Plaintiff Step by Step, Inc. (“SBS” or “plaintiff”), a New York not-for-profit corporation that provides outpatient mental health support services, filed an action against defendant City of Ogdensburg, for claims pursuant to the Fair Housing Act, 42 U.S.C. § 3601, et seq. (the “FHA”) as well as the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”) alleging that defendant’s refusal to approve an application for a Planned Development District (“PDD”), which would authorize plaintiff to establish a housing unit for individuals with mental illnesses, constituted unlawful discrimination on the basis of plaintiff’s clients’ mental disabilities.

On May 14, 2015, the County Planning Board considered SBS’s application and voted to recommend disapproval. The City’s Planning Board reached a similarly unfavorable conclusion four days later, voting 5–1 on May 18 to also recommend disapproval of plaintiff’s application. However, on May 27, 2015, the Chairman of the County Planning Board requested that the City Council resubmit SBS’s application so that it could be reconsidered. According to this request, the County Planning Board had incorrectly believed the Site could be considered under the then-draft Adaptive Reuse District (“ARD”) law, which modified the City’s zoning code to create a new district for parcels generally associated with public and quasi-public use, such as former schools and churches, and provided guidelines and a process for their redevelopment. Nevertheless, the City Council held a special meeting, where it voted 5–1 against plaintiff’s PDD application without the benefit of any reconsideration by the County Planning Board.

The City first contended that SBS failed to establish standing because plaintiff failed to allege any facts to support the conclusion that the prospective users or residents of the Site qualified for protection under the relevant statutes. The court noted that federal courts have held that a person who is not himself handicapped, but who is prevented from providing housing for handicapped persons by a municipality’s discriminatory acts, has standing to sue under the FHA. Here, SBS’s complaint alleged that its PDD application was improperly denied based upon discrimination directed towards the mental illnesses of its clients, thus constituting an “injury in fact” that is “fairly traceable” to defendant’s actions. Additionally the court found SBS had organizational standing to bring this action on behalf of its clients.

In analyzing the FHA and ADA claims, the court found the complaint sufficiently alleged that the proposed residents of the Site had a “handicap” under the FHA and “disability” under the ADA. Furthermore, while SBS’s complaint did not delineate the exact amount of time it is seeking to provide housing for its mentally ill clients, the complaint clearly contemplated providing housing in order to divert these individuals from hospitals or homelessness. Moreover, by affirmatively choosing to omit parcels greater than two acres, such as the Site, from the ARD law, its excludes such applications from the “better protection” for which it was originally designed. These inconsistencies further undercut the rationale for seeking to delay plaintiff’s application at the April 13, 2015 meeting. Finally, the court found that while obtaining public comment on a matter of public concern is commendable, the City Council may not cede its decision making authority to the public, especially when a significant portion of public opposition was based on improper biases towards SBS’s clients. As a result, the court held plaintiff established a substantial likelihood of success on the merits with respect to their discriminatory intent claim. Conversely, the court found that SBS made no effort to make the necessary quantitative or qualitative comparison to support its disparate impact claim and simply relied on the argument that if they could not utilize the Site for supportive housing, there must have been a disparate impact.

Lastly, the court found an irreparable harm due to the City’s hindering SBS’s attempts to relocate to the Site, a location that permits it to provide supportive housing to at risk mentally ill individuals and would better accommodate the programs SBS currently offers. In so doing, the court held that the City was preventing SBS from housing and serving its clients and diminishing the quality and variety of its programs, thereby undermining its purpose. A monetary award would not adequately compensate plaintiff for these injuries. Accordingly, Plaintiff’s motion for a preliminary injunction was granted.

Step by Step, Inc. v City of Ogdensburg, 2016 WL 1319081 (NDNY 4/5/2016)


TWL Realty, LLC, is the owner of land zoned Commercial Highway (CH) and appellee, Keystone Correctional Services, Inc., operates a privately owned community work-release facility building on that land under a contract with the Commonwealth’s Department of Corrections. Sections 195–10 and 195–103.T(8) of the Township Ordinance defines “Work-release facility” as: A facility providing housing and supervision for nonviolent criminals who are within six months of completion of their term or release and who have the opportunity to work, go to school, or take job training. Section 195–103.T of the Ordinance allows work-release facilities in the CH zoning district and limits the number of residents to 150. Section 195–103.T(8) specifies that “only nonviolent crime detainee residents shall be permitted to reside in the premises.” The Ordinance did not define “nonviolent criminals” or “nonviolent crime detainee.”

