Barbara and William Layton appealed from an order of the Court of Common Pleas of Beaver County, which reversed an order of the New Sewickley Township Zoning Hearing Board (ZHB) that had concluded that the dog-rescue operation run by Richard and Noreen Kohl (Applicants) was a non-permissible “kennel” under the Township’s zoning ordinance and denied the Applicants’ request for a variance. The trial court determined that because Applicants did not receive “economic gain” or a profit for their efforts, their dog-rescue operation was not a “kennel” and, therefore, was not a prohibited land use under the Ordinance. The Layton’s presented two issues in their statement of the questions involved: 1) whether the Ordinance’s restriction on “kennels” in suburban residential zones precludes use of a two-acre residential site as an incorporated, licensed animal rescue operation, keeping between twenty-two and forty large breed dogs; and 2) whether the trial court abused its discretion to the extent it found as a fact that a one-acre fenced-in area located on the two-acre residential site was not an “area set aside” within the Ordinance’s meaning of the definition of “kennel.”

The applicable ordinance defined kennel as “Any structure, pen or area set aside for the breeding, boarding, show, grooming or keeping of dogs, cats or similar domestic animals. For purposes of this Ordinance, the keeping of five (5) or more such animals for economic gain shall be deemed a commercial kennel.” Where the words of the ordinance are ambiguous, courts construe the ordinance in favor of the landowner. Here, there was no language in the definition of “kennel” that clarified how many dogs an individual can “keep” before being designated a “kennel” under the Ordinance. Although “dogs” is written in the plural, implying two or more, the absence of a conclusive number leaves an individual guessing, without a sufficient guidepost, at what point his ownership of more than one dog qualifies as a kennel. Accordingly, because the language comprising a “kennel” was facially ambiguous it was construed in favor of Applicants as the landowners.

Kohl v New Sewickley Township Zoning Hearing Board, 2015 WL 249186 (PA Commwlth 1/21/2015)

The opinion can be accessed at:

Tri–Cities Holdings LLC and a group of individual plaintiffs (collectively “Plaintiffs”) wanted to open a methadone maintenance clinic to treat opiate-addicted individuals in the City of Johnson City, Tennessee. Tri–Cities obtained an option to lease property in the City, but the chosen location did not meet all the requirements of a section of the City’s zoning code applicable to methadone maintenance clinics. Plaintiffs appealed the district court’s orders that (1) failed to grant their motion for a preliminary injunction barring enforcement of certain Tennessee statutes and the Johnson City, Tennessee zoning code, based on the court’s conclusion that Plaintiffs’ substantive claims are not ripe; (2) failed to grant their motion for partial summary judgment for the same reason; and (3) dismissed without prejudice their state law claims against the Tennessee state defendants. The district court found that Plaintiffs’ facial challenge to the zoning ordinance was premature, and invited them to reopen the case when Tri–Cities obtained a decision on its certificate of need (“CON”) and license applications. Tennessee Health Services and Development Agency (“HSDA”) then held a public hearing on Tri–Cities’s application for a certificate of need and denied the application.

The Sixth Circuit considered four factors in reviewing the district court’s order denying injunctive relief: whether Plaintiffs have shown a strong likelihood of success on the merits; whether Plaintiffs would suffer irreparable injury without the injunction; whether issuance of the injunction would cause substantial harm to others; and whether the public interest would be served by the issuance of the injunction. As to the likelihood of success, the court agreed with the district court that the Plaintiff’s claims were not ripe. This is because if Tri–Cities’s state administrative appeal is ultimately unsuccessful, it cannot open its clinic, and until that appeal process is complete, the court cannot reasonably determine if Tri–Cities was denied a CON due to some Catch 22 dilemma, or whether the denial was based on issues having nothing to do with Johnson City’s zoning ordinance or disability discrimination. Because the claim was not yet ripe, it was not found to have a likelihood of success.

Next the court examined, whether Plaintiffs would suffer irreparable injury without the injunction. Plaintiffs contended that individual opiate addicts lack methadone treatment, and must drive long distances to obtain that treatment. The driving of long distances, however, was not found to be irreparable harm caused by the denial, without prejudice, of their request for injunctive relief. Finally, the court found the public interest went against the granting of an injunction because the State of Tennessee and the public “have a strong interest in regulation of medical facilities consistent with Tennessee’s health plan and that a CON is granted only when the need for the facility is properly established. Accordingly, Plaintiff’s motion for a preliminary injunction was denied.

