Plaintiff Da Vinci Investment Limited Partnership sued the City of Arlington, Texas, and five city council members in their official and individual capacities. Da Vinci claimed violations of its substantive due process and equal protection rights under 42 U.S.C. § 1983, and also claimed that an unlawful taking occurred under the Texas Constitution. The individual council members filed a motion for judgment on the pleadings on the Section 1983 individual capacity claims on the basis of absolute and qualified immunity. The district court denied the motion and this interlocutory appeal followed.

The council members argued that they were entitled to absolute immunity because the denial of the development plan application was a legislative activity, and that the process for obtaining approval of this development plan application was a zoning event under the City’s code provisions and zoning is a legislative activity. Here, Da Vinci’s development plan was based on specific, particular facts and affected Da Vinci’s development alone. Therefore, the denial of the plan did not involve the determination of a policy, but applied general rules to one specific piece of property. Thus, the court concluded that the council members’ denial of Da Vinci’s development plan was not a legislative decision, and there was no absolute immunity for the council members’ actions. Absolute qualified immunity was also shown because private communications occurred between city council members and citizens, so the evidence-gathering and decision-making process was not judicial in nature. Moreover, there was no indication that the significant safeguards that exist in judicial proceedings applied to the council meeting, and there were no allegations that anyone at the hearing was put under oath or that witnesses were called.

Da Vinci next argued that the council members had no discretion to deny its development plan because it had met all the guidelines set forth in the ordinances. However, the court found no such “explicitly mandatory language” in the ordinances requiring city officials to approve a development plan, the city council had discretion to grant or deny the benefit. Thus, Da Vinci did not have a protected property right in the approval of its development plan, and, therefore, the council members were entitled to qualified immunity on Da Vinci’s substantive due process claim.

As to the Equal Protection claim, Da Vinci pleaded that it was treated differently than the “Cooper Project,” a development plan for a car wash facility that was approved by the city council less than two years before Da Vinci’s application. Because the council members failed in their initial brief to make any argument on Da Vinci’s equal protection claim, the district court’s denial of the council members’ motion for judgment on the pleadings on this claim was affirmed.

Da Vinci v Parker, 2015 WL 4737408 (5th Cir CA 8/11/2015)

Land developers brought an action against the Town to secure interest on impact fees that the town charged pursuant to ordinance, which the town reimbursed with a letter indicating that the refund, without interest, was consideration for waiver of claims under ordinance. The ordinance in question was the Adequate Public Facilities Ordinance (“APFO”) requiring land developers to pay impact fees as a condition of obtaining necessary permits for development. The Superior Court, denied the town’s motion to dismiss, granted developers’ motion for judgment on the pleadings, and awarded developers interest and the Town appealed.

Defendant first argued that the APFO is a valid ordinance pursuant to N.C. Gen.Stat. § 160A–372 (2013), and that consequently the trial court erred in entering judgment in favor of plaintiffs. Here, the Town’s APFO stated that its purpose is to “ensure that public facilities needed to support new residential development meet or exceed the level of service standards established herein.” However, Contrary to defendant’s argument, there were no provisions in section 160A–372 authorizing the Town to make its development approval contingent on securing funds to subsidize its law enforcement, fire protection, and parks, which was the stated purpose of the APFO.

Next, the defendant contended that a claimant is not entitled to recover interest pursuant to N.C. Gen.Stat. § 160A–363(e) when the municipality has already voluntarily refunded the illegally extracted fee. The court disagreed, finding that the statute’s plain language neither prevented a claim for interest when the city returns the principal amount to a claimant nor barred a claim for interest that arose from a separate civil action. Finally defendant asserted that the plaintiffs’ acceptance of $54,284, coupled with the initialing of defendant’s letter, established an accord and satisfaction and released defendant from any requirement to pay outstanding interest. Here, the contract terms, indicated in the body of the letter, referenced a “mutual release … of all obligations and liabilities under the [APFO].” While, the terms of the contract clearly denoted a waiver of all obligations arising out of the APFO to which both parties agreed, the letter contained no reference to a waiver of any obligations or liabilities that might arise vis-à-vis defendant regarding interest payments allowed under N.C. Gen.Stat. § 160A–363(e). Accordingly, the defendant’s argument that plaintiffs were barred from seeking interest payments under the accord and satisfaction doctrine was without merit. The judgment denying the town’s motion to dismiss was therefore affirmed.