The Township issued Keystone a violation based on two residents who were convicted of Tier # 3 sexual offenses and were listed on the Megan’s Law Registry. The Township considered them to be violent offenders and their residence at Keystone’s facility violated Sections 195–10 and 195–103.T(8). The Department removed the offenders from Keystone’s facility. Keystone appealed challenging the zoning administrator’s interpretation of Sections 195–10 and 195–103.T(8) or, in the alternative, challenging the substantive validity of the sections. The ZHB denied Keystone’s appeal concluding that the zoning administrator interpreted “violent criminal” as a person who committed a “crime of violence.” Further, the interpretation of “nonviolent criminal” was consistent with Section 195–103.T(8)’s “nonviolent detainee,” which focused on the objective nature of the crime and not subjective speculation as to whether an offender poses a risk to the public safety at the time of parole. The ZHB held that the Ordinance sections were not in conflict with the Prisons and Parole Code or the Sentencing Code, and therefore, not subject to conflict preemption. The Board determined that the Ordinance lacked an exclusionary impact because it permitted work-release facilities and permitted violent criminals to reside in detention centers within the Township. Lastly, the prohibition against violent criminals residing in work-release facilities was like a limitation on the number of residents permitted under Section 195–103.T(4), which the Commonwealth Court in TWL Realty, LLC v. Board of Supervisors of West Hanover Township (Pa.Cmwlth. 2012 WL 8666779) held to be a valid exercise of zoning powers. In TWL Realty the Court upheld the validity of Section 195–103.(T)(4) of the Ordinance which limited the number of offenders who could be housed at Keystone’s facility to 150. The Ordinance would have been invalid if it entirely excluded work-release facilities or limited the number of work-release facilities in the Township or a particular zoning district.

Keystone appealed to the Court of Common Pleas, which reversed the decision of the ZHB, concluding that the Ordinance sections were preempted by the Parole and the Sentencing Codes of Pennsylvania. When the Parole Board or a sentencing court determines that a specific work-release facility is an appropriate residence for an offender, in accordance with state law and the offender’s reentry plan, local zoning ordinances may not contravene that determination. The ordinances restriction interfered with the statewide statutory scheme developed to achieve the legislature’s policy goal of a balance between public safety and rehabilitation.

On appeal the Commonwealth Court affirmed stating that under Pennsylvania law, conflict preemption, any local ordinance that contradicts, contravenes, or is inconsistent with a state statute is invalid. For conflict preemption to be applicable, the conflict between the statute and the ordinance must be irreconcilable. Further, the local ordinance in question must be considered in light of the objectives of the General Assembly and the purposes of the relevant statute, and the local ordinance may not stand as an obstacle to the execution of those objectives and purposes. Holt’s Cigar Co.; Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 862–63 (2009). However, a municipality “may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.” Holt’s Cigar Co., 10 A.3d at 907.

In Fross, Allegheny County amended its county code to add a new chapter which prohibited offenders listed on the Megan’s Law registry from living within 2500 feet of a child care facility, community center, public park or recreational facility or school. These sex offenders would have been prohibited from living in the vast majority of the habitable and developed areas of Allegheny County.

The Supreme Court concluded that the ordinance failed to acknowledge and effectively subverted the goals of the General Assembly. The General Assembly expressly listed among its purposes for adopting the Sentencing and Parole Codes the rehabilitation, reintegration, and diversion from prison of appropriate offenders. The best method for offering parole was to provide released offenders with familiar and stable environments that promote family and community ties, and provide access to employment, counseling and supervision. Additionally, the ordinance failed to take into account the General Assembly’s policy determination to facilitate the diversion of offenders from prison and the Commonwealth’s interest in the timely and effective administration of probation and parole. The added level of difficulty in devising adequate plans for release in Allegheny County could result in either probation or parole being granted under conditions less likely to maximize rehabilitation and reintegration potential, additional, and significant delays in processing the release of eligible offenders, or a greater number of otherwise eligible offenders simply being denied parole.

The Sentencing and Parole Codes demonstrate that when the Commonwealth places an offender in a particular work-release program, the Commonwealth has determined that the offender’s placement is consistent with both the public’s safety and the needs of the offender to reintegrate into society. The Ordinance’s ban upon the housing of offenders with violent criminal histories was in conflict with the Commonwealth’s determination that an offender is suitable for placement in the work-release facility; a determination that includes a conclusion that public safety would not be jeopardized by the offender. If the Ordinance was allowed to stand, other municipalities would be able to enact similar ordinances that contained more restrictive standards than the Sentencing and Parole Codes, thus jeopardizing the Commonwealth’s parole scheme as embodied by the Sentencing and Parole Codes.