Tri-Cities Holdings LLC v Tennessee Health Services and Development Agency, 2015 WL 364004 (6th Cir. CA 1/29/2015)

The opinion can be accessed at:

View Outdoor Advertising wanted to erect a billboard in the Town of Schererville, but had been blocked from doing so by a relatively new ordinance prohibiting all billboards. View claimed this ordinance violated its free speech rights, that it did not receive proper due process regarding its request for a variance, and that the decision of the Defendant Town of Schererville, and its Board of Zoning Appeals, to deny the variance was arbitrary and capricious. View further claimed that the ordinance violates its First Amendment right to commercial speech by banning all billboards, and that its due process rights were violated when it did not receive notice of the meeting before the Council.

A restriction on otherwise protected commercial speech is valid only if it seeks to implement a substantial governmental interest, directly advances that interest, and reaches no further than necessary to accomplish the given objective. The court noted that there was no doubt that this ordinance fulfilled its stated goal of improving the aesthetics of the Town. The sign ordinance was found to be narrowly tailored because by banning these signs, the City did no more than “eliminate the exact source of evil it sought to remedy.” Thus, the First Amendment claim was dismissed. Similarly, View’s due process claim was dismissed since it was given an opportunity to be heard and present evidence before the ZBA made its decision. Finally, because the above mentioned federal claims were dismissed, the arbitrary and capricious claim was remanded to state court.

View Outdoor Advertising, LLC v Town of Schererville Board of Zoning Appeals, 2015 WL 331940 (ND Ind. 1/22/2015)

Boni Enterprises, LLC and Country Club Acres, Inc. owned contiguous parcels of property in the Town of Clifton Park, Saratoga County. Petitioners submitted a revised application for site plan review to the Town of Clifton Park Planning Board, outlining a plan to build 74 one-family dwellings on the Boni parcel and 15 commercial buildings to be used as office buildings, warehouses and flex space on the CCA parcel. The Planning Board contended that it was unable to consider the application because respondent Steven M. Myers, the Town’s Zoning Enforcement Officer, believed that there were zoning issues with petitioners’ site plan. The Zoning Board of Appeals of the Town of Clifton Park upheld Myers’s interpretation which, determined that multiple one-family dwellings could not be constructed on Boni’s parcel. Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking review of the ZBA’s determination.

The court first noted that although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law. Petitioners argued that the word “buildings” in the last sentence of § 208–33(B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. Despite this, the court found that the respondents were correct that the words building and dwelling were not synonymous and could not be used interchangeably, because a dwelling is a subset of the broader term building. Therefore, the plain language of the Town Code, strictly construed against the municipality, was interpreted as permitting multiple buildings, including one-family dwellings, on a single lot as long as they do not exceed the density limitations. For that reason, the court found that the ZBA’s determination must be annulled to the extent that it incorrectly interpreted that portion of the Town Code.

As to the issue of notice, even though the notice given here did not state that the proposed ordinance would repeal Local Law No. 2 (1970) of the Town of Clifton Park, the notice did state that the proposed ordinance would amend the zoning ordinance in relation to two business districts and identified the geographical area that would be affected, which included the CCA parcel. Accordingly, the record establishes that the Town gave the required notice that in general terms described the proposed ordinance, and the respondents were entitled to a declaration that Local Law No. 8 was properly enacted. Finally, as the record did not reflect that the Town has adopted an official zoning map, the failure to update its zoning map, which is unofficial and available merely as a reference tool, did not affect the validity of Local Law No. 8. The court therefore reversed the dismissal of the petitioner’s claims and held that the Town Code of the Town of Clifton Park did not prohibit petitioner Boni Enterprises, LLC from constructing multiple one-family dwellings on a single lot in the B–1 district

Boni Enterprises, LLC v. Zoning Bd. of Appeals of Town of Clifton Park, 2015 WL 176221 (N.Y. A.D. 3 Dept 1/15/2015)

The opinion can be accessed at:

Both the Chatham County–Savannah Metropolitan Planning Commission (“MPC”) and the Mayor and Alderman of the City denied Vantage’s request to construct a wireless transmission tower. The court granted Vantage’s motion for summary judgment because of the failure on the part of the government to provide reasons for the denial of the variance, and remanded the matter back to the City with instructions to include a list of detailed reasons explaining its decision.

