This post was authored by Matthew Loescher, Esq.

In 1979, the Brunings purchased property which was zoned for agricultural use, and began renting buildings on the property to various businesses. In 2015, in response to a complaint brought by a neighbor of the Brunings, the City opened an investigation into the Brunings’ property and found that it was in violation of its agricultural-use zoning. The Brunings applied for a variance, but the application was rejected by the City’s Zoning Board of Appeals. The Brunings appealed the decision of the Zoning Board of Appeals to the District Court for Douglas County and the Nebraska Supreme Court, and both courts affirmed the decision of the Zoning Board of Appeals. The Brunings then brought this case, claiming the City’s actions were unconstitutional and should be equitably estopped. The Court granted summary judgment for the City on all but plaintiffs’ class-of-one claim. 

Plaintiff alleged that they were treated differently because the City sent them an email notice giving them five days to vacate their property, whereas the City gave owners of the comparator properties thirty days to cease and desist violative operations. The court rejected this contention, finding that the City had a rational basis to treat the Brunings differently than the owners of the allegedly similarly situated properties. Here, the Brunings remained in violation of zoning ordinances 18 months after the City received complaints about their property, and failed to provide the City with information it requested. As a result, the court held that even if the comparator properties were similarly situated to the Brunings’ property, the City had a rational basis for treating the Brunings differently and the City was entitled to judgment as a matter of law. 

Bruning v City of Omaha, 2020 WL 4015482 (D. NE 7/16/2020)

This post was authored by Matthew Leoscher, Esq.

In this case, plaintiffs challenged the right of their neighbors, Merriann M. Panarella and David H. Erichsen, to construct a single-family residence on property directly across the street from the plaintiffs’ home. Although the defendants’ irregularly shaped property was sufficiently wide at the street and meets setback requirements, the plaintiffs argued that the property was too narrow at the location where the home would be built. The Zoning Board of Appeals of Sherborn upheld the issuance of the foundation permit, and the plaintiffs filed a complaint in the Land Court. After a trial, a Land Court judge dismissed the plaintiffs’ appeal for lack of standing – finding the plaintiffs were not “aggrieved” by the Board’s decision. The Appeals Court disagreed, finding that noncompliance with the dimensional limits itself was sufficient to establish harm.

At the outset, the court noted that while the plaintiffs had presumptive standing as abutters, that presumption may be rebutted by a showing that, as a matter of law, the plaintiffs’ “claims of aggrievement are not within the interests protected by the applicable zoning scheme.” Here, the plaintiffs claimed that the value of their property would be diminished as a result of the defendants’ proposed development. The realtor who listed the subject lot for sale testified that, in her expert opinion, the addition of a single-family residence on lot 69F would in no way diminish the value of the plaintiffs’ property. Additionally, the judge compared the testimony of the two experts and determined that the testimony of the plaintiffs’ expert failed to rebut the defense expert’s testimony that runoff from the subject lot in its proposed developed state would be less than runoff from the lot in its current cleared state. The court therefore affirmed the decision that the plaintiffs were not aggrieved by the Board’s decision, and thus lack standing to pursue the appeal.

 Murchison v Zoning Board of Appeals of Sherborn, 2020 WL 4012766 (MA 7/16/2020)

This post was authored by Matthew Loescher, Esq.

Riverbend Landfill Co. owned property in Yamhill County that was used as a solid waste disposal facility. The County granted Riverbend a disposal franchise, and the county approved changes to its comprehensive plan and zoning map to designate and rezone Riverbend’s property as “Public Works Safety” (“PWS”) from “agriculture/forestry large holding.” The purpose of this was to allow the development of a “sanitary landfill” on the property, which was a permitted use in the PWS zoning district. At the time of the rezoning, the County operated under the provisions of its 1976 Yamhill County Zoning Ordinance (“YCZO”), which did not require site design review (“SDR”) for the development of any permitted uses within a property zoned as PWS, including a landfill. In this case, Waste Not of Yamhill County and McPhillips Farms, Inc. appealed from a judgment entered in a writ-of-review proceeding, which affirmed Yamhill County’s determination that Riverbend Landfill Co.’s proposed modification of the slope of existing landfill modules was compatible with Riverbend’s existing land use authorization, the County’s comprehensive zoning plan and land use regulations, and the County’s subsequent issuance of a favorable Land Use Compatibility Statement (“LUCS”) to that effect. 

