In an ongoing extraterritorial dispute between the City of Whitefish and Flathead County regarding land-use regulation in a 2-mile-wide area surrounding Whitefish city limits, the district court invalidated a 2011 City referendum that repealed a city-county resolution on the subject. The City appealed, arguing that the post-election challenge to the referendum was filed too late, that the district court erred when it determined that the resolution was an administrative act that was not repealable through the referendum process, and the effect of the repeal of the referendum should be to return the city and county to a 2005 agreement under which the city had zoning and planning jurisdiction for the area.

In a case of first impression, the Montana Supreme court said it would review the matter for correctness trial court’s conclusions of law regarding the validity of referendum. The court held that the action was not untimely under state statute that provides a 14-day deadline to challenge a proposed action in a referendum and the filing of an action four days after the results of the referendum were certified did not warrant dismissal based upon laches. Lastly, the Court concluded that the Resolution was not subject to referendum by voters to rescind it.

Phillips v City of Whitefish, 330 P. 3d 442 (MT 7/15/2014)

The opinion can be accessed at:
http://mtlawlibrary.wordpress.com/2014/07/16/opinion-phillips-et-al-v-city-of-whitefish

Petitioner commenced an action to challenge the granting of an application by the zoning board of appeals to allow construct an addition to a residence without requiring certain setback variances. During the pendency of the action, the application had expired and the property owners submitted a new application to the zoning board, which was again approved. Since the original permit that was the subject of the litigation had expired, and there was a subsequent application, hearing and decision, the appellate court dismissed the instant proceeding as moot.

Lilly Pad, LLC v Zoning Board of Appeals of East Hampton, 2014 WL 4086267 (N.Y.A.D. 2 Dept. 8/20/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42570.pdf

Landowners brought an inverse condemnation action against city, challenging the city’s refusal to change the comprehensive plan. The case involved two parcels of land located in the City of Flagler Beach, Florida (“City”) under recreational zoning. The first parcel had been operated as a nine-hole golf course (“golf course parcel”). The second parcel was a vacant parcel situated inside the golf course parcel (“condo parcel”). For several decades, the golf course parcel and the condo parcel made up a single parcel owned by Ocean Palm Estates, Inc. (“Ocean Palm Estates”), which was the predecessor in title to Ocean Palm Golf Club Partnership (“Ocean Palm Golf”). Eventually, Ocean Palm Estates threatened the City with litigation over its refusal to change the zoning from recreational.

Subsequently, the City and Ocean Palm Estates entered into a Development Agreement. It created a Planned Unit Development consisting of two parcels. The golf course parcel would remain and be designated recreational in the Comprehensive Plan. If not, the golf course parcel would be maintained as an open space. In return, the City would allow residential development on the condo parcel. The Comprehensive Plan designated the condo parcel as “high density residential” and the zoning was changed. The Development Agreement would expire on July 1, 2003.

Ocean Palm Estates sold both parcels, deeding the golf course parcel to Ocean Palm Golf and the condo parcel to Ocean Palm Condominium Ventures, Inc. (“Ocean Palm Condo”), which was Caribbean Condo’s immediate predecessor in interest. The City rejected Ocean Palm Condo’s first attempt at development in 2000. The second attempt at development was not successful either. In 2001, Ocean Palm Condo deeded the condo parcel to Caribbean Condo. In June 2002, Caribbean Condo made a third development proposal. Knowing the Development Agreement would soon expire; Caribbean Condo sought an extension of the agreement. The City denied the extension, but approved the site plan, with conditions. Caribbean Condo was unable to revise the plan to the conditions because the other items required by the Development Agreement would not fit.

Caribbean Condo made a fourth attempt to develop the condo parcel in 2004. To be built, it required that Caribbean Condo purchase one acre of the golf course parcel from Ocean Palm Golf. The City found issues with the plan and asked Caribbean Condo to resolve issues with the plan before the City would reschedule a hearing. Caribbean Condo, unable to resolve the issues that they were unable to do. In 2008, Caribbean Condo tried another approach to development by trying to get the property “down-zoned” so they could develop single-family residences on both the condo parcel and the golf course parcel. To do so, the Comprehensive Land Use Plan had to be amended to make both parcels “low density residential.” The ownership of the two parcels was not merged for the proposal.
The application for the Comprehensive Plan amendment listed Ocean Palm Golf as the owner, even though the application sought an amendment re-designating both the golf course parcel and the condo parcel. Moreover, the application did not distinguish between the two parcels.

