From the AG’s Website:

In July 2013, New York State Attorney General Schneiderman launched his Land Banks Community Revitalization Initiative, which is dedicating a portion of the funds awarded to New York under the National Mortgage Settlement to support legally designated Land Banks, formed under the New York State Land Bank Act of 2011. In the first round of grant awards, which was announced on October 29, 2013, the Attorney General awarded $13 million to eight land banks statewide, including:

The Buffalo Erie Niagara Land Bank Corporation, which was awarded $2.087 million;
The Rochester Land Bank Corporation, which was awarded $2.78 million;
The Greater Syracuse Property Development Corporation, which was awarded $3 million;
The Chautauqua County Land Bank Corporation, which was awarded $1.5 million;
The Newburgh Community Land Bank, which was awarded $2.45 million;
The Suffolk County Land Bank Corporation, which was awarded $675,000;
The Capital Region Land Bank, which was awarded $150,000; and
The Broome County Land Bank, which was awarded $150,000.

In his second round of funding, the Attorney General’s Initiative will be making up to $20 million available to land banks statewide. Applications for this second round of funding are available now.

The projects selected for funding will carry out a range of vital community development activities, including demolition of blighted, vacant, and abandoned homes; acquisition and renovation of vacant homes, including remediation of environmental hazards; resale of renovated properties as affordable housing for low- and moderate-income families; acquisition of vacant land that will be transferred to existing community residents who will maintain and repurpose the underutilized open space; and environmental pre-development studies and analyses that will eventually lead to remediation and redevelopment of brownfield sites. Proceeds from the resale of renovated properties will go back to the land banks and allow them to continue their work.

As stated in the law, “there is an overriding public need to confront the problems caused by vacant, abandoned and tax-delinquent properties” that resulted in large measure from the foreclosure crisis. Communities can use Land Banks as a tool to “facilitate the return of vacant, abandoned and tax-delinquent properties to productive use… for the benefit of the public and the State as a whole.” The Attorney General Office’s Community Revitalization Initiative Request for Applications will encourage the utilization of funds for “foreclosure relief and housing programs” and “community blight remediation,” as intended under the terms of the National Mortgage Settlement.

In total, the Community Revitalization Initiative will provide Land Banks in New York State with $33 million from the Attorney General’s Office to promote community revitalization efforts. Additionally, land banks have used Attorney General Schneiderman’s funding to leverage additional resources from both private and public sources in order to expand their community revitalization efforts. A conservative estimate suggests that the land banks will be able to access a combined total of more than $21 million in other public and private funding over the next two years.

All applications for first-round funding must be submitted electronically to the Attorney General’s Office by 4 PM on September 19, 2014.

A mandatory conference call hosted by the Attorney General’s Office will be held for all applicants on August 20, 2014.

The call-in number and call details will be posted on this web page no later than August 10, 2014.

Written questions may be submitted in advance of the call. All questions regarding this RFA should be submitted by email to Dina Levy at Dina.Levy@ag.ny.gov. Please include “Land Bank RFA” in the subject line when submitting questions.

http://www.ag.ny.gov/feature/land-bank-community-revitalization

Defendant 175 Paramus Road Real Estate, L.L.C., filed an application for variances and site plan approval with defendant Board of Adjustment of Paramus. The application was for a three-story Alzheimer’s facility for a maximum of 126 residents. The application stated that the building site near the frontage of the property on Paramus Road would be graded and raised above the 100–year floodplain. Because the proposed facility would contain more than fifteen beds, the applicant requested a(d)(3) variance, for deviation from the conditions applicable to a permitted conditional use. On November 29, 2012, the board adopted a twenty-one page resolution implementing and explaining its decision. The resolution reviewed in detail the testimony and evidence presented at the hearing, and it acknowledged the questions and concerns raised by plaintiff Krousos and one other person. The board concluded that the application met the requirements for use, deviation, and height variances under N.J.S.A. 40:55D–70(d)(1), (3), and (6), and for bulk and dimensional variances under N.J.S.A. 40:55D–70(c)(1) and (2). The board approved the variances, design waivers, and site plan, setting forth specific conditions of the approval.

Plaintiffs filed an action in lieu of prerogative writs in the Law Division pursuant to Rule 4:69 to set aside the board’s decision. Their complaint alleged that the proofs were insufficient for the granting of the variances and that the board had exceeded its statutory authority by, rezoning the property to permit the development of a prohibited use. The Law Division affirmed the board’s decision and entered an order on July 12, 2013, dismissing plaintiffs’ complaint with prejudice.