On appeal, petitioners argued that the trial court erred because, “under the newly applicable EFU zoning of the landfill” and “the applicable county regulation,” Riverbend’s application for a DEQ permit for grade modification required the county to conduct a SDR, and, as such, “the county’s LUCS certification improperly construed the applicable law” The record reflected that Riverbend’s use of the property for a landfill was approved in 1980. Petitioners failed to demonstrate any error in the county’s determination that the 1980 approval, and Riverbend’s existing use, included the continuous and progressive development of solid waste disposal modules in the existing landfill, including the grade modification at issue. Accordingly, the court found that the County did not misconstrue the applicable law when it concluded that an SDR and review under ORS 215.296 were not required as a result of the rezoning. 

Petitioners next argued that since the SDR application in the Stop the Dump Coalition litigation included a proposal to modify existing landfill modules as part of the larger expansion, Riverbend’s application for a LUCS in this case to modify the grade of the landfill modules “was barred by the doctrines of res judicata and claim and issue estoppel.” The court found that the issue of whether the modified grade permit was compatible with local land use regulations and whether the activity covered by that permit was within the scope of Riverbend’s existing land use authority, and was therefore not subject to the SDR provisions of the YCZO, not actually litigated in the Stop the Dump Coalition litigation, and was not essential to a final decision on the merits in that case. Moreover, Riverbend’s application for a LUCS was not based on the same factual transaction that prompted the Stop the Dump Coalition litigation. 

The petitioners’ next contention was that the County’s findings in the order issuing the LUCS were not supported by substantial evidence in the record. Here, the record demonstrated that the County reviewed Riverbend’s LUCS application, which proposed to “modify its currently approved grading plan along existing side slopes,” and stated that the modification occurred within the existing footprint and did not require expansion on to the existing property or any adjacent properties. Furthermore, the County reviewed a topographical map of the landfill indicating the area that would be the subject of the modified grade permit, and reviewed county records relating to Riverbend’s authority to operate a landfill and other documents relating to Riverbend’s prior land use applications authorizing the development of Riverbend’s landfill. As a final matter, the court noted that the county’s comprehensive zoning plan and land use regulations – ORS 215.296(1) and YCZO 402.02(V) – did not apply retroactively to require Riverbend to obtain SDR approval for the uses that were authorized by the County in 1980. 

Waste Not of Yamhill County v Yamhill County, 305 OR App. 436 (7/15/2020)

Posted by: Patricia Salkin | July 14, 2020

New Article on Regulating Pet Cemeteries

People love their pets and more and more wish to be buried with their furry companions.  This article explores myriad ways that state and local governments are regulating the pet cemetery industry, and how local governments can use zoning and other land use controls to site the cemeteries.

This post was authored by Matthew Loescher, Esq.

Plaintiff, Lighthouse Realty Trust, owned property in Bourne that it rented out as a venue for weddings and other large gatherings. Following complaints by neighbors concerning traffic and noise, and the issuance of a cease and desist order to Lighthouse on January 15, 2013, the town of Bourne brought a complaint in the Land Court, for declaratory and injunctive relief, on the ground that Lighthouse’s use of the property for such events constituted a prohibited commercial use in the residential zoning district in which the property was located. Lighthouse ultimately entered into a settlement agreement with the selectmen of the town, and a judgment entered dismissing the Land Court action. Following this, the building inspector issued a revised cease and desist order to Lighthouse, conforming to the terms of the settlement agreement, and abutting defendant Molloy appealed that order to the Board. The Board issued a decision overturning the building inspector’s revised order, and directing reinstatement of the January 2013 cease and desist order. Lighthouse appealed the Board’s decision to the Superior Court, which affirmed the Board’s decision after trial.