After a second public hearing, again that drew strong public opposition, the City denied the amendment. On appeal to the trial court, Ocean Palm Golf and Caribbean Condo jointly alleged that the City’s refusal to change the Comprehensive Plan’s designation left the parcels without any economic viability, resulting in a taking or at a minimum resulted in a partial taking. At trial, representatives of Ocean Palm Golf and Caribbean Condo testified that they bought their respective parcels with the plan of developing the condo parcel into a high-density residential complex pursuant to the terms of the Development Agreement and operating the golf course as an amenity. After the golf course was closed in 2008, the company was no longer able to make the mortgage payments. The parties presented conflicting expert testimony as to the economic viability of the property. Of major contention was whether the golf course parcel should be considered independent from the condo parcel or whether the two parcels should be considered as a single unit, which the court held that each option had an economically beneficial use. The trial court entered judgment in favor of the City.

On appeal, the court noted three factors to consider: physical contiguity, unity of ownership, and unity of use. Dep’t of Transp., Div. of Admin. v. Jirik, 498 So.2d 1253, 1255 (Fla.1986). To determine whether there is unity of use, the courts have assessed the following factors: (1) intent of the owner, (2) the adaptability of the property, (3) the dependence between parcels, (4) the highest and best use of the property, (5) zoning, (6) the appearance of the land, (7) the actual use of the land, and (8) the possibility of tracts being combined in use in the reasonably near future. Because the property was separately platted and unoccupied, there was a rebuttable presumption of separateness. The unity of use factor weighed in favor of finding that the presumption was rebutted. The purchasers worked together to obtain approval of symbiotic developments on the parcels. And, Ocean Palm Golf and Caribbean Condo treated the two parcels as one in their application.

The unity of ownership factor also weighed in favor of finding that the City rebutted the presumption of separateness. Although different companies now owned the parcels, there was substantial overlap in principals and shareholders. Moreover, in the amendment application, the parcels were claimed to be owned by Ocean Palm Golf alone. Ocean Palm Golf made a similar representation in a prior lawsuit. Lastly, the physical contiguity factor weighed in favor of finding that the City rebutted the presumption of separateness. The two parcels at issue not only were they contiguous, but one was located within the other.

The court held that because the City rebutted the presumption of separateness and the parcels retained an economically beneficial use was substantial evidence that the trial court properly relied on.
Further, the court concluded that no partial taking occurred. In Penn Central Transportation Co. v. City of New York, the Court identified three factors to apply when analyzing of whether a regulation constituted a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.

The court stated that the third factor, weighed in favor of finding a partial taking because the burden of the regulation fell disproportionately on Ocean Palm Golf. In a separate but related case involving the same parties, a prior trial court found that “this parcel constituted a substantial portion of the green space for the City” and that “it was the only privately owned parcel with an ‘R’ recreational designation.” Thus, while the benefits of the open space provided by the golf course were widely shared throughout the Flagler Beach community, Ocean Palm Golf alone shouldered the burden of that regulation. However, the first factor weighed in favor of finding that there had been no partial taking.

The matter is currently on appeal to the Florida Supreme Court.

Ocean Palm Golf Club Partnership v City of Flagler Beach, 139 So 3d 463(FL 5/30/2014)

The opinion can be accessed at: http://www.5dca.org/Opinions/Opin2014/052614/5D12-4274.op.pdf

The City of Garfield Heights (“City”) limited the size of signs, political and otherwise, that residents may place on their lawns. Frank Wagner, a City resident, placed a political sign on his lawn that was larger than the City allows. The district court found that the City’s restriction on Wagner’s political speech violated the First Amendment and the Circuit Court reversed.

The Circuit Court first looked at whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The district court found that the ordinance was content-based because the City must determine whether a sign is political in nature before it can determine which provision of the city code applies. Non-political signs are subject to a single-sign limitation, whereas political signs are not. The appeals court found that the failure to regulate political signs as heavily as non-political signs does not constitute content-based regulation. Because political signs are subject to no greater restrictions than are non-political signs, the court did not find that the ordinance imposed a content-based regulation. Accordingly, the court applied intermediate scrutiny to this case.