China Grove 152, LLC v Town of China Grove, 773 S.E. 2d 566 (NC App. 7/7/2015)

The opinion can be accessed at:

In November 2012, Accurate Transport submitted a preliminary site plan application to the Derry Planning Board for approval to operate a “Dumpster Depot” business on property owned by Ashleigh Drive. Prior to the Planning Board’s review, the Technical Review Committee held a meeting approving the proposed plan, and the petitioners filed a formal site plan application with the Planning Board. At the August 21 meeting, the Planning Board voted to approve the petitioner’s application subject to several conditions, some of which differed from the conditions proposed on June 19. An abutter to the subject property, John T. O’Connor, filed an application for administrative appeal with the ZBA. The ZBA denied the appeal based upon lack of jurisdiction because it deemed the appeal untimely. The ZBA decided that, because the appeal also contained timely allegations relating to the Planning Board’s interpretation and application of the zoning ordinance in its August 21 decision, it would “convert” O’Connor’s appeal to an appeal of that decision, and construe the appeal as timely. The respondent, the Town of Derry, appealed a decision of the Superior Court granting the motion for summary judgment filed by the petitioners, Accurate Transport, Inc. and 41 Ashleigh Drive, LLC, on the basis that an abutter’s appeal to the Derry Zoning Board of Adjustment was untimely.

The petitioners argued that the ZBA “acted unlawfully in ‘converting’ the appeal” to an appeal of the Planning Board’s August 21 decision because no statute granted the ZBA the ability to so act. However, the court found the proper enforcement of zoning ordinances was specifically within the ZBA’s jurisdiction and the ZBA had authority to address the zoning issues raised in O’Connor’s appeal. Given the ZBA’s broad authority and the content of O’Connor’s appeal, the court disagreed that the ZBA erred by finding that his appeal contained allegations relating to the Planning Board’s August 21 decision and by then treating the appeal as an appeal of that decision. The Court also found that the decision was timely because the appeal period began to run on the date of the planning board’s conditional approval of the site plan application, since on that date the planning board decided the zoning issue. Finally, the court held that the ZBA did not exceed its authority considering whether the use was potentially permitted under any other zoning classification. Accordingly, the Superior Court’s decision in favor of the petitioners was reversed.

Accurate Transport, Inc. v Town of Derry, 2015 WL 4734916 (NH 8/11/2015)

The opinion can be accessed at:

Parker Avenue, L.P. purchased and in the City of Philadelphia zoned for residential development for the purpose of building 48 single-family, semi-detached. A portion of the applicable street was legally-open and sat upon City owned land. The City had already improved the legally-open portion of the street, but the portion that ran through the subject property had not been legally opened and was an unimproved trail. Parker Avenue sought the approval of two separate ordinances to permit the paving the City-owned street and to create a cul-de-sac which were met with community opposition. In May 2013 Parker Avenue filed a petition arguing that since it had been deprived of the Property’s beneficial use and enjoyment, it suffered a de facto condemnation of the entire Property, and sought appointment of a Board of Viewers to determine its just compensation and special damages. The trial court granted Parker Avenue’s Petition. The City appealed.

On appeal the Court reversed. hree issues were before the Court: (1) whether the trial court erred in holding that City Council’s inherently discretionary inaction in not enacting legislation gave rise to a de facto taking; (2) whether the trial court erred in finding Parker Avenue was substantially deprived of the beneficial use and enjoyment of its property; and (3) whether the trial court erred in finding a de facto taking occurred two weeks after the proposed legislation was introduced by a City Council member.