On appeal, Lighthouse claimed that Molloy – the abutting property owners – was bound by the town’s settlement of the Land Court action. The court found that the abutters in the present case had no opportunity in the Land Court action itself to ensure that their interests were protected. Here, the Land Court judge denied Molloy’s motion to intervene but, recognizing Molloy’s potential interest in the resolution of the matter, directed the building inspector to give notice to Molloy and any other abutters of any decision affecting the previous cease and desist order, to preserve their statutory right to appeal any such action by the building inspector to the zoning Board of Appeals, as Molloy subsequently did. As such, the court held that the settlement agreement in the Land Court action neither deprived the board of jurisdiction over Molloy’s appeal nor operated to determine the applicability of the bylaw to Lighthouse’s property. 

The court next found no legal error, abuse of discretion, or arbitrariness in the Board’s conclusion that the advertisement and rental of the property by Lighthouse as a wedding venue constituted a commercial, rather than a residential, use. The record reflected that neither Lighthouse’s trustee nor any beneficiary of the trust resided at the property. Moreover, the use of the property for weddings was conducted pursuant to rental contracts with unrelated third parties, for financial gain by Lighthouse. Accordingly, the court declined to invalidate the Board’s decision that the use of the property as a venue for weddings or other large gatherings by unrelated third parties on a rental basis was not accessory to its permitted residential use. As a result, the Zoning Board of Appeals of Bourne acted within its authority in concluding that the use by the plaintiff, Lighthouse Realty Trust, was prohibited under the Bourne zoning bylaw. 

Stevens v Zoning Board of Appeals of Bourne, 2020 WL 3394755 (MA App. 6/19/2020)

This post was authored by Matthew Loescher, Esq.

Plaintiffs, entities owned or controlled by Michael J. Maroney, were the developers of a fifty-lot residential subdivision in the city of Haverhill. Maroney was part way through the subdivision build out, with many of the homes already completed, when City officials stopped issuing the necessary permits for the remaining subdivision lots. The City contended that Maroney had to complete a water pressure booster station before building on the lots in question, and that he had not done so. Following this, Maroney brought this suit in Superior Court, seeking relief in the nature of mandamus to compel the appropriate officials to issue the permits. Maroney began building on several of the lots for which he did not have permits, and the City building inspector issued cease and desist orders, and counterclaimed in this action for civil penalties due to the unauthorized building. A Superior Court judge entered summary judgment for the City on Maroney’s affirmative claims, and granted the building inspector summary judgment on his counterclaims. 

At the outset, the court noted that Maroney was no longer the owner of the property, having lost it through foreclosure. Thus, Maroney’s requests for mandamus and injunctive relief were moot. Furthermore, although Maroney’s complaint contained claims for misrepresentation, breach of contract, and breach of the implied covenant of good faith, Maroney did not pursue those claims on this appeal. As with the requests for mandamus and injunctive relief, however, the declaratory judgment claim was found moot because Maroney no longer had a legal interest to vindicate. 

Next, Maroney did not contest that he violated both the State building code and the City bylaws by building on the lots without the required permits; instead, he challenged the procedure by which the fines were imposed and calculated. The building inspector first issued two cease and desist letters in July of 2015. Those letters did not identify any specific fine amount or state that fines would be imposed for actions that Maroney had taken before the letters had issued.

 The City argued that because Maroney was an experienced builder, he should have known that fines would be imposed when he knowingly proceeded without a building permit, and that strict compliance with the notice requirements for both the State building code and the local bylaws was unnecessary. The court rejected this position, finding the statutory procedures in question served more than a salutary notice function, and were designed to provide not only appropriate notice, but also an opportunity to be heard with administrative efficiency. The judgment that awarded monetary penalties to the City was therefore reversed.

 Maroney v Planning Board of Haverhill, 2020 WL 3165011 (MA. App. 6/15/2020)

Posted by: Patricia Salkin | June 14, 2020

PA Appeal Court Upholds Approval of Subdivision Plan

This post was authored by Matthew Loescher, Esq.