The Court noted that the Telecommunications Act of 1996 (“TCA”) requires that each decision denying a request must “be in writing and supported by substantial evidence contained in a written record.” At the time of the City’s decision, the Eleventh Circuit had held that a letter similar to the Letter that was provided here was sufficient. However, the United States Supreme Court recently reversed and remanded that decision, holding that “localities must provide reasons when they deny cell phone tower siting applications.” See, T–Mobile S., LLC v. City of Roswell, Ga., 2015 WL 159278 (Jan. 14, 2015). The Court noted that “in order to determine whether a locality’s denial was supported by substantial evidence, as Congress directed, courts must be able to identify the reason or reasons why the locality denied the application.” Although those reasons need not be given in the same document denying an application, “the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.” “These reasons need not be elaborate or even sophisticated, but clear enough to enable judicial review.”

The District Court noted that here, the Letter did not provide any reasons for the locality’s decision. Therefore, it was difficult for the Court to determine whether the City had violated the substantive provisions of the TCA because the City did not state its reasons for its decision. The Court could not therefore reach the question of whether substantial evidence supported the City’s decision. Although the City failed to comply with the TCA, The Court said it did not act in bad faith as it was complying with then-current law. Therefore, the Court did not grant Vantage’s request for either money damages or a writ.

Vantage Tower Grp., LLC v. Chatham Cnty.-Savannah Metro. Planning Comm’n, 2015 WL 300257(S.D. Ga. 1/20/2015)

In 1991, Hurricane Bob destroyed, leaving vacant, what was once a lawful prior nonconforming single family dwelling located on a waterfront lot in the Swifts Beach area of Wareham. In a consolidated appeal, the question presented was whether there was a right to rebuild on the property. The Massachusetts Land Court Department found that the new owner had no right to rebuild, recreate, or replace the nonconforming residential structure formerly on the property as that right had been abandoned.

Noting that Section 6 of G.L. c. 40A protects “structures or uses lawfully in existence or lawfully begun” from subsequent changes in zoning ordinances and bylaws. The Bylaws similarly protect lawfully preexisting nonconforming uses and structures in certain circumstances. These protections, however, do not apply to uses or structures that have been abandoned. While Section 6 of G.L. c. 40A permits municipalities to establish provisions that protect the right to carry out alteration or reconstruction of nonconforming structures, municipalities also are authorized to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.” G.L. c. 40A, § 6. In the instant case, Bylaw § 1341 restricts nonconforming uses abandoned or not used for a period of two years or more. The Bylaws, however, did not include a similar time limitation as to nonconforming structures. Massachusetts law distinguishes abandoned nonconforming uses from abandoned nonconforming structures. Section 6 of G.L. c. 40A did not explicitly cause current zoning requirements to apply to abandoned or unused uses or structures if a municipality has elected not to regulate in this area. Massachusetts appellate courts, however, have decided that after sufficient time passes, abandonment will apply apart from local bylaws, even if there be no specific time limit in the municipal law.

The court ruled that Bylaw § 1341 by its words applied only to uses, not structures. The court stated that Wareham Bylaws do not enumerate a period of years after which a once lawfully nonconforming structure would be considered to have been abandoned if not rebuilt. The court stated, “abandonment may be found apart from ordinance.” The court concluded that abandonment “apart from the bylaw” was applicable here.

Next the court turned to determining whether abandonment had taken place. The court stated that abandonment requires a showing of “(1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment,” and noted that “Lapse of time is not the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use.” Therefore, “an owner can by his diligent efforts have some control over a period of vacancy, and if he allows an extended time to elapse with only desultory and equivocal action in the meantime, he runs the risk of a sustainable finding of abandonment and discontinuance.” Dobbs v. Board of Appeals of Northampton, 339 Mass. 684, 687 (1959).

Other factors such as “evidence that a property has not been maintained, secured, or protected may be viewed as consistent with, if not indicative of, an intent to abandon.”
The court stated that Chiaraluce had the burden of showing that the nonconforming structure had not been abandoned, and here he failed to sustain this burden. The Court noted that an individual cannot continually let pass available opportunities to rebuild, allowing a property to lie vacant for decades, and then take advantage of a bylaw adopted by the town over fifteen years after the destruction of the original nonconforming structure.

The Court found that the original owners formed an intent to abandon rights to reestablish a dwelling structure after the hurricane’s destruction, noting that although the previous owners applied for and received a permit to reconstruct the dwelling on the property, no action was taken by the family to rebuild. Further, the sale of the property to Chiaraluce demonstrated intent to abandon rights to proceed with reconstruction of the dwelling. The owners sold the property for consideration of only $5,000. Chiaraluce admitted during testimony that the property was purchased with the intent to use it as a parking area to accommodate occupants of his residential building next door. This demonstrated an intent on the part of both the original owners and Chiaraluce not to maintain or preserve any still existing ability to reconstruct the prior nonconforming dwelling on the property.

