The Nazarene Church property, located in the Township’s suburban residential zoning district, sought several special use permits between 1991 and 2013 to expand its ability to conduct its services. All of these special use permit applications were approved by the Township. However, over the years, homeowners in the surrounding neighborhoods complained about the Church’s existing activities, which created noise, littering, and safety issues. Plaintiff Livingston Christian Schools (LCS) sought to relocate from Pinckney, Michigan to the Church’s building to operate a Christian school, and entered into a five-year lease agreement with the Church beginning June 1, 2015. The Township learned about LCS’s anticipated relocation to the Church property beginning in the 2015-2016 school year and advised the Church that it would need to apply for a special use permit to allow LCS to operate a school on the Church property, which it did.

In this case, LCS alleges that the Township violated RLUIPA by denying the Brighton Church of the Nazarene’s special use permit that would have allowed LCS to relocate to property owned by the Church. Specifically, LCS argued that the Township’s decision denying the Church’s amended special use permit imposed a substantial burden on LCS’s religious exercise and the religious exercise of its students. The court found that when the Township denied the Church’s permit application, LCS had not yet leased its Pinckney property, and therefore could have used that location as an alternate to the Church property. Additionally, LCS has operated for 2015-16 school year at the Whitmore Lake location. Thus, “nothing the Township has done requires LCS to violate or modify or forego its religious beliefs or precepts, or to choose between those beliefs and a benefit to which LCS was entitled. Because there was no indication that LCS was being prevented from exercising its religious beliefs, there was no substantial burden here.

LCS next alleged that the Township violated its constitutional right under the First Amendment to freely exercise its religious beliefs. Specifically, LCS claimed that the Township did not apply the ordinance neutrally, since the Township allowed a driver licensing program to operate on the Church property without the proper permit for over a decade. However, the denial at issue was the first time the Church was denied a special use permit, and the Township’s history of granting special use permits for religious uses casted doubt on LCS’s contention that the Township was motivated by a discriminatory intent.

Lastly, LCS claimed that the Township violated its Fourteenth Amendment right to Substantive Due Process by arbitrarily and capriciously denying it a protected property right when the Township denied the requested special use permit. According to LCS, Section 19.02 mandates that if the Planning Commission recommends approval because the ordinance is satisfied, then the Township “shall” approve the special use permit and “may impose reasonable conditions with the approval.” The court disagreed with this interpretation, however, finding that Section 19.02.04 established several actions the Township may take once it received the Planning Commission’s recommendation, including a “Denial of Special Land Use and Site/Sketch Plan Application.” Because the Township had discretion to deny LCS’s special use permit, LCS does not have a protected property interest. Accordingly, Defendant’s motion for summary judgment was granted.

Livingston Christian Schools v Genoa Charter Township, 2016 WL 3549337 (ED MI 6/30/2016)

 

The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron Avenue, LLC, filed an application for a special permit to construct a CVS pharmacy located on 2.4 acres of land located at the corner of Hebron Avenue and Manchester Road in Glastonbury. The subject property was zoned for commercial development, but all uses required a special permit with design review approval. The property was abutted by an established single-family neighborhood in a rural residential zone. The town’s Plan and Zoning Commission denied the application because of its scale and intensity in relation to the size and topography of the parcel, its impact on and lack of compatibility with the existing neighborhood, and the inadequacy of the proposed landscaping.

The plaintiffs appealed from the commission’s decision to the Superior Court, which dismissed their appeal on the ground that the decision was supported by substantial evidence in the record. Following this court’s granting of the plaintiffs’ petition for certification to appeal, they filed their appeal challenging the trial court’s determination. This court affirmed the judgment of the trial court. The plaintiffs then commenced the present action against the defendant, claiming that the denial of their application for a special permit “precluded any reasonable economical development of the site and constituted an unconstitutional taking without just compensation….”

