed regulations prohibited the placement of a subsurface sewage disposal system within 300 feet of Lake Mombasha. The claimant’s subdivision application was denied by the Town Planning Board in November 2008 because the necessary septic systems would violate the watershed regulations. The landowner brought an action against the State, alleging that the application of the watershed regulations constituted a per se taking that required compensation under the Takings Clause. The Court of Claims denied landowner’s motion for summary judgment and granted summary judgment in favor of the State.
On appeal, the court found the claimant failed to establish that the subject property had suffered a complete elimination of value as a result of the watershed regulations. Here, the claimant acquired title to the subject parcel of land 85 years after the watershed regulations first went into effect. Additionally, the defendant submitted evidence that the claimant’s parcel was once joined with abutting lands that were split into separate parcels in 1989. Therefore, the court found that the right to install a septic system was never part of the “bundle of rights” the claimant acquired with title to the property and the claimant could not succeed on its takings claim. Accordingly, the court held the Court of Claims properly denied the claimant’s motion for summary judgment and dismissed the claim.
Monroe Equities, LLC v. State, 43 N.Y.S.3d 103 (2 Dept. 2016)

James and Melanie Nipper appealed an order permanently enjoining them from operating a skydiving business on their 290–acre farm in Walton County. In 2015, the County initiated a code enforcement action before the Walton County Code Enforcement Board (“CEB”). After holding a hearing, the CEB rejected the County’s position and concluded that the Nippers’ business did not violate the County’s zoning code, and Walton County did not appeal. After the Nippers won the zoning enforcement case initiated by Walton County before the county code enforcement board, the County sought and received a permanent injunction in circuit court to halt the business, and the Nippers appealed.

At the outset, the court noted that the parties fully debated the Nippers’ case and their interpretations of the zoning code related to the commercial skydiving operation at the Nippers’ property the 2015 CEB hearing. The County failed to prove the alleged zoning violation before the CEB, which decided that the Nippers’ operation didn’t violate the code. As such, the Nippers’ victory before the CEB undermined the County’s claim of a “clear legal right” to enjoin the Nippers’ business. Moreover, the text of the zoning code did not clearly prohibit skydiving. Instead, Walton County Comprehensive Plan Policy L–1.4.1(B)5 allowed the commercial activities on designated Large Scale Agricultural areas of Walton County like the Nippers’ farm, and was silent as to skydiving. The court therefore reversed, as the County did not show a clear legal right to the injunctive relief granted by the circuit court.

Nipper v. Walton County, Florida, 2017 WL 163693 (FL App. 1/17/2017)


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