The Court agreed with the City that no duty exists to compel City Council to enact legislation, an inherently discretionary function that requires weighing competing interests of multiple stakeholders and the best interests of Philadelphia at-large, City Council’s inaction cannot support a de facto taking claim. The Court noted that to
prove a de facto taking, the property owner must establish exceptional circumstances that substantially deprived him of the beneficial use and enjoyment of his property. The Court also noted that Parker Avenue purchased the Property knowing it was landlocked for the purposes of such development, as no paved, legally-open, Philadelphia Zoning Code-compliant street provided access for such a use. In addition, he project sponsors met with local residents to discuss its residential subdivision development proposal more than six months before purchasing the Property, and was on notice at that time that the community was opposed to the proposed development. Ridge Park (and its predecessor organization) had for decades opposed development. Further, the Court noted that the risk that the Property may not be subject to development was reflected in the Property’s net purchase price of $150,000.00 for 7.62 acres, on which Parker Avenue intended to construct 48 single-family homes. When compared with the market value of the sliver of Parker Avenue’s lot with street access, which Parker Avenue sold in May 2006 for $350,000.00 (for two-thirds of an acre) for the construction of five single-family homes, it was clear that Parker Avenue’s net purchase price fully incorporated the risk that the 7.62 acres would never be developed. Thus, nothing was “taken” from Parker Avenue that it had or legitimately expected to get.

Next, the City argued that there was no evidence to support the conclusion that a residential subdivision was the Property’s highest and best use. The Court concluded that although Parker Avenue paid $500,000.00 for the entire 8.3 acres, it received $350,000.00 for the .68 acres it sold in 2006. Thus, comparatively, $150,000.00 for 7.62 acres was not “substantial.” Parker Avenue was aware that this was a risky venture given the necessary approvals needed and the community resistance. Moreover, even if the ordinances had passed, Parker Avenue still needed the Board of Surveyors’ endorsement which required a publicly-advertised hearing at which public testimony was taken, and the Planning Commission’s final plat approval. Given, the community’s resistance, the Board of Surveyors’ endorsement was speculative. As a result, “Parker Avenue had not met its burden of proof showing that the alleged detriment, underlying the claim of de facto taking, was the direct and necessary consequence of the City’s failure to pass a routine paving ordinance.”

Parker Ave., L.P. v City of Philadelphia, 2015 WL 4597601(Pa Commw Ct 7/30/2015)

The opinion can be accessed at:

Opponents of wind-powered energy facility brought suit against county seeking declaration and injunctive relief to stop construction of the wind farms, alleging that county violated Growth Management Act (GMA) and Planning Enabling Act (PEA). This case involved whether the plaintiffs’ claims, were properly dismissed as time barred. The trial court granted the defendant-county’s summary judgment motion on each of the plaintiffs’ claims, but the Court of Appeals reversed on the GMA and PEA claims, reasoning that a genuine issue of fact remained as to whether Skamania County actually completed periodic review on August 2, 2005, which Skamania County argues triggered the clock for the GMA claim; and the date on which the inconsistency, if any, arose between the unmapped classification and the conservancy designation, which would have triggered the clock for the PEA claim. The Court of Appeals remanded for further factual proceedings to address the time bar issue.

The County argued that the Resolution triggered SOSA’s GMA claim because the Resolution satisfied the County’s obligation to conduct periodic review and if SOSA disagreed, they had 60 days to appeal that decision. The County also argued that the Court of Appeals erroneously construed the moratoria as “tolling” the appeal period. The court determined that the language contained in the Resolution indicated that its enactment did not constitute any part of the periodic review process. Instead, the court found SOSA’s action against the County is more properly characterized as a “failure to act” claim, which was not necessarily subject to the same 60–day appeal period. Since the petition related to the failure of a state agency, city or county to take an action by a deadline specified in the Growth Management Act or the Shoreline Management Act, the court held it may have been brought at any time after the deadline for action has passed.

Unlike its GMA claim, SOSA’s PEA claim could not be characterized as a “failure to act” claim. The court determined that only final decisions were appealable, and the unique facts presented in this case supported the conclusion that the “unmapped” areas were not a final, appealable regulation until 2012. This was because the County unequivocally stated that it needed time to update the unmapped, “free-for-all” areas to attune them with the newly adopted 2007 Plan’s conservancy designations; therefore, there was no final county action to appeal during this period. From 2007 to 2012, these areas effectively lacked any classification, and there was nothing for SOSA to challenge until the County made its final decision. Accordingly, the court held that SOSA’s September 2012 PEA claim is was timely.