On appeal, the plaintiffs argued that the “commission will be bound under the prior application rule from allowing any reasonable commercial use of the property” because “due to the size, location, and topography of the subject property, any viable commercial development will present at least one of the issues that caused the denial of the CVS application.” However, during the trial, alternative proposals were offered to demonstrate uses that could be made of the property. Although the plaintiffs contended that they would not be accepted by the commission because any commercial development would result in an adverse impact to the neighborhood, the court found it was sheer speculation to assume that a less intensive proposal than the one originally submitted would be denied by the commission. As to the plaintiffs’ argument that the court’s previous decision would have a preclusive effect on any future applications for a special permit, the court found that no findings were made as to traffic, noise, property values or adverse impacts upon the neighborhood: thus, no mention was made of any possible future applications.

Hayes Family Limited Partnership v Town of Glastonbury, 2016 WL 4305464 (CT App. 6/28/2016)

 

Lake Hendricks Improvement Association, City of Hendricks, Minnesota, and Norris Patrick (Petitioners) petitioned the circuit court for a writ of certiorari and challenged the Board’s decision to grant Killeskillen a CUP for a concentrated animal feeding operation (CAFO). Petitioners asserted that the Board acted without jurisdiction when it granted the CUP because Brookings County failed to validly enact its ordinances in 2007 governing CUPs. The circuit court refused to consider whether the county validly enacted the ordinance, as it found such review would be outside the scope of Petitioners’ writ challenging the board’s decision.

On appeal, Killeskillen argued that the circuit court was without subject matter jurisdiction to consider the merits of Petitioners’ writ because Petitioners are not persons or entities entitled to appeal under SDCL 11–2–61. Here, the court found that Legislature specifically gave the circuit court the power to act under SDCL chapter 11–2, which states, “upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment.” The statute identifies those entitled to appeal as “any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer … of the county.” This description of plaintiffs is unlike those described in SDCL 7–8–27 and SDCL 7–8–27 which identified one classification: “any person aggrieved.” Therefore, under the plain language of SDCL 11–2–61, a taxpayer in Brookings County may appeal a board of adjustment’s decision. Because Norris Patrick was a taxpayer in Brookings County, he had standing under SDCL 11–2–61.

Finally, in 2007, the Brookings County Commission adopted a zoning ordinance under SDCL chapter 11–2 specifying the Board as the approving authority. However, Petitioners presented evidence to the circuit court that the Brookings County Commission failed to follow the dictates of chapter 11–2 when it adopted its 2007 Ordinances. The court found that if Petitioners were correct, and the County failed to adopt a zoning ordinance pursuant to chapter 11–2, the Board would be without jurisdiction to approve Killeskillen’s application for a CUP. Accordingly, the court found that the circuit court erred when held that such review is beyond the scope of a writ under SDCL chapter 11–2, and held that a remand of the case was necessary to examine Petitioners’ claim that the Board did not have jurisdiction over the matter.

Lake Hendricks Improvement Assoc. v Brookings County Planning and Zoning Comm’n, 2016 WL 3556757 (SD 6/28/2016)

 

 

Appellants (“the Silvertip Landowners”) were a group of private landowners in Carbon County who initiated a petition to establish a “Part 1” zoning district pursuant to § 76–2–101, MCA. The Appellees were the Board of County Commissioners of Carbon County, and a group of private landowners in Carbon County who opposed the proposed zoning district (“the Neighbors”). After the Board of Commissioners denied the Appellants’ petition to create a zoning district, Appellants filed a declaratory action, requesting a judgment declaring that the “protest provision” included in the statute is unconstitutional and that the Commissioners’ actions in denying the petition were “arbitrary and capricious,” violative of the Montana constitutional environmental provisions, and therefore void. District Court granted Appellees’ motion to dismiss, dismissing the complaint without prejudice.

The Silvertip Landowners argue that the Commissioners waived the requirements of Resolution 2009–16, and, contrary to the District Court’s conclusion, the waiver was valid and did not warrant dismissal of the complaint, since no party was prejudiced by the waiver. Here, however, it was uncontested that the petition did not comply with Resolution 2009–16, as the map indicating the boundaries of the area of land to be included in the proposed district, marking the individual names of landowners, was not produced by a certified land surveyor, nor was it attached to each of the signature pages as they were circulated. Additionally, while the individual signature pages in the record appeared to satisfy the requirements for the required lines for signatures and descriptions, but the signatures were neither notarized, nor was there an affidavit attached to the petition from the person collecting the signatures. Moreover, the period for submission of additional signatures or withdrawal of signatures was cut off, potentially impacting the final tally and the validity of the petition.