The unexplained eight year period in which Chiaraluce repeatedly missed opportunities to reconstruct a dwelling on the property was the most clear demonstration of the intent to abandon the structure. Although the “blanket permit” rebuilding rights secured by the Olsens was still in effect in 1993 when Chiaraluce purchased the property, no action was taken to preserve or extend the permit to build. Instead Chiaraluce let the permit lapse. Chiaraluce took no action consistent with a desire to preserve the nonconforming structure for nearly eight years. By the time he did apply for a building permit, the better part of ten years had elapsed following the demolition of the hurricane-damaged cottage. The total inaction by Chiaraluce and the long stretch of years beyond the expiration of the extended permit with no real effort or resources expended in the direction of rebuilding, indicated abandonment.

The Court reiterated that with only specific exceptions, zoning regulations are used and intended to fulfill the legislative goal of “eventual elimination of nonconforming uses.” Nonconforming uses and structures are disfavored by the legislature which, subject to carefully defined statutory protections, encourages bylaws that “extinguish nonconforming uses” and structures. See Bartlett v. Board of Appeals of Lakeville, 23 Mass.App.Ct. 664, 667 (1987). In a shoreline community such as Wareham, zoning restrictions serve to mitigate adverse residential concerns such as excessive density and overcrowding.

Chiaraluce v. Ferreira, 2014 WL 7466508 (Mass. Land Ct. 12/ 31/2014)

Deputy Community Development Director Kim Murry, Planning Commissioner John Fowler and Planning Commissioner Michael Draze owned properties located within the San Luis Obispo County, and there was a development proposal for an Airport Overlay Zone which included a noise sensitive land use requirement, a prohibition to activities that may be hazardous to flight operations and a requirement to disclose a notice of the airport and aircraft over flights in the deeds to their property.

In addressing each official’s interest individually, the California Fair Political Practices Commission found that Ms. Murry’s ownership of a residence within the current Airport Overlay Zone was already subject to state disclosure laws which required property owners to advise buyers that their property was in an airport zone, and that the prohibition on activities that were hazardous to flight operations were very similar to prohibitions already contained in the Airport Land Use Plan. The commission further found that the proposed developments to a ranch located approximately one-half of a mile from Murry’s property would not result in any changes to the character of her neighborhood such as traffic, view, or noise and the change to a creek side area located within 500 feet of Murry’s property would not have a measurable impact on Murry’s property because the property was buffered by existing homes.

In regards to Commissioner Fowler’s property, the commission found that the underlying zoning of Fowler’s property would not change for the same reasons discussed with respect to Murry’s property, and a developed area significantly buffered that Fowler’s property.

The Commission concluded by finding the creation of the Airport Overlay Zone would not have a reasonably foreseeable material financial effect on Commissioner Draze’s property because his property was nearly one mile away from the nearest area proposed for development, and only a small portion of that area was within the Airport Overlay Zone. In addition, the Commission found that Draze’s commercial condominiums were not within the city limits and would have to be annexed before the city would controls its land use. For these reasons, the commission found that the parties would not be prohibited from participating in government decisions regarding the creation of the Airport Overlay Zone.

Anne. M. Russell, CA FPPC adv. A-14-166A, 2014 WL 5149934 (10/3/2014)

The Cities of Palo Alto, Menlo Park and East Palo Alto formed The San Francisquito Creek Joint Powers Authority (Authority) in order to facilitate and perform bank stabilization clearing, plan flood control measures for the creek watershed, preserve and enhance environmental values, coordinate emergency mitigations and to make recommendation to member entities for funding and alternatives for long term flood control. The Authority proposed a project that would build floodwalls, bridge alterations and upstream detentions basins to prevent further flooding from the creek, and part of the proposed floodwall was located within 500 feet of Board Member Keith’s property. Keith’s property was not located within the floodplain and she was not required to purchase flood insurance, but Keith’s access to and from the arterial streets could potentially be impaired in a major flood event.