Here, the City’s interests in aesthetics and traffic safety were achieved more effectively by the presence—than by the absence—of the ordinance. Consequently, the ordinance satisfied the tailoring condition. The court found that Wagner retained numerous alternative ways to communicate his message. Not only may he hand out leaflets or take out newspaper advertisements, but he may blanket his lawn in signs that declare “Mahoney Baloney.” The one thing he may not do is post a sign that exceeds 6 square feet in area and 4 feet in height. The City’s political-sign ordinance therefore survived intermediate scrutiny because it served significant government interests, was narrowly tailored to promote those interests, and left open alternative channels of communication.
Because the court concluded that the ordinance imposed a content-neutral restriction on the time, place, and manner of speech, and because the City has satisfied the intermediate scrutiny applicable to such regulations, the Circuit Court reversed the district court’s decision in favor of Wagner.

Wagner v City of Garfield Heights, Ohio, 2014 WL 4067171 (6th Cir. 8/19/2014)

On February 6, 2014, the Plaintiff 545 Halsey Lane Properties, commenced an action pursuant to 42 U.S.C. § 1983 challenging two decisions by the Defendant Southampton Town Planning Board involving conditional approvals of the Plaintiff’s applications for a building permit for the construction of a barn and/or barns on its property. The Plaintiff alleges both a violation of its Fourteenth Amendment right to Substantive Due Process, and a violation of its Fourteenth Amendment right to Equal Protection under the law. On April 3, 2014, the Defendants moved to dismiss the complaint.

As to the Due Process claim, the court noted that for an interest in a particular land-use benefit to qualify as a property interest for the purposes of the due process clause, a landowner must show a “clear entitlement” to that benefit. In attempting to show a constitutionally protected property interest, Plaintiff alleged that: (1) agricultural structures are exempted from site plan review by Town Code § 330–181(A)(2); and (2) some grants entered into by the Town with other property owners specifically conditioned the property owners’ reserved rights on site plan approval and/or certain provisions of the Town Code, thereby suggesting that such approval and compliance was not required in this case. Furthermore, the Plaintiff alleged that the Defendants arbitrarily and without explanation required the Plaintiff to submit to site plan approval; refused to permit the Plaintiff to erect structures permissible under the Grant which complied with the Town Code’s dimensional requirements; and required the Plaintiff, as a condition of erecting the proposed barn, to remove certain improvements permitted under the Grant, including a recreational playground, baseball diamond, art installations, and landscaping, and to relinquish its right to store landscaping equipment on the Property. Accordingly, the court held that the Plaintiff had adequately stated a plausible claim for denial of its Substantive Due Process based upon alleged conduct that was arbitrary, conscience shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised.

In analyzing the Equal Protection claim, the Court found that the complaint sufficiently alleged that the Plaintiff’s property was treated differently than similarly situated properties. With regard to the second element of a “class-of-one” claim, the Plaintiff must adequately plead that any differential treatment was without a rational basis. Here, the Court found that the Plaintiff sufficiently alleged that no rational basis supports not permitting the Plaintiff to erect its proposed barn, while (1) permitting the Plaintiff’s predecessor-in-interest to erect a single-family residence, (2) taking a directly contrary legal position in the Mantello litigation, or (3) allowing landowners nearby to erect barns with greater building density.

Therefore, the Court dismissed the Defendants’ motion to dismiss the Complaint.

545 Halsey Lane Properties v Town of Southampton, 2014 WL 4100952 (EDNY 8/19/2014)

Petitioners live .69 miles from a beach club that was granted certain zoning variances. The appellate court held that they were not entitled to a presumption of injury for purposes of challenging the zoning determination, and that their allegations of injury-in-fact due to overcrowding and congestion were speculative. Further, the Court determined that the alleged injuries were not specific to the petitions and were not distinguishable from those suffered by the public at large. Therefore, the petitioners lacked standing to challenge the issuance of the variances.