Save our Scenic Area v Skamania County, 352 P. 3d 177 (WA 6/11/2015)

In a proceeding to review a determination by the zoning board of appeals that essentially reversed its prior determination denying an application for area variances, the appellate court found that the subsequent approval with certain conditions was rational and not arbitrary or capricious.

Gottlieb v Board of Appeals of Incorporated Village of Lawrence, 2015 WL 4634590 (NYAD 2 Dept. 8/5/2015)

Posted by: Patricia Salkin | August 15, 2015

NY Appellate Court Affirms Decision to Grant Area Variances

The Zoning Board of Appeals of the Incorporated Village of Lawrence reversed its prior determination and granted, with stated conditions, an application by the respondent 284–285 Central Owners Corp. for certain area variances. The petitioners appealed contending that the determination of the Board of Appeals to reverse its first determination denying the subject application for certain area variances and grant that application was irrational and arbitrary and capricious. The court found, however, that the Board properly engaged in the required balancing test for area variance determinations and considered the relevant statutory factors. Accordingly, the court found that the court below properly denied the petition and dismissed the proceeding.

Gottlieb v Incorporated Village of Lawrence, 2015 WL 4634590 (NYAD 2 Dept. 8/5/2015)

The Zoning Board of Adjustment of Paramus, New Jersey appealed from the District Court’s grant of summary judgment to Appellees Sprint, T–Mobile and Omnipoint Communications in their challenge to the ZBA’s denial of a requested variance to a city zoning ordinance that prohibited the construction of monopoles to fill gaps in wireless service. They proposed construction of a faux-tree “monopole” in one of two sites after investigating possible locations for its placement. Paramus had an ordinance which, among other things, prohibited the construction of cellular monopoles, defined as “an antenna structure consisting of a single pole in commercial and residential zones.”

Plaintiffs, the Carriers, are the proposed lessees of two properties located within the Borough of Paramus, New Jersey: the “Ambulance Corps” site and the “Church of the Nazarene” site. Sprint filed its application for zoning approval to construct a 125–foot faux-tree wireless communications facility, known as a “monopole,” at the Ambulance Corps site in order to fill significant gaps in their wireless coverage; however Paramus subsequently enacted a new telecommunications ordinance which, among other things, specifically prohibited cellular monopoles (defined as “an antenna structure consisting of a single pole”) in commercial and residential zones. The Board denied the motion for a variance, finding that “the substantial height of the proposed monopole and its placement within a residential neighborhood would have a detrimental visual effect on the surrounding properties,” and that the Carriers “failed to investigate other less intrusive ways of providing coverage” and “did not put forth a good faith effort to explore and investigate alternative technology to provide coverage.” The court found that the Board’s zoning denial constituted an effective prohibition of wireless service, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), and then considered whether Plaintiffs adequately considered technological alternatives to the monopole, i.e. the feasibility of a DAS as a less intrusive alternative.

The District Court found that a DAS was not a feasible alternative because it will not offer comparable wireless service when measured against the coverage that can be provided by the proposed macro facility. Additionally, the ZBA’s reliance on the visual impact of the monopole does not represent “substantial evidence” to support the denial of the variance because, as Judge McNulty noted, there was “no clear aesthetic winner” between a DAS and the proposed monopole. The DAS also had significant reliability concerns associated with its deployment on utility poles, its small coverage areas per node, and its vulnerability to disruption. Accordingly the District Court held that the Board’s denial of Plaintiffs’ application to construct a wireless facility was not supported by substantial evidence under the TCA and New Jersey’s MLUL, and reversed. Finally, since the ZBA never brought up its argument that a federal court injunction requiring it to grant a variance to Appellees would result in unconstitutional commandeering before the District Court, the court consider it waived.

Because the court found that the ZBA’s denial of Appellees’ zoning variance violated the TCA’s “effective prohibition” language and was not based on “substantial evidence” as required by both the TCA and MLUL, it affirmed the District Court.