The court also found that it was disconcerting that the same body that adopted Resolution 2009–16 as law could single-handedly make the determination to “waive” the Resolution when time constraints make compliance inconvenient, and upon its own assessment that no prejudice would result by its decision to do so. As such, the court found that the District Court correctly concluded that the Commissioners acted “arbitrarily and for reasons of convenience” by waiving those requirements.

Martinelli v Board of Commr’s of Carbon County, 2016 WL 3172388 (MT 6/7/2016)

Editor’s Note: This summary by Karla Chaffee, Evan Seeman and Dwight Merriam appearedoriginally on the RLUIPA Defense Blog here: https://www.rluipa-defense.com/2016/06/sewer-connection-must-be-by-the-least-restrictive-means

Barbara L. Yoder and Joseph I. Yoder (“Owners”) own a home in Sugar Grove Township, Pennsylvania (“Township”), which has a mandatory sewer connection ordinance (the “Ordinance”), requiring connection to the Sugar Grove Area Sewer Authority’s (“Authority”) infrastructure. According to the Ordinance, any property that abuts a sewer system constructed by the Authority must connect to the system at the owner’s expense.

The Owners are Old Order Amish, and one tenet of their religion is to disavow the use of electricity, including running water—which requires the use an old-fashioned privy (outhouse). In 2008, the Owners and the Authority entered into a Sewage Services Agreement (Agreement). The Owners agreed to pay the connection fee, past due sewer charges, future monthly charges, and dispose of their privy waste at least once a year into the Authority’s pumping station. In 2010, the Authority filed a municipal complaint against the Owner’s for non-payment of sewer fees. The Authority also filed a separate action for breach of the Agreement and to seek injunctive relief requiring connection to the sewer system. The trial and appeals courts found in favor of the Authority and directed the Owners to connect to the sewer system. If the Owners failed to connect, the court authorized the Authority to enter the property and connect the dwelling to the sewer system at the Owner’s expense. Paragraph 5 of the order provided that: “[The Authority] shall, in the process of connecting the property to the sewer system, take due care as to [Owners’] religious convictions, and shall proceed in a manner so as to pose the least possible intrusion on [Owners’] religious convictions and beliefs.”

The Owners and the Authority continued to disagree over the method of connection. The Authority issued a letter stating that the Owners must open an electricity account in order to run a grinder pump required for service on their property. In response, the Owners filed a petition for injunctive relief.

Ater a two day hearing the court ruled that the Owners would not be required to open an electricity account, although they could be billed for usage through the Authority, and “[the Authority] may connect [Owners’] premises to [the Authority’s] sewer system in a manner that shall be at the [the Authority’s] sole discretion and at [Owners’] sole expense. This Order supersedes Paragraph 5 of the [2013 Order] at Docket No. 191 of 2012.”

The Owners appealed the decision, arguing that the trial court had previously ordered that the Authority require connection in a manner that was least restrictive to the Owners’ religious exercise, and had impermissibly modified the court’s final order. They also argued that the trial court erred in not considering all of the elements for a preliminary injunction.

On review, the appeals court agreed with the Owners that the trial court had impermissibly modified the 2013 order requiring the sewer connection. It therefore reinstated the original paragraph five. It also remanded the decision to deny the requested injunction, which sought immediate injunctive relief from an electric-dependent connection.

The appeals court found that the trial court had erred in not considering whether requiring connection through the use of electricity constitutes the least intrusive means of interference with the Owners’ religious exercise.

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by non-electric means, or, failing that, electricity generated by natural, non-electricity provider means. Importantly, the trial court also did not address the Owners’ alleged clear right to the least intrusive means of a mandatory connection.

