This post was authored by Olena Botshteyn, Esq.

An interim zoning ordinance put in place by the Township of Benton blocked the construction of a large-scale solar array, proposed by the Sandstone Creek Solar, LLC (“Sandstone”).

In 2016, Sandstone, a solar development company, decided to implement its plan to construct a solar facility in the Township of Benton (“the Town”), located in Eaton County (“the County”), Michigan. With this purpose, Sandstone started acquiring property interests in 850 acres of land in the Town. One of the landowners, Walters, joined Sandstone as a plaintiff in this case. At the time, land use and zoning in the town was regulated by the County Land Development Code, since the Town did not have a zoning ordinance in place. The County commenced the process of amending the Code to facilitate the anticipated construction of large-scale solar and added a chapter, which permitted solar systems in limited agricultural (LA) districts, by conditional use permit. The Town opposed the construction of the facility on agricultural land, and, specifically, prime farmland, which is considered to be highly productive. In response to the County’s amendments, the Town decided to enact its own zoning ordinance, permitting solar systems only in light industrial zones.

In October 2019, Sandstone submitted its application for a permit to the County. In November 2019, the Town adopted its interim zoning ordinance as a temporary measure, and directed its planning commission to prepare a final and permanent zoning ordinance. In addition, it imposed a moratorium on new permits for one year or before the new zoning ordinance is in place. Following these events, in December 2019, Walters submitted notice of intent to file a referendum petition, challenging the interim zoning ordinance. Simultaneously, Sandstone filed a complaint with the trial court, which further concluded that the Town implemented its interim zoning ordinance in consistence with Michigan Zoning Enabling Act (“MZEA”) and that such ordinance cannot be subject to referendum until a permanent zoning ordinance is implemented.

On appeal, the court concluded that the trial court did not err by determining that Benton Township’s interim zoning ordinance is not subject to a petition for referendum under the MZEA, stating that MZEA contains specific procedures for the enactment of interim and permanent zoning ordinances. The court went on to explain that the legislative purpose of interim ordinance is “[t]o protect the public health, safety, and general welfare … during the period required for the preparation and enactment of an initial zoning ordinance,” and for this purpose interim ordinances are allowed to take immediate effect. Such purpose would not be fulfilled if interim ordinances could be automatically suspended upon the filing of a referendum petition. Under the act, there is no hearing requirement for an interim zoning ordinance, and, according to the court, nothing else in the text of MZEA suggests that an interim zoning ordinance is subject to referendum.

The court further concluded that the trial court did not abuse its discretion in denying plaintiffs’ request for injunctive relief. In response to plaintiffs’ argument that interim zoning ordinance shall be rendered invalid due to the failure to follow the procedural requirements for its adoption, the court found that some actions by the township were not mandatory due to the permissive language of the act. Another argument concerned failure of the township to enact a new ordinance that would authorize the existing at the time planning commission to perform its duties. However, the court concluded that since the act provides no penalty or remedy if such action is not taken, the failure to adopt a new ordinance shall not render the planning commission a nullity. Finally, the court confirmed that the trial court did not abuse its discretion by finding that plaintiffs failed to demonstrate that they would suffer irreparable harm if an injunction was not issued. Sandstone acquired the property rights, knowing that the county zoning ordinance did not provide for solar energy systems, and the interim ordinance enacted by the township did not deprive Sandstone of its property interests that existed at that time.

With regard to the dismissal of the complaint, the court ruled that the trial court erred in dismissing Count II, seeking declaratory judgment of an improperly imposed moratorium, and Count III of plaintiffs’ complaint, stating that the interim zoning ordinance imposed exclusionary zoning, without notice and hearing, since neither party specifically addressed the merits of those Counts. The court therefore reversed the trial court’s dismissal of Counts II and III and remanded to the trial court for further proceedings.

Sandstone Creek Solar, LLC and Gary Walters v. Township of Benton, 2021 WL 400585(MI App. 2/4/2021)

This post was authored by Matthew Loescher, Esq.

In 2004, petitioner purchased certain commercial property in the manufacturing district of the Village of East Hampton. The property was improved with a 6,600–square–foot commercial building, constructed in 1988, as well as a parking lot with 23 parking spaces. In 2016, the Village notified the petitioner that it was in violation of the certificate of occupancy, since the building was altered to contain six office units, but was only permitted four according to the certificate of occupancy. Thereafter, the petitioner sought an area variance from the Zoning Board of Appeals of the Village to permit it to retain the additional two office units, without having to create additional parking. The Board determined that the petitioner’s creation of additional units within the subject building constituted an intensification of its use compelling compliance with the amended parking regulations. As such, the Supreme Court denied the CPLR article 78 petition and dismissed the proceeding, and the petitioner appealed.