Radow v Board of Appeals of Town of Hempstead, 989 N.Y.S. 2d 914 (A.D. 2 Dept. 8/6/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42511.pdf

The Hales were owners of a house on agricultural land about one mile southeast of a shooting range in Ward County, used to train local, state, and federal law enforcement officers. Robert and Susan Hale appealed from a summary judgment dismissing their public nuisance claim against Ward County and the City of Minot. The court concluded that the Hales, as private persons, are not entitled to maintain a claim for a public nuisance under N.D.C.C. § 42–01–08, because they did not show the alleged public nuisance is specially injurious to them. The court also denied the Hales’ request to join additional neighbors as parties to their action.

As for the first claim, the Hales alleged that the law enforcement shooting range was a private and a public nuisance and that the shooting range devalued their property, resulting in a governmental taking. The Hales claimed the law enforcement shooting range posed a danger to their property, to Gowan’s property, to other neighbors’ property, and to the general public using County Road 12. Ward County and Minot County responded by claiming that the law enforcement shooting range was a sports range under N.D.C.C. § 42–01–01.1 and that the shooting range was not a public or a private nuisance, and the court agreed.

The court followed the well-established construction of language rule and similar to N.D.C.C. § 42–01–08 construed the “specially injurious” language of that statute to authorize a private person to maintain a public nuisance claim if the private person suffers harm of a kind different from that suffered by other members of the public and the injury was suffered while exercising a right common to the general public. The court held that evidence of bullet holes in signs near the shooting range and County Road 12 raised factual issues about whether the shooting range posed an unlawful danger and was a public nuisance. Robert Hale’s use of County Road 12 once or twice a month to visit friends does not demonstrate the range was specially injurious to him in a manner different from other members of the public under N.D.C.C. § 42–01–08 so as to entitle him, as a private person, to maintain an action for a public nuisance. The court held that this statute requires a private person bringing a public nuisance action to show a special injury to that person of harm different in kind from that suffered by other members of the public. Accordingly, the court affirmed the summary judgment dismissing his public nuisance claim.

Hale v Ward County, 848 N.W. 2d 245 (ND 6/24/2014)

The City of Greenwood engaged in a dispute with Martin Marietta Materials (“Martin”) arising out of a rock quarry located south of Greenwood. The parties entered into a settlement in which Martin paid Greenwood $7,000,000, and Greenwood agreed to designate Second Avenue for the truck traffic. In the settlement, Greenwood declared that the truck traffic was reasonable and did not constitute a nuisance. Zerger and Mauer served as Greenwood’s counsel throughout the litigation and settlement, receiving over $4,000,000 in fees. On July 29, 2011, eighteen individual plaintiffs who held property interests on Second Avenue commenced action in Missouri state court against Martin and other entities (collectively, “Martin”) involved in transporting materials from the quarry, seeking damages for a private nuisance, among other claims. Zerger and Mauer served as counsel for these plaintiffs. prior to the district court’s resolution of the merits case, on February 21, 2012, Greenwood—a non-party—moved to disqualify Zerger and Mauer from representing the individual plaintiffs, contending that Zerger and Mauer’s current representation constituted a conflict of interest. The district court agreed with Greenwood and, on April 26, 2012, the district court disqualified Zerger and Mauer, who then appealed.

The court reasoned that the district court’s inherent need to manage its bar and uphold the rules of professional conduct are no less significant for the “maintenance of orderly procedure” than the Rule 11 sanctions Willy declined to overturn. For the purposes of evaluating the propriety of the district court’s order absent jurisdiction, the resolution of Greenwood’s motion to disqualify is separate from the merits case; therefore, the district court’s disqualification order should enjoy the same treatment as a Rule 11 sanction order, and the court concluded the jurisdictional infirmity did nothing to disturb the district court’s order.

Pursuant to Missouri Rule of Professional Conduct 4–1.9(a) outlines the duties an attorney owes former clients: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” As such, the Eighth Circuit upheld the district court’s disqualification order. This order only governs Zerger and Mauer’s representation in the federal proceedings, however, and will likely become an issue when the matter moves to state court.