Yoder v. Sugar Grove Area Sewer Authority, No. 1956 C.D. 2015 (Pa. Commw. Ct. 2016)

 

The decision is an important reminder that while ordinances such as this one (requiring a sewer connection) may not be a “land use regulation” invoking RLUIPA, the First Amendment to the U.S. Constitution provides very similar, if not identical protection, in other contexts.

Kenlin Properties, LLC and TLA–Providence, LLC, as the owner and operator of Pond View Recycling, a construction and demolition debris processing facility brought an action, sought judicial review of zoning board’s decision to uphold notice of violation issued by city zoning officer finding several violations of use variance that had been granted to owner and operator. The zoning officer cited Pond View for: exceeding the approved open storage area; expanding beyond the 150–ton limit approved in the 1998 use variance; accepting products other than wood; operating beyond the permitted hours of operation; failing to maintain an earthen berm; and adding additional equipment to the site. In or about June 2011, Kenlin and TLA appealed the notice of violation to the zoning board. The Superior Court reversed the zoning board, concluding that the zoning board’s decision was clearly erroneous and made upon unlawful procedure.

On appeal, the city argued that the trial justice “erred in applying collateral estoppel principles to preclude the zoning officer from raising the ‘tonnage’ and ‘concrete’ issues regarding Pond View’s use of the facility.” Here, because the city was again a party, Kenlin was in privity with Pond View, and a final judgment on the merits was entered by the 2006 declaratory judgment, the first two requirements of collateral estoppel were met. However, neither the declaratory judgment itself nor the hearing justice’s decision resolved the issues of how much tonnage Pond View was permitted to process per day and the types of materials it was permitted to process. Accordingly, the city was not barred from pursuing violations based on the amount or type of material accepted at Pond View.

The city next argued that the trial justice erred in holding that the zoning official and zoning board could not consider the application, site map, and testimony at the public hearing in determining the scope of the variance. The court reasoned that the scope of a use variance ever exceed the relief originally requested by the property owner in his or her original application and testimony before the zoning board, and to hold otherwise would allow a prohibited use to expand through an inartfully worded motion by a member of a zoning board or simply through the passage of time. The court therefore found that the determination of the scope of a use variance was a question of fact entrusted in the first instance to the local zoning officer and then to the zoning board, subject to appellate review by the Superior Court.

Here, it was agreed that the scope of use would be limited “to a 150–ton limit of the operation per day,” that the “grinding hours” would be 8 a.m. to 4 p.m. Monday through Friday and 8 a.m. to noon on Saturday, that a berm would be installed “around the machine,” that the facility would recycle wood only, and that there would be no outside storage other than what was allowed under the existing zoning ordinance. A zoning board member then proposed the following findings of fact: “that the use is compatible with the neighboring land use, that the use does not create a nuisance in the neighborhood, that the use does not hinder the future development of the city, that the use conforms with all applicable sections to the use requested, and that the applicant would be deprived of any beneficial use of the property if the applicant is required to conform to the provisions of the zoning ordinance.” A motion was made to grant “this use variance,” which passed unanimously.

Accordingly, the court found that the zoning officer and zoning board properly reviewed the record to determine the scope of the use permitted by the 1998 use variance and that the findings of fact by the zoning board were not “clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record.” The court therefore held that the trial justice erred by reversing the decision of the zoning board.

Kenlin Properties, LLC v City of East Providence, 2016 WL 3449976 (RI 6/23/2016)

 

Michael Selig, through a limited liability corporation called Aerotierra, purchased some land that he intended to use as a private airport/heliport. Selig filed a zoning application, asking for a special exception and variance. The North Whitehall Township Zoning Hearing Board (“ZHB”) denied his application, determining that a heliport was not a permitted use on the property, and that Selig did not meet the requirements for a special exception. Selig filed an appeal in the Court of Common Pleas of Lehigh County, which dismissed his appeal, finding that Selig lacked standing because the property was owned by Aerotierra, LLC, and the Commonwealth Court of Pennsylvania also dismissed his appeal for lack of standing. The District Court dismissed Selig’s complaint without prejudice for failure to state a claim upon which relief could be granted. Selig then filed an amended complaint, arguing that the ZHB and Judge J. Brian Johnson violated his substantive due process rights. The District Court dismissed the amended complaint with prejudice as to Judge Johnson on the basis of judicial immunity, and dismissed it as to the ZHB because Selig lacked standing to bring a substantive due process claim. The Court also denied Selig’s motion for reconsideration, and Selig appealed.