The court found that contrary to the petitioner’s assertion, the Board’s interpretation of the Village Code, that the addition of two units within the subject building constituted an “intensification,” was “neither irrational, unreasonable, nor inconsistent with the governing statute,” and therefore must be upheld. The record reflected that the Board properly rejected the petitioner’s contention that its intensification only required it to comply with that provision of the amended parking regulations requiring two additional parking spaces for every additional, unauthorized unit within the building, since that contention was not supported by a review of the Village Code. Accordingly, the Board properly determined that the building was required to have 43 parking spaces, and that because it only had 23 parking spaces, the variance sought was substantial.

Parsone, LLC v Zoning Board of Appeals of the Village of East Hampton, 2021 WL 480858 (NYAD 2 Dept. 2/10/2021)

This post was authored by Matthew Loescher, Esq.

This appeal involved a claim challenging the City of Minneapolis’s 2040 Comprehensive Plan, which alleged that adoption of the Plan violated Minnesota environmental law. Prior to the vote of the Minneapolis City Council to approve the Plan, appellants Smart Growth Minneapolis, Audubon Chapter of Minneapolis, and Minnesota Citizens for the Protection of Migratory Birds filed a complaint against the City, challenging the Plan under Minnesota Environmental Policy Act (MEPA). The district court held that since comprehensive plans are specifically exempt from environmental review under rule 4410.4600, comprehensive plans are likewise exempt from judicial review under Minnesota Environmental Rights Act (MERA). The district court dismissed Smart Growth’s claim based on a second, independent conclusion: that Smart Growth “failed to establish a prima facie showing under MERA.” The court of appeals affirmed this holding.

On appeal, the City contended that allowing Smart Growth’s MERA challenge to proceed would create “irreconcilable inconsistency” between MERA and MEPA because Smart Growth could obtain environmental review of the Plan under MERA that it could not obtain under MEPA. The City further claimed that MERA’s more general provision was superseded by MEPA and its exemption rule because MEPA was passed later in time and specifically addressed environmental review of activity by governmental units. The court found that it was not inconsistent to recognize that a MERA challenge might result in environmental review that would not be required under MEPA, given that MERA was broader in scope than MEPA and applied to “any conduct” of “any person”—including municipal governments. Furthermore, the MEPA did not contain any express language exempting it from the reach of MERA, but instead expressly limited the application of its provisions, including the administrative rules promulgated under it, to only that Act. The court therefore held that the district court erred in concluding that Smart Growth’s claims were barred under Minnesota law, because rule 4410.4600 did not exempt comprehensive plans from environmental review under MERA.

Smart Growth claimed that a presumed full build-out of the plan was likely to materially adversely affect the environment in a number of ways, such as increasing the rate and volume of stormwater runoff, threatening sanitary sewer systems and water supply, reducing wildlife habitat, and diminishing air quality. Accepting all of Smart Growth’s allegations as true and construing all reasonable inferences in Smart Growth’s favor, the court found these allegations were sufficient to allege causation at the Rule 12.02(e) stage. Accordingly, the district court erred in dismissing Smart Growth’s complaint.

State of Minnesota v City of Minneapolis, 2021 WL 485400 (MN 2/10/2021)

This post was authored by Matthew Loescher, Esq.

The petitioners are owners of residential property located in Putnam Valley. David Frazer and Alice Soloway are owners of residential property located adjacent to the petitioners’ property. Pursuant to chapter 144 of the Code of the Town of Putnam Valley – which governs freshwater wetlands, watercourses, and waterbodies – the Town of Putnam Valley Wetlands Inspector, issued a permit waiver to Frazer for the construction of a hot tub in a wetland buffer, subject to conditions. The Town of Putnam Valley Zoning Board of Appeals issued a determination granting the application of Frazer and Soloway for area variances related to the construction of the hot tub, subject to conditions. The petitioners commenced this proceeding pursuant to CPLR article 78 to annul the determinations of the Wetlands Inspector and the ZBA.