East Ohio Capital owned parcels located at 706-712 Cedar Avenue in the City of Pittsburgh’s East Allegheny neighborhood that were improved with single-family residential buildings and are zoned R1A-VH (Residential Single Family – Very High Density). A local organization, the Northside Leadership Council (“NLC”), owned the parcels located at 406-410 East Ohio Street that were improved with two, three-story commercial buildings and were zoned Local Neighborhood Commercial (“LNC”). The plan at issue proposed to consolidate and subdivide these eight lots into five lots, with a 5.6-foot strip of land from one of the R1A-VH properties being incorporated into the rear of the LNC property at 406-410 East Ohio Street. In this case, objectors Chris Gates and Stephen Pascal appealed from the Order of the Court of Common Pleas of Allegheny County, which affirmed the City of Pittsburgh Planning Commission’s approval of East Ohio Capital LLC’s proposed lot consolidation and subdivision plan.

On appeal, the objectors argued the plan qualified as a major subdivision plan pursuant to Section 4.14 of the Subdivision Regulations because it proposed to consolidate properties that were located in the Historic District, and were thus “Sites of Special Interest.” Contrary to Objectors’ contention, the Subdivision Regulations did not involve new construction that created 10 or more lots, did not subdivide more than 500,000 square feet of land, and did not subdivide within a “Site of Special Interest.”. As such, the Plan was not a major subdivision. Additionally, pursuant to Sections 3.0 and 3.1 of the Subdivision Regulations, a minor subdivision requires the filing of an application with the Zoning Administrator, the submission of a sketch plat, and a final subdivision plan. Here, while Objectors argued East Ohio Capital did not file an application with the Zoning Administrator, the record reflected that East Ohio Capital filed its plan with the Zoning Administrator – as he testified as to its submission and review by City staff, resulting in its recommended approval.

Next, Objectors contended that East Ohio Capital did not meet the criteria for the Plan’s approval because it did not establish: “the public use or interests to be served by the Plan; how the Plan would enhance the “Pittsburgh Character” of the neighborhood; or what the impacts would be on the public health, safety and general welfare of the neighborhood.” The court found that in approving the Plan, the Commission implicitly credited East Ohio Capital’s evidence and rejected Objectors’ contrary evidence. Furthermore, Ohio Capital’s evidence supported the Commission’s determination as it showed that the Plan would not cause a negative impact on the neighborhood where the Plan allowed for the rehabilitation of the dilapidated and nuisance properties. Accordingly, the court did not find any error or abuse of discretion in the Commission’s approval of the Plan.

 Gates v City of Pittsburgh Planning Commission, 2020 WL 3125309 (PA Comwlth 6/12/2020)


This post was authored by Matthew Loescher, Esq.

Peter and Galina Haver alleged that their neighbor, Miriam Galan, was installing plumbing without a permit and violating the single-family zoning classification by providing room and board at her residence to at least two individuals unrelated to her. The Havers sued the City of West Palm Beach and two City employees, Rick Greene and Aleandro Lopez for failure to enforce zoning codes. In this case, Peter and Galina Haver appealed the circuit court’s final order dismissing with prejudice their five-count complaint in a zoning enforcement action.

Counts I and III of the complaint sought injunctive relief against the City. The court noted that in Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958), the Florida Supreme Court reaffirmed that “where municipal officials threaten or commit a violation of municipal ordinances which produces an injury to a particular citizen which is different in kind from the injury suffered by the people of the community as a whole, then such injured individual is entitled to injunctive relief in the absence of an adequate legal remedy.” However, a plaintiff “is without redress in equity unless he can allege and prove special damages peculiar to himself and differing in kind rather than in degree from the damages suffered by the people as a whole.” Since the claims set forth in this case were specifically permitted by Boucher, the court reversed the circuit court’s order dismissing them, and remanded for further proceedings. On remand, the court was instructed to determine whether the Havers have adequately pleaded special injuries as required by Boucher.