On appeal, Selig argued that he had standing to sue because he had some type of beneficial or equitable ownership interest in the property under Pennsylvania law. The court found that nothing other than full property ownership warranted substantive due process protection. However, even if Selig had a protected property interest in the property during the zoning proceedings, the court found the dismissal of Selig’s complaint was proper, since the allegations of the complaint did not state a plausible substantive due process claim. Here, Selig was required to show that the ZHB deprived him of a protected property interest and that such deprivation “shocks the conscience.” The court held that complaints related to zoning requirements, inspections, and permits were “frequent in land use planning disputes” and that while adversely affected property owners could couch such complaints as abuses of legal authority, they do not rise to the level of substantive due process violations.

Selig v North Whitehall Township Zoning Hearing Board, 2016 WL 3440450 (3rd Cir. CA 6/23/2016)

Stewart Enterprises, Inc. and SE Combined Services of California, Inc. obtained a building permit to construct a crematorium on a site in East Oakland. Five days later, the Oakland City Council passed an emergency ordinance requiring a conditional use permit (CUP) to operate new crematoria. Stewart administratively appealed a determination that the emergency ordinance applied to its proposed crematorium, but Oakland’s Planning Commission denied the appeal. Stewart then brought this action, which included administrative-mandamus claims, against the City of Oakland, the City Council, and the Planning Commission. The trial court granted one of Stewart’s claims petitioning for writ of administrative mandamus, ruling that Stewart had a vested right in the building permit based on a preexisting local ordinance and that the emergency ordinance was not sufficiently necessary to the public welfare to justify an impairment of that right. On appeal, the City argued that: Stewart had no vested right; even if Stewart had a vested right, it was not impaired; and even if Stewart had a vested right that was impaired, the impairment was supported by substantial evidence.

Under the judicial vested-rights doctrine, a party acquires a vested right in a building permit if the party has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government. Here, the permit-vesting ordinance conveyed a vested right because it shielded the holder of a lawfully issued building permit from having to comply with any subsequently adopted zoning regulations if such regulations would “prohibit the construction … authorized by said permit.” Even if the emergency ordinance was lawfully passed and the City Council intended it to override the permit-vesting ordinance, the court found no reason as to why the permit-vesting ordinance failed to confer a vested right on Stewart when Stewart obtained the building permit.

The City next argued that the application of the emergency ordinance to Stewart’s project impaired no vested right conferred by the permit-vesting ordinance because the latter ordinance only “proscribed the application of legislation to prohibit a project, whereas the emergency ordinance imposed a CUP requirement.” The court disagreed, finding that once the emergency ordinance was applied to the project, Stewart was no longer allowed to build the crematorium because it did not have a CUP. Moreover, the possibility that Stewart could regain the right to build the crematorium if it applied for and was granted a CUP does not change this fact: a project can be “prohibited” even if the fulfillment of certain contingencies might at some later date reauthorize it.

Lastly, the City contended that the impairment of Stewart’s vested right by the emergency ordinance was justified because the impairment was sufficiently necessary to the public welfare. The evidence the City cited established there were concerns about what impacts the crematorium might have on the public and local businesses. However, there was no evidence that Stewart’s crematorium in particular posed a danger to public health. Accordingly, the court held that there was insufficient evidence of a danger or nuisance to the public to justify the City’s application of the emergency ordinance to Stewart’s project.