 The court found that contrary to the petitioners’ contention, the Wetlands Inspector considered drainage issues related to the hot tub and any adverse impact the hot tub might have on the wetlands, the wetlands buffer, and the lake, as evidenced by the fact that the permit waiver was specifically conditioned on the hot tub not discharging to the wetland or wetland buffer area. Additionally, the Wetlands Inspector noted that the work was to be conducted in a previously disturbed area. As such, the record reflected that the ZBA engaged in the required balancing test and considered the five relevant statutory factors in granting the application for area variances related to the hot tub. Accordingly, the court denied the petition and dismissed the proceeding on the merits.

 Bernstein v Putnam Valley Zoning Board of Appeals, 2021 WL 484034 (NYAD Dept. 2/10/2021)

This post was authored by Matthew Loescher, Esq.

Wireless Defendants applied for approval from the Town of Carmel Planning Board to build two wireless telecommunications facilities: one on Dixon Road and one on Croton Falls Road. The Board denied the applications, and the Wireless Defendants filed suit in federal court alleging that the denial of their applications was unlawful under the Telecommunications Act of 1996 (“TCA”). The lawsuit ended with a settlement agreement in which the Town agreed to issue permits for the Dixon Road facility and a facility to be located on Walton Drive rather than Croton Falls Road. In May 2020, U.S. District Court Judge Philip M. Halpern entered the stipulation of settlement and consent order memorializing the agreement.

Plaintiffs, owners of property near the proposed Walton Drive facility, brought an Article 78 proceeding in state court against the Town Defendants, the Wireless Defendants, and Maple Hill Estates Homeowners Association, Inc., to invalidate the consent order on various state law grounds. Defendants removed the action, asserting federal question jurisdiction, and Plaintiffs filed a motion to remand or, alternatively, a motion for a preliminary injunction enjoining construction of the Walton Drive facility.

Plaintiffs first argued that the case needed be remanded to state court because they only pleaded state law claims and the federal court lacked subject matter jurisdiction. Defendants argued that Plaintiffs framed the issues in the Complaint as state law issues to avoid federal jurisdiction. Defendants further claimed that “Plaintiffs’ case could easily have been brought in federal court had the complaint been well-pleaded with no artful omissions of the TCA issues involved.” The court rejected this position, noting that the “TCA does not support a private right of action to persons adversely affected by a local zoning board’s decision to allow the construction of a wireless cell antenna.” As Plaintiffs’ state law claims did not raise a federal issue, and federal subject matter jurisdiction did not arise from a federal preemption defense, the artful pleading rule did not apply and the court therefore lacked subject matter jurisdiction over Plaintiffs’ claims.

Notwithstanding the above, Defendants argued that removal was proper because “Plaintiffs were using their pleading to collaterally attack a federal court order.” The court found that the mere fact that Plaintiffs’ claims concerned a federal court order and sought to invalidate it was not a proper basis for removal. Even assuming arguendo that Plaintiffs could have brought Rule 60(b) motion in the prior federal action as third parties who were strongly affected by the judgment, Defendants failed to offer any authority or argument establishing that they were required to do so. Accordingly, Plaintiffs’ motion to remand was granted, and Plaintiffs’ alternative motion for a preliminary injunction and the Wireless Defendants’ motion to dismiss was denied as moot.

Gondolfo v Town of Carmel, 2021 WL 431148 (SDNY 2/8/2021)

This post was authored by Matthew Loescher, Esq.  

Appellant Clayland Farm Enterprises, LLC owned approximately 106 acres of waterfront property adjacent to the Chesapeake Bay in the Village of Royal Oak in Talbot County, Maryland. The Camper family first acquired the property in 1969, and the Camper siblings inherited the property and formed Clayland after their mother died in 2002. Since 1969, the Camper family has used the property for farming and has leased portions for residential use. This case arose from three local zoning ordinances designed to limit new residential development pending the completion of a comprehensive rezoning plan. The district court held that the ordinances were constitutional under the Takings Clause and the Due Process Clause and that Clayland’s equitable claims were moot. Clayland appealed in this case.

The court first analyzed whether Bill Nos. 1214 and 1257 constituted a taking. Prior to the County enacting Bill No. 1214, the property was valued at $3,250,000; after the County enacted Bill No. 1214, the property was valued at $1,950,000. Thus, after the County enacted Bill No. 1214, the property decreased in value by $1,300,000, or approximately 40 percent. Nevertheless, the court noted that it had previously found that a hypothetical 83 percent diminution in value was insufficient to establish a regulatory taking. Furthermore, under Bill Nos. 1214 and 1257, Clayland could subdivide any existing parcel into one additional lot, develop at one unit per two acres, or proceed with the approved six-lot Darby Farm subdivision. The record further reflected that the County had planned to review and revise its 2005 Comprehensive Plan before Clayland even had the opportunity to begin development. Accordingly, the court held the balance of the Penn Central test ultimately favored the County.