TWL Realty v West Hanover Township Zoning Hearing Board, 132 A.3d 533 (Pa Cmwlth 1/5/2016)

Plaintiffs William J. Peterson and Patricia Peterson operated a “small scale recycling business” at their home, which caused tension with City of Grand Rapids officials, Eric Jordan and Carolyn Forsythe, who were responsible for enforcing the City’s Zoning Code. Eventually, as a result of Plaintiffs’ recycling operation, the City issued a housing violation ticket. Plaintiffs state that the ticket was appealed to the Board of Housing Appeals, and a hearing was set for July 2012. Prior to the hearing, Defendants Jordan and Forsythe obtained a search warrant at Plaintiffs’ residence to verify the existence of alleged circumstances jeopardizing the public health and safety, and to abate the conditions. The warrant was executed when “a large number of armed police officers confronted and restrained plaintiffs…at their home” and “prevented them from protecting their property from collection in trucks and removal by Defendant City and its contractor, Pit Crew Company.” The property removed from Plaintiffs’ residence included a Ford truck, valuable scrap metal, and a set of drawers containing tools and other valuable property. Plaintiffs stated that some of the property that was seized was taken to the dump, while some of it was sold by Defendants, whom Plaintiffs believe converted the materials for personal use.

Defendants argued that the Court lacks jurisdiction to hear Plaintiffs’ claims raised under the Fifth Amendment’s Takings Clause because Plaintiffs failed to pursue a remedy in state court, and that the Court lacked jurisdiction over Plaintiffs’ exclusionary zoning claims because Plaintiffs did not seek rezoning or apply for a land use variance. Accordingly, the court held that Plaintiffs “deprived the township of any opportunity to consider whether its ordinance failed to accommodate a lawful use for which a demonstrated need existed,” and their claim, therefore, was not ripe for judicial review. This failure to seek an adequate state-court remedy, likewise led the court to hold that Plaintiff had not met his burden of proving that the court possessed subject matter jurisdiction over his just-compensation takings claim.

Peterson v City of Grand Rapids, 2016 WL 1604600 (WD MI 4/22/2016)

The Gulfport City Council approved the City of Gulfport’s application to use the historic Grass Lawn Home as a recreation center upon its reconstruction after Hurricane Katrina. Peter and Fay Barrett appealed the City Council’s decision to the Harrison County Circuit Court, arguing that Grass Lawn was zoned exclusively for residential use and that the City had abandoned any nonconforming use on the property in question. The circuit court dismissed the Barretts’ claim as moot, and the Barretts appealed in this case.

The court noted that a case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant. Here, the circuit court was limited to determining whether the City Council, based on the evidence contained in the bill of exceptions, had erred in approving the City’s application to use Grass Lawn as a recreation center. Accordingly, any ruling with respect to the City’s application would be of no benefit to the Barretts or detriment to the City, as the application was no longer valid. Additionally, any procedural defects in the Planning Commission’s approval of the application were cured by the subsequent withdrawal of the application.

The Barretts next argued that their appeal was excepted from the mootness doctrine because their claims involved matters of the public interest and were capable of repetition yet evading review. The capable of repetition yet evading review exception applies when: “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and there was a reasonable expectation that the same complaining party would be subject to the same action again.”  Here, the record demonstrated that neither the Barretts nor any other neighboring landowners to Grass Lawn had a reasonable expectation that Grass Lawn would be used as a recreation center in the future since the City withdrew its application to use Grass Lawn as a recreation center and admitted that Grass Lawn’s current design would not be conducive to such use.

For the aforementioned reasons, the court found that the circuit court did not err in finding that the Barretts’ appeal was rendered moot by the City’s withdrawal of its application to use Grass Lawn as a recreation center.

Barrett v City of Gulfport, 2016 WL 1593353 (MS 4/21/2016)

Defendant, Luna Crest Inc. opened a medical marijuana dispensary within the city limits of plaintiff, City of Palm Springs. The Palm Springs Municipal Code requires a permit to operate a marijuana dispensary in the City, which Luna did not obtain. At trial court, Luna contended that the City ordinance requiring a permit is preempted by federal law and, therefore, invalid and unenforceable. This appeal arose from the trial court’s order denying Luna’s motion for a preliminary injunction.