On appeal, plaintiffs argued that the resolution of approval adopted by the board was insufficient and could not sustain the variances that were granted, and that the applicant failed to comply with N.J.S.A. 40:55D–10(b) in that all maps and documents in support of the application were not on file with the board and available for examination by the public at least ten days before the board’s vote of approval on September 20, 2012.

In this case, the property was so spacious compared to the required zoning regulations that it far exceeded the dimensional minimums of the zoning regulations. The court also noted that the public benefit was the much-needed assisted living facility, and the Plaintiff’s failed to show any diminishment in property value. This court therefore found that the board acted within its discretionary authority in concluding that the applicant’s property can accommodate a large assisted living home for persons afflicted with Alzheimer’s disease and the employees and guests who will attend to their needs at the facility.

Krousos v Zoning Board of Adjustment of Borough of Paramus, 2014 WL 3628862 (NJ Sup. Ct. unpub. 6/17/2014)

The Hales were owners of a house on agricultural land about one mile southeast of a shooting range in Ward County, which is 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 similar to N.D.C.C. § 42–01–08 and 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.

As to the denial of joinder issue, the court concluded that the decision was not arbitrary, unconscionable, or unreasonable, was not a misapplication of the law, and was the product of a rational mental process leading to a reasoned determination. Thus, the court did not abuse its discretion in denying the Hales’ request to allow joinder of their neighbors as parties to this action.

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

The opinion can be accessed at: http://www.ndcourts.gov/court/opinions/20110171.htm

The Applicant in this case filed for a conditional use permit to build general merchandise store on the corner of the intersection located on Route 7 and Monkton Road in Ferrisburg, and local citizens (Opponents) appealed the permit granted to the Applicant. The trial court however found that the Applicant’s proposed project complied with all of the general and specific conditional use standards of the ordinance and the statute promulgated by the legislature. The trial court further added that the Appellant should install and maintain a crosswalk across its parking lot, but declined the Opponent’s suggestion to increase the landscape, relocation of the parking lot and the entrance to the building as the court found that such changes would cause potential safety issue and would provide little benefits. Opponents then appealed to the Supreme Court of Vermont.

On appeal, the Court found that it was not improper to shift the burden of proof to show an adverse impact, as the Applicant met its burden in showing that the proposal met the conditional use criteria and the Opponents were unsuccessful in rebutting the Applicant’s proposal. The court went on to find that the Opponents failed to provide evidence of harm from the commercial development, and that the trial court did not err in requiring the Opponent to show an adverse impact to the community. In regards to the Opponents’ argument against the legal standard applied by the trial court, the supreme court found that the trial court did not err in using the definition of undue adverse impact from the Quechee test, as the trial court merely used the definition of undue adverse impact from the case to form an interpretation of the adverse effect language in the Bylaws. As to the Opponents final argument as to whether the store was prohibited in the district due to the true usage of the store, the Curt found that the Applicant testified that the store would be a general merchandise store, the store’s proposed use as a discount retailer fell within the retail sales definition provided in the ordinance, and the definition provided in the ordinance was intended to be inclusive rather than restrictive.

In re Group Five Investment CU Permit, 93 A.3d 111 (VT 2/14/2014)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2013-009.html

The Applicant applied for a zoning permit to alter the exterior of his house by raising the roofline to match a previously installed roofline, changing the roof and replacing the windows, but the City’s Department of Planning and Zoning denied his application because the building was listed on the Vermont State Register of Historic Places. The City planner however directed the applicant to the Design Advisory Board (DAB) where it was suggested that he redesigned the roofline, but the revised drawings remained unsatisfactory to the DAB. Applicant then appealed to the Development Review Board where the Board upheld the DAB’s decision. The Applicant then met the City twice to attempt to resolve the design issue, but eventually appealed to the environmental division after appealing the City’s denial to the development Review Board. The Environmental division in return denied the applicant’s motion for summary judgment, finding that the application failed to comply with historic preservation standards of the City’s zoning ordinance.