Next, Clayland contended that Bill Nos. 1214, 1257, and 1229 violated its substantive due process rights. The  court rejected this contention, finding that Clayland could not establish that the Bills limiting development—Bill Nos. 1214 and 1257—deprived it of a property interest because Clayland lacked any relevant, cognizable property interest. Even assuming that the tier map designations deprived Clayland of a cognizable property interest, the court found that the tier map was rationally related to the County’s zoning powers. As such, the County enacted Bill No. 1229 pursuant to and in conformity with Maryland’s Septics Law.

Clayland lastly claimed that the district court erred in dismissing as moot its remaining claims seeking declaratory and injunctive relief. However, as those claims all sought prospective equitable relief on laws no longer in effect, the equitable claims were moot and there was no live controversy.

Clayland Farm Enterprises, LLC v Talbot County, MD, 2021 WL 419460 (4th Cir. CA 2/8/2021)

This post first appeared on Ancel Glink’s Municipal Minute Blog and is reposted with permission. See: Seventh Circuit Rejects Developer’s Claims Against City Manager ~ Municipal Minute (

In 2018, the City of DeKalb approved a Preliminary Development Incentive Agreement (PDA) with a developer regarding potential financing for the redevelopment of property in the City. The PDA provided that if the developer met certain contingencies specified in the PDA, the City would provide an approximate $2,500,000 Development Incentive in Tax Increment Financing (TIF) funding. The PDA imposed certain conditions and obligations on both parties before the agreement was final and prior to funds being distributed to the developer. 

After conducting due diligence into the developer, the City Manager recommended that the City terminate the PDA, and the City Council unanimously voted to terminate the PDA. The developer then filed a lawsuit claiming, among other things, that the City Manager violated the developer’s First and Fourteenth Amendment rights. After the district court dismissed Fisk’s federal claims for failure to state a claim with prejudice, the developer appealed to the Seventh Circuit Court of Appeals. 

The Seventh Circuit rejected the developer’s First Amendment retaliation claim against the City Manager. The developer had claimed that the City Manager blocked a development incentive and retaliated against it because the company’s attorney member exposed unflattering information about the City Manager and named him in discovery in an earlier, unrelated lawsuit. The Seventh Circuit found that this claim had been properly dismissed by the district court because the developer did not engage in protected activity. The Seventh Circuit also found that the developer had waived any retaliation claim based on the exercise of free speech rights because it had not raised that claim with the district court. The Seventh Circuit also rejected the developer’s procedural due process claim since the developer had no constitutionally protected property interest because the PDA only provided “a right to acquire property” and not a right in the property itself. Lastly, the Seventh Circuit rejected the developer’s equal protection claim, finding that the City Manager had a rational basis for recommending that the developer not receive financing under the PDA.

145 Fisk, LLC v Nicklas, 2021 WL 24881 (7th Cir CA 1/26/2021)

Posted by: Patricia Salkin | February 5, 2021

OH Appeals Court Finds Challenge to Amended Zoning Resolution was Moot

This post was authored by Matthew Loescher, Esq.

Thornwood, LLC owned property directly adjacent to residential property owned by Appellant. In November of 2017, Appellant brought the construction of earthen mounds on Thornwood’s property to the attention of Liberty Township, complaining the mounds violated the township zoning ordinance because Thornwood failed to obtain a zoning permit prior to their construction. Appellant claimed the earthen mounds were “structures” within the meaning of the zoning resolution and were not incident to an agricultural purpose, and were therefore impermissible absent a zoning permit. Lobert Township Board of Zoning Appeals held the township did not have the authority to regulate their construction, and the trial court dismissed the appeal as moot, finding that under the current zoning resolution, Thornwood could not be compelled to secure the township’s approval for the mounds currently existing on its property.

 On appeal, the court found the Appellant’s argument that the amended resolution was not adopted in accordance with Ohio law, while not a constitutional claim, was a challenge to the legality of the amendment as a whole on its face, and not a challenge to the application of the amended resolution. As such, the court held the claim was not appropriate for an administrative appeal.

