This post was authored by Matthew Loescher, Esq.  

Petitioners-plaintiffs commenced this hybrid CPLR article 78 proceeding and action for declaratory judgment and sought to annul the determinations of respondent-defendant Village of Williamsville Planning and Architectural Review Board issuing a negative declaration pursuant to article 8 of the Environmental Conservation Law – State Environmental Quality Review Act (“SEQRA”) – and granting site plan and architectural review approvals with respect to the proposed repurposing of an existing 57-residential unit, 24,780-square-foot building to an 87- unit mixed-income apartment complex.

Petitioners argued that the negative declaration should have been annulled because the Planning Board failed to complete a full environmental assessment form (“EAF”) pursuant to SEQRA. The court noted that while SEQRA’s procedural mechanisms are in place to ensure that SEQRA’s purposes are not thwarted, and strict compliance with procedural mechanisms is required, a misclassification does not always lead to the annulment of the negative declaration “if the lead agency conducts the equivalent of a type I review notwithstanding the misclassification.” Here, the record reflected that the Planning Board conducted a coordinated review and its meeting minutes, and the comprehensive 31-page negative declaration demonstrated that it thoroughly addressed the environmental factors that were necessary to issue the SEQRA negative declaration even upon a type I evaluation. In so doing, the court found that the Planning Board “identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination”. Accordingly, despite the Planning Board improperly classifying the Project as an unlisted action rather than as a type I action, the court held that this error did not warrant modification or reversal of the judgment.

Williamsville Residents Opposed to Blocher Redevelopment v Village of Williamsville Planning, 2022 WL 4591376 (NYAD 4 Dept. 9/30/2022)

This post was authored by Matthew Loescher, Esq.

Glenelg Country School (“GCS”) was granted an exclusive use easement by Appellees, a group of people who own strips of land adjacent to GCS’s property. GCS submitted a conditional use petition to the Howard County Hearing Examiner. The Hearing Examiner denied the petition and GCS appealed. GCS then filed for a Zoning Regulation Amendment to amend the Howard County Zoning Regulations regarding conditional uses. The Howard County Council limited GCS’s proposed amendments to the zoning regulations to apply only to private academic schools. After limiting the scope of the proposed amendments, the Howard County Council enacted GCS’s proposed Zoning Regulation Amendment as Council Bill No. 9-2020 (“CB-9”). The Appellees filed a Complaint for Declaratory Judgment against Howard County in the Circuit Court for Howard County, asserting that CB-9 was an illegal special law prohibited by Article III, § 33 of the Maryland Constitution. The circuit court granted Appellees’ Motion for Summary Judgment declaring CB-9 an illegal special law.

On appeal, Howard County claimed that the purpose of CB-9 was not just benefit GCS, but to benefit the entire class of private academic schools now and in the future. Nevertheless, the court found the law at the time of enactment provided only a benefit to GCS, by allowing it to gain approval of its conditional use petition. As such, the law’s underlying purpose was to confer a benefit on GCS, which weighed in favor of considering CB-9 an impermissible special law. Additionally, CB-9 had the “practical effect” of solely benefitting GCS – as GCS was the only private academic school that could take advantage of CB-9 at the time of its enactment, and would likely be the only private academic school to do so in the future.

The court next found that there was no need to require the Hearing Authority to consider conditional use petitions from private academic schools with exclusive easements because this could already be accomplished under the general law: the Howard County Zoning Regulations. The record reflected that in order to successfully submit a conditional use petition involving a property with an easement, the application required the easement holder to obtain written approval from the property’s owner. Thus, there was no public need for this amendment since private academic schools with exclusive easements could already successfully apply for a conditional use under the general law, provided they obtain written authorization from the property owners. As CB-9 was enacted solely to benefit GCS and had the practical effect of doing so, the court held CB-9 was an illegal special law, and affirmed the holding of the Circuit Court.

Howard County v McClan, 2022 WL 575584 (MD 2/25/2022)

This post was authored by Kevin Sun, Jacob D. Fuchsberg Touro Law Center

The Moores purchased a cabin in 2020 with a deck on the shore of Fish Trap Lake in Morrison County, Minnesota. At the time of the purchase, there was a large deck on the south of the property that required renovation. The deck was not legal and is within the shore impact zone. The Moores had completed many improvements to the deck and the outside area of the home without seeking the required permits. Following complaints the building inspector cited the Moores, and they decided to replace the deck with a new one that extended 10 additional feet into the zone, rather than fixing the old unpermitted deck. The Moores requested an after-the-fact variance. The Board asked the Moore to remove the structure.

The local zoning ordinance mandates that the board consider six mandatory conditions when deciding if enforcement of the ordinance would cause a practical difficulty to the landowner. Accordingly, during the hearing, the Board must find each of the six conditions to be met in order to grant a variance. Further, the Board could also include eight additional discretionary factors that they may consider. Specifically, the local ordinance provides that the Board of Adjustment may not grant an application for a variance unless it determines that the strict enforcement of this ordinance would cause a practical difficulty, because of circumstances unique to the individual property under consideration and that the granting of such variance(s) will be in keeping with the spirit and intent of this ordinance.