In reply to the City’s summary judgment motion for timely notice, the supreme court of Vermont found that the Environmental Division properly awarded summary judgment to the City because the City planner notified the applicant within five days of receiving his application that the permit could not be issued. Applicant’s claim that the City’s zoning ordinance should not have been admitted to the Environmental Division due to missing documents was also denied by the Court as it found that the Environmental Division did not err by reopening the evidence for a limited purpose of introducing a complete copy of the zoning ordinance. The Court concluded by finding that the Environmental Division’s decision to prevent the changes to the historic building was reasonable, as the focus on the exterior alterations outweighed the concerns of the interior use unless the change in structure changes the intensity of the interior, and the applicant’s concerns for the height issues within the bathroom did not meet this burden.

In re Bjerke Zoning Permit Denial, 93 A. 3d 82 (VT 1/24/2014)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2013-108.html

The Bowens (Plaintiffs) designed an accessory building with the help of U.S. Architects. They were issued a building permit and a certificate of occupancy. The Barnettes (Defendants), neighbors, complained to the Carmel Department of Community Services (DCS) about the height of the building. The DCS then notified and advised the Plaintiffs that their building was not in compliance with the Carmel Zoning Ordinance, and advised them to apply for a variance with the Carmel Board of Zoning Appeals (BZA). Plaintiffs then followed instructions and applied for a variance but the request for variance was denied by the BZA. The Plaintiffs continued to operate in their building without appealing either determinations made by the DCS or BZA (The City), and ultimately decided o file a complaint for declaratory relief against the City.

The City and the Defendant in return filed a motion for judgment on the pleadings based on the Plaintiff’s failure to exhaust their administrative remedies, but the trial court found that the City violated the Plaintiffs’ due process rights by revoking their license without giving them the opportunity to be heard, and ordered the City to reissue the certificate of occupancy or provide compensation to the Plaintiffs. The trial court further concluded that U.S. Architects lacked standing to bring an action against the defendants because it had not suffered a denial in the property interest or incur an actual injury.

Defendants in return appealed while The City decided not to file a notice of appeal and Plaintiffs in return claimed that the appeal was moot because the Defendants could not enforce an ordinance on the City’s behalf. The Court however concluded that the appeal was not moot because a party that appeared previously on the record in a lower court proceeding also has the right to appear in appellate proceedings. The court went on to find that the Plaintiffs did in fact fail to exhaust their administrative remedies, and that The City therefore did not violate the Plaintiffs’ due process rights. In Regards to the U.S. Architects contention that the trial court erred in determining that it could not bring a declaratory action judgment, the court found that the trial court’s decision should be affirmed because an injury suffered to U.S Architects would be derivative of that suffered by the Plaintiffs, and because U.S. Architects did not receive advisory opinions or guidance that would effect their designing of future buildings.

Barnette v US Architects, LLP, 2014 WL 3695257 (IN App. Ct. 7/25/2014)

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/07251402tac.pdf

The Moody County Board of Adjustment granted a conditional use permit to allow a concentrated animal feeding operation in Moody County. Shawn Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson petitioned the circuit court for a writ of certiorari challenging the board of adjustment’s decision to grant the conditional use permit. Petitioners argued that the statutory scheme governing appeals to circuit courts from county-level decisions on conditional use permits violated their equal protection rights. The circuit court denied the writ and this appeal ensued.

After finding that the Moody County Board of Adjustment had both appellate and original jurisdiction, the court applied the traditional two-part test for claims that a statute violates equal protection: (1) does the statute create an arbitrary classification among citizens, and (2) “if the classification does not involve a fundamental right or suspect group,” is there a rational relationship “between a legitimate legislative purpose and the classification created”? On the first prong, the court concluded that, “[w]hen applied, the statute [SDCL 11–2–17.3] gives every county in South Dakota the same opportunity to choose which entity they would like to place the conditional use authority in.” Thus, the court found that the Legislature did not create a classification. The court determined that a legitimate legislative purpose existed in the allowance of flexibility to each county on zoning issues and that differing standards of review are rationally related to that purpose. It concluded that the petitioners failed to meet their burden that there is no rational relationship between the legitimate legislative purpose and the classification created and denied their petition for a writ of certiorari.