Zerger & Mauer LLP v. City of Greenwood, 751 F.3d 928 (8th Cir. 2014)

Plaintiff M & K Partners LLC appealed a decision by the Stoughton Planning Board to grant site plan approval to the Van Dam defendants for the construction of an industrial building on property directly abutting M & K’s. The Van Dams, joined by the board, have moved to dismiss the complaint, contending that the court lacked jurisdiction over the appeal because it is premature. They also claimed that M & K is not sufficiently “aggrieved” to have G.L. c. 40A, § 17 standing, and that their site plan application is “petitioning activity” protected by the anti-SLAPP statute, G.L. c. 231, § 59H, and that M & K’s appeal is a violation of those protections.

Under Article XIV (Site Plan Review) of the Stoughton zoning bylaw, “the appeal of any decision of the Planning Board hereunder shall be made in accordance with the provisions of MGL c. 40A, § 17. The court held that a town may adopt a bylaw providing for immediate appeal of a site plan review decision, even if it is of the “non-discretionary” type otherwise not appealable until issuance of a building permit, and that this is such a bylaw. Furthermore, despite the contention that M & K was not sufficiently aggrieved, at least one of the impacts alleged by M & K as directly affecting its property relates to drainage—an environmental issue, specifically addressed by the site plan bylaw. Since the Van Dams did not offer any evidence to rebut M & K’s presumption of standing, the court dismissed Van Dams’ contention on standing. In regards to the G.L. 231, § 59H (the so-called “anti-SLAPP” statute) claim, the Van Dams stated that this action is groundless, “and a mere pretext to intimidate and harass the Van Dams as the result of the Norfolk Superior Court Matter.” However, M & K raised several objections in this appeal (e.g., those related to drainage and, perhaps, to process) which, if proven, would warrant relief—a remand to the board for further explanation or action, and perhaps substantial changes to the site plan. Because the Van Dams have not submitted any admissible evidence to rebut these claims, the court dismissed its motion to dismiss.

M&K Partnership LLC v Scardino, 2014 WL 3798081 (Mass. Land Ct. 7/30/2014)

On April 8, 2013, Global Tower and Northeast submitted an application for review by the Rome Planning Board requesting approval to construct a wireless telecommunications tower in the Leased Area (the “Application”). The Belgrade Region Conservation Association (“BRCA”), a local organization that holds conservation easements in the Town of Rome, publicly expressed its direct opposition to the Application. Throughout the course of the proceedings before the Planning Board, Global Tower and Northeast learned that members of the Planning Board were also members of BRCA. At the December 9, 2013 Planning Board meeting, all four of the Planning Board members with BRCA membership stated their belief that they did not have a conflict of interest and were not biased. At that same meeting one of the co-chairs reiterated his belief that the communication tower would “defile” the Town’s scenery and that nobody in the Town wanted it. He then recused himself for being biased. At the conclusion of the February 10, 2014 meeting, the Planning Board voted to deny the Application. On March 11, 2014, Global Tower and Northeast filed their Complaint (ECF No. 1) against the Town of Rome and the Planning Board. Plaintiffs’ Complaint asserted nine counts.

The district court dismissed the claims brought under the Telecommunications Act (TCA) because Global Tower and Northeast had further recourse before the Town of Rome since they could have appealed to the Town Board of Appeals and potentially garnered a different result. The Plaintiffs’ Due Process claims were also dismissed as the First Circuit set a high bar for stating a claim of violation of due process in land use disputes and “run of the mill” disputes will not suffice.

Plaintiffs also asserted state-law claims for violations of Plaintiffs’ due process rights under the Maine Constitution (Count III), conflict of interest (Count IV), violations of 1 M.R.S.A. § 71 (Count V), bias (Count VI), violations of Maine Rule of Civil Procedure 80B and 30–A M.R. S.A. § 3012 (Count VII) and lack of authority (Count VIII). Because of the dismissal of Counts I and II, the Court declined to exercise supplemental jurisdiction over the remaining state-law claims: “As a general principle, the unfavorable disposition of a plaintiff’s federal claims at the early stages of a suit, well before the commencement of trial, will trigger the dismissal without prejudice of any supplemental state-law claims.” Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995).

Global Tower Assets, LLC v Town of Rome, Maine, 2014 WL 3784233 (D. Maine 7/31/2014)