Count II of the complaint sought a declaratory judgment on the Neighbor’s activities and that the City’s refusal to enforce its zoning classification was an ordinance violation. The court also reversed the court’s order dismissing count II, and declined to address the issue. On remand, the court was ordered to determine whether the allegations are otherwise sufficient under chapter 86, Florida Statutes.

Count IV of the complaint was pleaded in the alternative and sought mandamus relief. The court affirmed the court’s dismissal of this claim, as the City did not issue any enforcement order or decision that could be challenged. As such certiorari was inappropriate, and the court therefore affirmed the trial court’s dismissal of count V of the complaint.

 Haver v City of West Palm Beach, 2020 WL 3067760 (FL App. 6/10/2020)


This post was authored by Matthew Loescher, Esq.

In 2012, plaintiff purchased a single-family residence located in respondent-defendant Town of Grand Island for the purpose of renting it out on a short-term basis. Plaintiff never resided at the subject premises. In 2015, the Town enacted Local Law 9 of 2015, which amended the Town Zoning Code to prohibit short-term rentals in certain zoning districts, except where the owner also resided on the premises. Following the enactment of Local Law 9, plaintiff unsuccessfully applied for an extension of the amortization period and for a use variance permitting him to continue operating the subject premises as a short-term rental notwithstanding Local Law 9. Plaintiff then commenced this CPLR article 78 proceeding and declaratory judgment action. In this case, Plaintiff appealed from an order and judgment that granted defendants’ motion for summary judgement.

On appeal, the court found that contrary to plaintiff’s contention, defendants established their entitlement to summary judgment dismissing the regulatory taking cause of action, and that they were not required to show that Local Law 9 “substantially advanced a legitimate State interest. Specifically, plaintiff failed to submit evidence establishing that, due to the prohibition under Local Law 9 on short-term rentals, the subject premises was not capable of producing a reasonable return on his investment or that it was not adaptable to other suitable private use. Here, plaintiff’s submissions merely showed a diminution in the value of the property, which was insufficient to demonstrate a regulatory taking. Moreover, while plaintiff sought declaratory relief in the second cause of action, the court found that even if Local Law 9 effected a regulatory taking, the appropriate relief would be a hearing to determine “just compensation,” not a declaration that the law was invalid. Accordingly, the court affirmed the granting of defendants’ summary judgment motion seeking dismissal of the second cause of action.

Wallace v Town of Grand Island, 2020 WL 3161007 (NYAD 4 Dept. 6/12/2020)

This post was authored by Mathew Loescher, Esq.

Applicant Horvath Towers V, LLC was a communications tower infrastructure provider that owned and operated thousands of communications tower sites. In September 2018, Applicant and Pittsburgh SMSA Limited Partnership d/b/a Verizon Wireless filed the Application for a telecommunications tower facility. In this case, Horvath Towers V, LLC appealed from the Allegheny County Common Pleas Court’s order affirming the Indiana Township Board of Supervisors’ decision denying a conditional use application to construct a communications tower in the Township. 

The plat attached to Applicant’s Application unambiguously described the tower site area – the only area that Applicant would control under the Lease – as 100’ x 100’. Since Applicant’s tower’s height was to reach 190 feet, the minimum tower site area was required to be almost 2 acres – approximately 87,120 square feet. Thus, the proposed tower site’s 10,000-square-foot dimensions did not meet this condition, and the Board properly concluded that Applicant failed to satisfy the requirement. As the court held Applicant did not establish that the proposed use met the requirements of Section 511.B.1.a of the Ordinance, it did not consider Applicant’s compliance with the Ordinance’s other requirements.

Applicant next contended that the Board’s denial of its Application violated the TCA because a locality cannot deny an application if, in so doing, it would have the effect of prohibiting wireless services. The court determined that

the Board’s Application denial had nothing to do with whether service was available from another provider or whether Verizon had a gap in its coverage. Instead, the court found the Application denial was “based on a bona fide local zoning concern.” Accordingly, the court affirmed the findings the trial court and the Board. 

Horvath Towers V, LLC v Indiana Township Board of Supervisors, 2020 WL 3068737 (PA Cmwlth 6/10/2020)

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