Tibbs v Moody County Board of Commissioners, 2014 WL 3368044 (SD 7/9/2014)

The opinion can be accessed at: http://ujs.sd.gov/uploads/sc/opinions/26897.pdf

In March of 2000, Sherman applied to the Planning Board for subdivision approval so that he could use and develop MareBrook. The proposed project would include 385 units of housing as well as “an equestrian facility, baseball field, tennis courts, clubhouse, on-site restaurant and a golf course that wove through the property.” When Sherman completed his purchase of the property in 2001, it was already zoned for residential use. In October 2003, the Planning Board “deemed complete” Sherman’s Draft Environmental Impact Statement (“DEIS”). In 2003, the Town Board approved the first in a series of changes to its zoning regulations. When Sherman learned of the new requirements early the next year, he was assured by the Town Planner that he could meet all its requirements with only “a modest amount of additional work” and that he would soon obtain preliminary approval. Sherman finished revising his plan, but the Town had again amended its zoning regulations. It took him approximately eleven months to once again revise his application, but one month later the Town amended its zoning law for a third time without informing Sherman in advance. Sherman revised his application again, and in February 2006, the Town for the fourth time changed its zoning law without warning Sherman. Sherman responded by submitting yet another revised plan, this one in March 2007. That same month, the Town changed its zoning for the fifth time, and it once again did not let Sherman know these changes were coming. Sherman then filed suit in federal court. The District Court concluded that Sherman had failed to show that seeking a final decision from the Town would be futile, and Sherman timely appealed.

As to the ripeness issue, Sherman conceded that the Town has not reached an official final decision, but argued that he did not need to meet this requirement because seeking a final decision would be futile. The court reasoned that requiring Sherman to persist with this protracted application process to meet the final decision requirement would implicate concerns about disjointed, repetitive, and unfair procedures.

In regards to the takings claim, the court weighed the three Penn Central factors to determine whether the interference with property rises to the level of 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 first prong was satisfied because the Town’s actions effectively prevented Sherman from making any economic use of his property. The second was also found to be satisfied since when Sherman bought MareBrook, it was already zoned for residential use, and his expectation was that he would begin recouping that investment after a reasonable time to get the Town’s approval on at least some form of development. The final prong was satisfied because the Town’s alleged conduct was unfair, unreasonable, and in bad faith. Thus the court held that Sherman stated a non-categorical takings claim and remanded it to be heard on the merits in District Court.

Sherman v Town of Chester, 752 F3d 554 (2nd Cir. 5/16/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/us-2nd-circuit/1666765.html

The Teton County Board of County Commissioners and Teton County Planning Director (“Teton County” or “County” or “Planning Director”), issued a Notice to Abate to Roger Seherr–Thoss (“RST”). The County found that RST’s gravel business violated the County’s Land and Development Regulations (“LDRs”) because the business had expanded in volume and footprint since the LDRs were adopted in 1978. Following RST’s appeal to the Teton County Board of County Commissioners (“Board”), a contested case hearing was held and the Board adopted the hearing officer’s Recommended Findings of Fact, Conclusions of Law, and Order with minimal amendments. The Order recognized that RST’s historical gravel crushing and extraction operations were grandfathered under Wyo. Stat. Ann. § 18–5–207. However, the Order attempted to reduce RST’s operation to its 1978 extent. It required RST to reduce his operation’s footprint to three acres, to submit a reclamation plan to the County within sixty days, to post a surety bond consistent with the LDRs within sixty days, to reduce his volume of extracted gravel to 15,000 cubic yards or 17,000 tons per year, and to limit his operating hours to Monday through Friday from 7:00 a.m. to 5:00 p.m. RST appealed the Board’s Order to the Teton County District Court, which affirmed the Board’s decision.

The court analyzed this claim under the doctrine of diminishing assets which sets forth: 1) the land owner must prove that excavation activities were actively being pursued when the Ordinance became effective; 2) the land owner must prove that the area that he desires to excavate was clearly intended to be excavated, as measured by objective manifestations and not by subjective intent; and, 3) the land owner must prove that the continued operations do not, and/or will not, have a substantially different and adverse impact on the neighborhood. The County did not dispute that RST had proved the first prong—that he was actively conducting a gravel operation at the time the County’s LDRs became effective. As to the second prong, the court disagreed with the Board’s finding that because RST did not “cordon off” additional land on his ranch as designated expansion area, he necessarily did not intend to expand. Because the hearing officer and the Board cited no authority for this conclusion nor did they point to some evidence in the record that this is common practice within the gravel extraction industry. RST offered photos and testimony demonstrating its intent to expand, thus the court found the second prong was satisfied. The third prong was also satisfied since under the Wyoming Environmental Quality Act (“EQA”) an interested person can potentially trigger a contested case hearing by objecting to the proposed expansion. Thus, the EQA provides a mechanism for determining whether an expanded gravel operation will have a substantially different and adverse impact on the neighborhood.