At the outset, the court noted there was standing since Luna opened a medical marijuana dispensary and was forced to shut it down when the City brought suit and obtained an injunction enforcing the City’s permit requirement: thus, an actual injury had occurred. Luna’s primary argument was that the City’s regulatory program for medical marijuana dispensaries was preempted by federal law – arguing that by not just decriminalizing, but affirmatively permitting the operation of medical marijuana dispensaries, the City violated federal drug laws. With regard to conflict preemption, Luna failed to provide any specific provision of the City’s regulation of medical marijuana dispensaries that was in “positive conflict” with federal drug laws. Furthermore, the City’s permitting requirements did not require anything that the federal Controlled Substances Act forbid. The court likewise found that a strong local regulatory regime governing medical marijuana related conduct would tend to prevent the transformation of purported nonprofit medical marijuana dispensaries into “profiteering enterprises” that could contribute to recreational drug abuse and drug trafficking. Accordingly, Luna’s obstacle preemption argument also failed.

The court therefore held that the trial court properly denied Luna’s request for an injunction against the enforcement of the Palm Springs Municipal Code.

City of Palm Springs v Luna Crest, Inc., 200 Cal. Rptr. 3d 128 (3/17/2016)

Pawn 1st, LLC appealed from the superior court’s judgment dismissing its complaint for special action review of a decision by the Board of Adjustment of the City of Phoenix and its members, granting a variance to Pawn, doing business as Central Pawn. Specifically, Jachimek challenged a decision of zoning board approving a competing business’s application for zoning variance from an ordinance requiring the exterior walls of a pawn shop to be located at least 500 feet from a residential district. The superior court denied Pawn’s requested relief, finding that the variance granted to Jachimek was an area variance and not a use variance.

Pawn first argued that Jachimek’s request for a variance was not an “area” variance as found by the superior court, but an unauthorized “use” variance because it allowed the Property to be developed for an impermissible use; namely, the operation of a pawn shop within 500 feet of a parcel zoned residential. Here, the Board’s decision to grant the variance to operate a pawn shop within 500 feet of a residential district in a C–3 commercial district did not allow a use not permitted in the zoning classification, irrespective of the 500–foot distance requirement. The court therefore found that the request for a variance was an “area” variance.

Pawn next argued the Board exceeded its jurisdiction and authority in failing to find the necessary criteria required by statute and ordinance before approving the variance. The court found that the discontinuation of the nonconforming use and the effects of the eminent domain action constituted “special circumstances” warranting a variance from the distance limitation applicable to pawn shops. The eminent domain proceedings that reduced the Property’s size, parking, and setback deprived the property of privileges enjoyed by other property of the same classification in the same zoning district” as required by A.R.S. § 9–462.06.G.2 and did not apply to other properties in the district  as required by § 307.A.9.a of the Zoning Ordinance. However, any special circumstances here were created by Jachimek and/or the Property owner by selecting this particular property to use as a pawn shop, in violation of the prohibition against self-imposition. Accordingly, the court found the Board exceeded its statutory jurisdiction and authority in granting the application for a variance.

Pawn 1st, LLC v City of Phoenix, 2016 WL 1427649 (AZ App. 4/12/2016)

Plaintiff, Pirate’s Cove, brought a second amended complaint containing counts for denial of equal protection under the Fifth and Fourteenth Amendments (Count III), temporary taking as an alternative to Count IX (Count IV), declaratory judgment (Count VI), and inverse condemnation (Count IX). The County sought to dismiss with prejudice Plaintiff’s claims for denial of equal protection (Count III), temporary taking (Count IV), and inverse condemnation (Count IX).

Plaintiff first asserted an equal protection claim based on the alleged differential treatment of Pirate’s Cove from that of comparators Margueritagrill and Riverside Resort. Specifically, Plaintiff alleged that Pirate’s Cove was subjected to rigorous enforcement of County rules, ordinances, regulations, and policies, while the comparators were not subjected to similarly rigorous enforcement. While the additional facts demonstrated that these properties were similar in some respects, Plaintiff still failed to demonstrate that the properties were “prima facie identical in all relevant respects.” Thus, Plaintiff’s equal protection claim was dismissed.

Plaintiff also asserted a claim for inverse condemnation under Florida law for the alleged taking of his property rights. Plaintiff argued that the County intentionally delayed the development of his project in several respects to such an extent that it amounted to a temporary taking of his property to which he was entitled to just compensation. However, the court found that the Plaintiff had not demonstrated a final decision by the County because no actual decision was ever made by the County. Because there was no decision made by the County adverse to Plaintiff, and Plaintiff’s complaints merely went to the delays caused by the County’s conduct, Plaintiff had not satisfied the ripeness requirement by demonstrating that there was a final decision. Additionally, as required to establish extraordinary delay, Plaintiff neither alleged nor demonstrated that the County acted in bad faith. The court therefore granted the motion to dismiss Plaintiff’s second amended complaint.