Sprint Spectrum, L.P. v Zoning Board of Adjustment of the Borough of Paramus, 606 Fed. Appx. 669 (3rd Cir. 4/20/2015)

Appellants CPM Trust, KLM Secure Trust, and RMP Parker Central, LLC filed this lawsuit against appellees the City of Plano, Texas and the Board of Adjustment of the City of Plano, Texas. The evidence introduced in the record was that the Plaintiff’s property had a legally, nonconforming billboard on it that was damaged by a storm. Section 3.1604(6) of the Plano Zoning Ordinance does not allow a nonconforming sign to be “moved, altered, removed and reinstalled, or replaced.” The Board voted 2–3 to uphold the building official’s decision that this language does not allow a property owner to repair the damaged billboard. The claims asserted by appellants were: a challenge to the Board’s decision requiring removal of a certain billboard owned by appellants; a violation of appellants’ “vested property rights”; and a regulatory taking claim. Following a hearing, the trial court denied appellants’ motion for summary judgment as to that claim and signed an order in which it affirmed the Board’s decision.

Section 3.1602 states in part that a sign is “dilapidated and deteriorated” when the structural support or frame members are visibly bent, broken, dented, or torn or the sign or its elements are twisted, leaning, or at angles other than those at which it was originally erected (such as may result from being blown or the failure of a structural support ). The photographs of the billboard cited by the Board showed one support pole standing and other parts of the billboard on the ground nearby. Because the court determined that the sign in question met this definition, rather than the “destroyed” definition suggested by the Board, the court held that the Board abused its discretion by not allowing appellants the option to make repairs as provided under subsection 3.1604(7)(b), and the trial court erred by affirming the Board’s decision.

The court rejected Plaintiffs’ takings claim, finding appellants did not contest the sign regulations in the City’s zoning ordinance, but rather complained about the City’s misapplication of certain regulations as to their property. Because of this, the court held that the owners did not allege a taking arising out of city board of adjustment decision requiring removal of billboard pursuant to city zoning ordinance and, therefore, the city retained immunity from inverse condemnation claim. Accordingly, the court upheld the trial court’s determination on the takings claim, but reversed as to the decision to affirm the Board’s decision the sign could not be repaired.

CPM Trust v City of Plano, 461 S.W. 3d 661 (TX App. 4/7/2015)

Premier Pawn leased property in Jackson, Mississippi for use as a pawn shop. The property was located in an area controlled by Ordinance 1104, the “High Street Overlay District,” which expressly prohibited the operation of pawn shops. However, a desk clerk in the zoning office mistakenly approved Premier Pawn’s building permit allowing necessary renovations to the existing building. Approximately two months later, and after Premier Pawn incurred expenses, the City discovered the error and issued a stop-work order. Premier Pawn contended that it detrimentally relied on the City’s “actions, inactions, misrepresentations and negligence”, and that the City’s alleged conduct violated Premier Pawn’s state and federal constitutional rights to “free speech, due process of law and equal protection under the law. Premier Pawn sought a temporary restraining order, a preliminary injunction, a permanent injunction, and alternatively, monetary damages.

Plaintiff’s equal protection claim failed due to the lack of a similarly situated comparator. Premier Pawn identified one potential candidate, “Boots and More,” a business Premier Pawn described as a “clothing store.” However, Boots and Moore sold apparel, while Premier Pawn intended to sell guns and other merchandise. Therefore, the court found In light of the legitimate goals of the High Street Overlay District, a rational basis existed for treating the two businesses differently. As to Plaintiff’s other claims, the court noted that “ordinarily the unauthorized acts of one of its officials does not estop a municipality from acting in its governmental capacity.” Absent relevant legal authority or record evidence suggesting that the unidentified desk clerk was authorized to grant an exemption to the express terms of the Overlay District ordinance, the court found that the City was entitled to summary judgment.

Premier Pawn, Inc. v City of Jackson, 2015 WL 4478557 (SS MS 7/22/2015)

The opinion can be accessed at:

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