Appellant next contended the trial court erred in applying the amended zoning resolution retroactively in order to find his appeal moot. Here, Appellant had no vested property interest in the property at issue in the instant case, which was his neighbor’s property. Additionally, the amended resolution did not create a new burden, duty, obligation, or liability; instead, it lessened a burden on the affected landowners in the township. Finally, the court held that the trial court did not apply the new resolution retroactively to find the action moot, but instead that the prospective application of the statute rendered the action moot, since Appellant would have no remedy even if he prevailed on the merits of his appeal.

Sunderland v Lobert Township Board of Zoning Appeals, 2021 WL 463635 (OH App. 2/5/2021)

This post was authored by Matthew Loescher, Esq.

Cornerstone owned a property located in a residential area, zoned as an R-2 medium density zoning district. The property consisted of a single-family dwelling, which was a permitted use in the R-2 zoning district. Cornerstone sought to utilize the property to provide residential living in a single-family setting to those who were disabled, as defined by the Fair Housing Amendments Act of 1988 and in need of a residence to live independently as they recovered from drug and/or alcohol addiction. As such, Cornerstone filed an application with the City’s Zoning Officer seeking an occupancy permit for a single-family dwelling on the property. The Board failed to conduct a hearing within 60 days as required by the Pennsylvania Municipalities Planning Code (MPC), and Cornerstone filed a complaint in mandamus against the Board seeking a deemed approval. Additionally, Cornerstone provided public notice of the deemed approval through newspaper advertisements and a posting on the premises. The City responded by filing a land use appeal with the trial court. The trial court found in favor of Cornerstone and the City appealed.

On appeal, the City argued that the trial court erred by failing to apply a de novo standard of review. The court found that a plain reading of the trial court’s decision reflected that findings of fact and conclusions of law were made in its determination that “the proposed use fits the definition of a single-family use.” The trial court also explicitly stated in the first sentence of its opinion that it was required to make findings of fact and conclusions of law because of the deemed approval.

As the Ordinance explicitly stated that the restrictions in the definition of family would not apply to those who are disabled/handicapped under the Fair Housing Act, the restriction against five unrelated persons living together did not apply. With regard to Cornerstone charging residents for expenses, the court found that the fact that Cornerstone would charge a fee did not transform its use. Here, Cornerstone stated that it would charge “expenses as necessary.” The court found that the charging of expenses as necessary alone did not indicate a profit motive, and paying a fee was akin to adult family members contributing to a household. Moreover, the definition of family stated that a family could be “up to five unrelated individuals who maintain a common household.”

The City lastly contended that conclusions and allegations in Cornerstone’s application were insufficient to prove an individual was handicapped under the Fair Housing Act, and that actual evidence must be presented. Here, however, as the City failed to request the evidence it deemed necessary, and had the opportunity to obtain additional evidence before the trial court, the City was found to have waived its argument that the evidence in this case was insufficient. Accordingly, the order of the trial court was affirmed.

City of Clairton, PA v Zoning Hearing Board of the City of Clairton, PA, 2021 WL 382963 (PA Cmwlth 2/4/2021)

This post was authored by Matthew Loescher, Esq.

Waring filed an application with the Biloxi Planning Commission to amend the district zoning map to rezone a 4.4-acre land parcel at the intersection of Rue Sanchez and Highway 67 from low[1]density single-family residential to neighborhood business. Waring sought the rezoning to build a convenience store and gas station at the intersection. The City of Biloxi denied Waring’s rezoning request, and the Harrison County Circuit Court affirmed the City’s decision on appeal.

On appeal Waring contended the City’s decision was arbitrary, capricious, and not supported by substantial evidence. In their decision, four of the six City Council members explained their reasons for denying Waring’s rezoning request. The first City Council member voted to deny the application due to the objections the concerned citizens had raised in opposition to the rezoning request. Another council member found rezoning was unwarranted “when he considered the lack of change to the neighborhood’s character in conjunction with the requirement to prove a public need for the rezoning.” The third council member concluded that no public need existed for the convenience store at the proposed location and that other possible locations for the convenience store existed. The fourth council member noted that no commercial development had really occurred in the area at issue for about the past fifteen years, and found that no compelling public need existed for a convenience store and gas station at that particular site.

Since the record contained substantial credible evidence to support the City Council’s denial of Waring’s application, the court found no error in the circuit court’s determination that the City Council’s decision was fairly debatable and was neither arbitrary nor capricious. Accordingly, the circuit court’s judgment upholding the City Council’s rezoning decision was affirmed.

Warning Investments v City of Biloxi, MA, 307 So.3d 1257 (MS App. 12/8/2020)

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