Decker v. Citrus County, 2016 WL 1627109 (MD FL 4/25/2016)

Posted by: Patricia Salkin | May 3, 2016

IA Appeals Court Upholds Board’s Rezoning Denial

The Dubuque County Board of Supervisors appealed from the district court’s ruling that it acted illegally in denying Rinikers’ application to have part of their nine acres rezoned from A–1 (agricultural) to A–2 (agricultural residential). The Rinikers sought a rezoning of their property A–1 property to A–2 so that they could separate from the nine acres 1.08 acres with an existing house for the purpose of selling the rezoned property to their son, and to construct a new residence on the remaining approximately eight acres. Following a public hearing and despite a recommendation of the planning commission to approve the request, the Board of Supervisors denied the rezoning request.

The Appeals Court noted that when the Rinikers purchased the property they were under notice that a new residence could not be built on the land without tearing the existing residence down. “A property owner has no absolute right to have property rezoned, the Board properly relied upon one of the criteria to deny rezoning, and the district court erred in sustaining the writ of certiorari.” The appeals court reversed the decision below and upheld the board’s denial.

Riniker v. Dubuque County Bd. of Supervisors, 2016 WL 1682960 (IA App. 5/2/2016)

Petitioners/plaintiffs, Soldatenko, et al., are the owners of property in the Village of Scarsdale. In May 2012, the plaintiffs made a “Request for Interpretation” to the Village Building Inspector, seeking a ruling that the lots were buildable as of right. The plaintiffs referred to the lots collectively as “Lot 117,” a designation from a 1926 subdivision map that was filed with the Village. The plaintiffs acknowledged that the lot was nonconforming under the current Zoning Law of the Village because it lacked the required street frontage, but they argued that the lot qualified as a buildable lot under the criteria of certain grandfathering provisions of the Zoning Law. The Village Building Inspector held that the subject lot was an existing nonconforming unimproved lot that lacked the necessary frontage required. The plaintiffs appealed his determination to the Village Board of Appeals. The Village Board of Appeals affirmed relying on Village Law § 7–736, which provided that “no permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan.” The plaintiffs thereafter commenced a proceeding to annul the determination. The plaintiffs acknowledged that a 1966 amendment to the official Village map resulted in “a complete loss of street frontage” for the subject lot, rendering it a nonconforming lot. But, they maintained that the lot could be developed as of right pursuant to the grandfathering provisions. The lower court agreed to annul because the Village Board’s interpretation of Village Law § 7–736 was “unreasonable.” Although the statute created “a potential obstacle to the issuance of a building permit,” it also provided for the possibility of an exception or a variance.

The appellate court stated that contrary to the determination of the lower court, the Village Board’s interpretation of Village Law § 7–736 was not unreasonable. Although an applicant can seek a variance from the statute’s requirements, the issue before the Village Board was whether the plaintiffs were entitled to develop the property as of right. The Village Board properly concluded that they could not because the lot failed to meet the access requirements of Village Law § 7–736. Consequently, the court should have confirmed the Village Board’s determination.

Soldatenko v Village of Scarsdale Zoning Bd. of Appeals, 2016 WL 1576925 (NYAD 2 Dept. 4/20/2016)


Petitioner Applebaum commenced a proceeding to review a determination of the respondent Village of Great Neck Board of Appeals granting an application of the respondent Old Mill II, LLC for variances and site plan approval. The trial court denied the petition and Petitioner appealed.

The appellate court affirmed and held that the board was entitled to rely on letters it obtained from municipal officials in making the zoning determination. “A determination of a zoning board should be sustained upon judicial review if it is not illegal, has a rational basis, and is not arbitrary and capricious” The determination to grant the application had a rational basis and was not arbitrary and capricious. There was no merit to the petitioner’s claim that the Board, in rendering its determination, improperly relied on letters it obtained from the Chief of the Great Neck Alert Fire Company and the Village of Great Neck Building Department without affording her an opportunity to respond, as the letters, which did not contain any new factual allegations, were prepared by municipal officials without a vested interest in the decision.

Applebaum v Village of Great Neck Bd. of Appeals, 2016 WL 1442271 (NYAD 2 Dept. 4/13/2016)


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