Stewart Enterprises, Inc. v City of Oakland, 2016 WL 3453650 (CA 6/23/2016)

Editor’s Note: This post by Edward Sullivan, Esq. is reposted from the Northwest Land Law Forum available here: http://www.northwestlandlawforum.com/2016/07/eleventh-circuit-dismisses-claims-by-toucan-sellers-in-florida-zoning-case/#more-4946

A zoning enforcement action taken against Plaintiffs by Defendant County for having unpermitted accessory buildings that housed a toucan-raising operation, which was upheld through the local administrative process and state courts. Plaintiffs then filed a federal action making various state and federal law claims against county employees in their individual and official capacities, challenging the denials and the county authority to regulate and asserting various civil rights claims. Both parties moved for summary judgment and the court granted partial summary judgment on one state claim to plaintiffs, while granting summary judgment to the county on the remaining claims and finding immunity for county employees. Plaintiff appealed summary judgment on their substantive due process, equal protection, compelled and commercial speech and illegal search and seizure claims. The court reviewed the summary judgment decisions de novo. The court said it would dismiss a claim, inter alia, if it were wholly insubstantial or frivolous, i.e., if had no plausible foundation or a prior Supreme Court decision clearly forecloses the claim.

Regarding substantive due process, the court found that property rights are not created by the constitution and are thus not fundamental; but are reviewed instead under a “rational basis” standard. Thus distinctions are given “minimal scrutiny” and need only be rationally related to a legitimate government purpose. The court concluded that it was so related and also that zoning enforcement was an executive, rather than a legislative act, which is not subject to substantive due process jurisdiction.

As to the equal protection claim, plaintiffs brought a “class of one” claim and thus must show that they have been intentionally treated differently from those similarly situated and there is no rational basis for that different treatment. To be “similarly situated,” the court said that the comparators must be prima facie identical in all respects to support the class of one claim. Because plaintiffs have failed to identify a similarly situated comparator that was intentionally treated differently, they cannot prevail on this claim.As to their free speech claims, whether “compelled commercial speech” or not, did not cross the constitutional threshold. No government regulation compelled them to express a message with which they did not agree; more relevant was the fact that such speech was not commercial in nature.

As to the unlawful search and seizure claim, plaintiffs appealed the enforcement decision from the enforcement officer to the county manager and paid fees for the appeal and a subsequent special exception application. They did not prevail and cannot claim a search and seizure of their funds to finance the process that did not work out for them. 

The court vacated the trial court decision for the lack of any federal claim and remanded the case to the trial court to vacate its judgment as well.

Foley v. Orange County, 2016 WL 361399 (11th Cir. 1/29/2016)

 

James Little appealed the denial of his petition to rezone a residential subdivision for commercial use. To prevail, Little was required to prove by clear and convincing evidence that there was a change in the character of the neighborhood to such an extent as to justify rezoning and that a public need existed for rezoning. On appeal, Little argued that the Ocean Springs Board of Aldermen denied his petition because it erroneously defined the “neighborhood” as too small an area. Specifically, Little contended that the Board erred by classifying the subdivision as a neighborhood since it was a single street consisting of thirty-six lots.

Little argued that he demonstrated a public need through evidence of: higher tax revenue, commercial expansion, consistency with the comprehensive plan, changes in traffic patterns, and record statements of a Board member agreeing with his position regarding such changes. However, the court noted that the Board of Aldermen was the fact-finder, charged with determining the public needs of Ocean Springs; the court’s deferential standard of review reflected “the judiciary’s reluctance to meddle in local affairs where the aldermen know best the issues affecting their constituents.” Here, the alderman concluded his comments by saying that he did not have sufficient information to find a public need because he wanted to investigate the impact on the current residents further. Furthermore, those opposing rezoning argued that rezoning would jeopardize their investments in the neighborhood, both emotional and financial. The residents also argued that restrictive covenants governing the subdivision would not allow commercial development in any event.

The court found that the on-the-record comments of the individual board members illustrated that the conclusions advocated by both sides were fairly debated on the record and, therefore, the Board’s decision was neither arbitrary nor capricious.

Little v Mayor and Board of Aldermen of the City of Ocean Springs, 2016 WL 3391552 (MS App. 6/21/2016)