Accordingly the court reversed and remanded the district court, holding that RST may expand his gravel operation on the parcel on which it lies to the extent that it complies with the requirements of the EQA and its accompanying regulations.

Seherr-Thoss v Teton County board of County Commissioners, 2014 WL 2921818 (WY 6/25/2014)

The opinion can be accessed at: http://www.courts.state.wy.us/Documents/Opinions/2014WY82.pdf

Northeast Land Development, LLC (“Northeast Land”), agreed to purchase a parcel of land in the City of Scranton, Pennsylvania and then submitted a subdivision plan to the City for approval. The Planning Commission endorsed the plan, and a resolution was introduced in the City Council to negotiate a Development Agreement with Northeast Land. Before consideration of the resolution, one of the five members of the Scranton City Council (“Individual Defendants”) met with Northeast Land and told it Council would not vote on the Development Agreement until another developer made progress on an adjacent development. The Council tabled the resolution, which prevented Northeast Land from closing.

Subsequently, Northeast Land commenced a 1983 action against the City and the Individual Defendants for violation of its Fourteenth Amendment substantive and procedural due process rights. Northeast Land alleged that Council tabled its resolution because Northeast Land had not met the “outrageous conditions for approval” that were not required by law The District Court dismissed the Individual Defendants from the case, holding that their legislative immunity as Council members shielded them from the claims. Only the procedural due process claim against the City of Scranton survived.

With respect to the remaining claim, the District Court requested briefing as to whether there was a right to procedural due process for legislative action, and if not, whether Council’s decision to table the resolution was legislative action. The District Court held that tabling the resolution constituted legislative action for which Northeast Land did not have a procedural due process right. Northeast Land appealed.

On appeal, Northeast Land raised two arguments. First, citing a United States Court of Appeals, Third Circuit decision, Carver v. Foerster, 102 F.3d 96 (3d Cir.1996), in which the court held that legislative immunity applies only to individually named defendants, Northeast Land claimed the legislative immunity defense was unavailable to the City. The Court stated, however, that this argument was wrong because the District Court never suggested that the City was entitled to legislative immunity. Rather, the District Court dismissed Northeast Land’s claim against the City because procedural due process did not extend to legislative action. Next, Northeast Land contended the District Court erred by holding that the Individual Defendants were entitled to legislative immunity. Specifically, Northeast Land asserted that Council did not take legislative action for immunity purposes by deciding to table the resolution. The court did not need to reach the merits of this argument because, as the individual Defendants argued, Northeast Land’s procedural due process claim against them failed because there was no right to procedural due process for legislative action. Thus, Northeast Land’s claim turned on whether Council’s act was legislative. The court stated that an act is legislative in nature if it is both substantively and procedurally legislative. Acierno v. Cloutier, 40 F.3d 597, 610 (3d Cir.1994). Here, Northeast Land disputed only whether City Council’s decision to table the resolution was substantive legislative action. Specifically, the Council’s role to review proposed developments once the Planning Commission approved them. The court stated that an act was substantive legislative action if it involves either the enactment or amendment of legislation. The enforcement of already existing laws was not legislative action.

The Scranton Development Ordinance enumerated eleven conditions that Council can impose on a development agreement. Northeast Land argued that this ordinance cabined Council’s discretion as it had a purely administrative function of passing the resolution and had no power to review the Planning Commission’s decision or to impose conditions.
However, the court stated that this argument was contradicted by the same ordinance, which stated, “The development agreement shall be acceptable in content to the governing body.” Further, one of the eleven enumerated conditions was a broad catch-all, which authorized “any other lawful terms which the governing body may require to carry out the provisions of this chapter.”

Accordingly, the court agreed with the District Court’s observation that “to hold that the Scranton City Council had only a perfunctory role in the approval process, it would be required to construe the Development Ordinance in a manner that ignored its plain text. The Council’s decision to table the development agreement was quintessentially substantive legislative action.”

Northeast Land Dev., LLC v City of Scranton, 561 Fed Appx 135 (3rd Cir. Ct. App. 3/29/2014)