In answering the question of whether Board Member Keith’s property created a conflict of interest, the California Fair Political Commission found that Keith’s property was indirectly involved in the governmental decision and the financial effect on the property was immaterial. Specifically, the commission found that the Authority’s project classified as repairs and maintenance against a flood, and that repair and maintenance was one of several exceptions whereby an official’s property is presumed to be indirectly involved. The commission further found that the presumption of an immaterial financial effect can be rebutted if there are specific circumstances where the official has an economic interest, but that these specific circumstances does not apply to Keith’s property because the property was not located within the floodplain, Keith was not required to purchase flood insurance and the floodwalls would not be visible from Keith’s property.

Gregory W. Stepanicich, CA FPPC Adv. A-14-053, 2014 WL 1498287 (3/26/2014)

The two consolidated cases at issue both stemmed from the Defendant Hatfield Solar, LLC’s proposed construction of 8,000 + solar collection panels on property in the Town of Hatfield’s Rural Residential district, known and numbered as 45 Chestnut Street in Hatfield. Plaintiffs are the owners of other properties in the Town of Hatfield, seeking to block construction of the solar collection facility in its proposed location. In Land Court Case No. 12 MISC 470612 (“Case 1”), Plaintiffs sought a declaratory judgment, pursuant to G.L. c. 240, § 14A, concerning the applicability of certain provisions of the Town of Hatfield Zoning By-laws, specifically Use 5.26 in the By-laws’ Section 3 Table of Permitted Uses, to Hatfield Solar’s proposed use of the Property. In Count I of Land Court Case No. 13 MISC 477351 (“Case 2”), Plaintiffs appealed pursuant to G.L. c. 40A, § 17 from a decision of the Hatfield Zoning Board of Appeals which upheld the issuance of a building permit for the solar collection panels on the Property on the grounds that the use is not a permitted use described in Use 5.26, and must be allowed as an exempt use pursuant to G.L. c. 40A, § 3, ¶ 9 (the “ § 3 Solar Provision”). Plaintiffs’ argument was that Hatfield Solar’s solar collection facility falls into one of three renewable or alternative energy uses permitted in the Industrial Districts and that, therefore, the § 3 Solar Provision does not automatically exempt Hatfield Solar’s Project from application of the By-laws. Hatfield Solar argues that its solar collection facility is not a permitted use in any district of the Town and, therefore, must be exempted from zoning regulation pursuant to the § 3 Solar Provision.

Here, the court found that the three types of renewable or alternative energy facilities which a municipality must allow in order to qualify as a green community under the 2008 legislation generally matched the three types of renewable or alternative energy facilities listed under Use 5.26 as allowed by right in the Industrial Districts. Under the statutory language the § 3 Solar Provision, a municipality may reasonably regulate solar energy systems, but cannot prohibit them outright. Therefore, because the Board’s Decision upholding the issuance of the Building Permit was based on the legally incorrect premise that the Project is not regulated under Use 5.26 and was consequently exempt from zoning regulation by the § 3 Solar Provision, the court held that the Plaintiffs were entitled to summary judgment under Count I in Case 2, annulling the Board’s Decision.

Duseau v Szawlowski, 2015 WL 59500 (MA Land CT 1/2/2015)

Plaintiff MountainWest Ventures, LLC, wanted to develop real property in the City of Hope, Idaho. To develop the property according to its plans, MountainWest applied to the City of Hope for a Conditional Use Permit. The City conducted public hearings on the application, and denied it. MountainWest then requested a regulatory takings analysis from the City. The City provided that analysis, and later denied MountainWest’s request for reconsideration. MountainWest now alleges that the City acted inappropriately at several points during these proceedings, and that the defendants violated its procedural due process rights under the Fourteenth Amendment.

MountainWest asserted a protected property interest in the conditional use permit it sought from the City. However, Idaho statutory law governing conditional or special use permits states that “such permits may be granted to an applicant if the proposed use is conditionally permitted by the terms of the ordinance, subject to conditions pursuant to specific provisions of the ordinance, subject to the ability of political subdivisions, including school districts, to provide services for the proposed use, and when it is not in conflict with the plan.” Thus, the use of the word “may” rather than “shall” in both the statute and the ordinance indicated that the City Council retained discretion to grant or deny a permit. Accordingly, MountainWest was not entitled to a conditional use permit and therefore did not have a protected property interest. Because the Court dismissed plaintiff’s federal due process claim, and the only remaining claims were based on Idaho state law, it dismissed them without prejudice so they could be refiled in state court.

Mountainwest Venture, LLC v City of Hope, 2015 WL 222448 (D. Idaho 1/14/2015)

The opinion can be accessed at:

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