Specifically, the Board of Adjustment must find that each of the following conditions are met:

a. Is the request in harmony with the general purpose of the Morrison County Land Use Ordinance and Comprehensive Plan; and

b. Is the applicant proposing to use the property in a reasonable manner not permitted by the Land Use Ordinance; and

c. Will the issuance of the variance maintain the essential character of the locality; and

d. Is the alleged practical difficulty due to circumstances unique to the property; and

 e. Is the need for the variance created by actions other than the landowner or prior landowners; and

f. Does the alleged practical difficulty involve more than just economic considerations.

During the hearing, the Board considered each of these factors and determined that the Moores had not met each of the above factors as required. Upon review, the appeals court concluded that the Board did not act in an arbitrary fashion, having considered each factor, and therefore upheld the denial.

Moore v. Comm’r of Morrison Cnty. Bd. of Adjustment, 969 NW 2d 86 (MN App. 2021)

This post was authored by Matthew Loescher, Esq.

Plaintiffs, a group of property owners who wish to obtain short-term rentals (“STR”) licenses for their homes, brought three constitutional challenges to New Orleans’s regulation of STRs – specifically as to the type of lodging offered on platforms such as Airbnb and Vrbo. The district court granted summary judgment to the City on two of those challenges, but held that the prior-restraint claim was “viable.”

On appeal, plaintiffs alleged that the City violated the Takings Clause by refusing to renew their STR licenses. Specifically, they claimed that they enjoyed property interests in the renewal of their licenses that the City took away from them without just compensation. While the plaintiffs did not contend that Louisiana law recognized that they have a property interest in the renewal of their licenses, they instead argued that they have such an interest because the court has recognized that business licenses qualify as property for purposes of procedural due process. Here, the ordinance at issue stated that STR licenses “may be revoked or not renewed based on non-compliance with the requirements of the Comprehensive Zoning Ordinance, or the requirements provided” in the ordinance itself. Accordingly, the plaintiffs lacked the sort of ownership in their STR licenses that could support a “legitimate claim of entitlement” to money damages when their licenses were not renewed.

The plaintiffs next claimed that the district court erred in granting summary judgment to the City on their challenge to the residency requirement. Plaintiffs argued that the requirement violates the dormant Commerce Clause because it discriminates against interstate commerce. The district court held that the residency requirement discriminated against interstate commerce, but then applied the Pike test to uphold the law. On appeal, the court found that the district court should have asked whether the City had reasonable nondiscriminatory alternatives to achieve its policy goals. Because there are many such alternatives, the residency requirement was unconstitutional under the dormant Commerce Clause.

In its cross-appeal, the City challenged the district court’s holding that the plaintiffs’ prior-restraint claim was viable. The court determined that it lacked jurisdiction to resolve this challenge because that “holding” was not a final judgment, as the record reflected the City appeared to concede that the district court’s order was not final because it had not resolved the plaintiffs’ requests for relief.

Higneil-Stark v City of New Orleans, 46 F. 4th 317 (5th Cir. CA 8/22/2022)

This post was authored by Matthew Loescher, Esq.

Jennifer Page and her husband, Joseph Koveleskie were the owners of residential property consisting of a principal building and a second rear structure that was originally built as a garage and later converted to an apartment. In 2019, the Koveleskies obtained an emergency permit for the second structure from the City of New Orleans, Department of Safety and Permits which allowed emergency repairs to the roof, interior termite repair and painting of the second structure. The Koveleskies then filed an application entitled “Determination of Non-conforming Status” with the Department in order to change the zoning status of the property from a single dwelling to a double dwelling by renovating the second structure into an apartment and including it as a separate structure on the property. The Department determined that the property had not attained/retained legal non-conforming use status under the provisions of the CZO because there was no evidence of “culinary facilities”. Plaintiffs filed separate petitions for writ of certiorari and judicial review of the Board’s decision in Orleans Parish Civil District Court. The matters were consolidated and heard by the trial court, which affirmed the decision of the Board.

Based on the record, the court found Plaintiffs failed to establish that the Board erred in determining that the Department properly re-evaluated its previous decision based on new documentation. Plaintiffs argued that the Board erred in determining that the second rear structure met legal non-conforming use status as a second dwelling. However, due to the length of time the second structure contained a cooking facility, the Department determined that the “ongoing use as a two-family dwelling with two principal structures is permitted.” In the appeal summary report, the Department noted that it verified the historical existence of a second principal building based on the newly submitted evidence from the Koveleskies. Additionally, the Department found “that the second structure” on the property had “operated as a second dwelling unit and separate principal structure for at least ten years.” As such, the Plaintiffs failed to demonstrate that the Board’s decision was arbitrary, capricious or an abuse of discretion. Accordingly, judgment of the trial court denying Plaintiffs’ petition for judicial review and dismissing their claims with prejudice was affirmed.

Saer v City of New Orleans, 2022 WL 4285489 (IL App. 9/16/2022)

This post was authored by Matthew Loescher, Esq.

Plaintiff Rabbi Israel Meyer Hacohen Rabbinical Seminary of America brought this action against Town of Putnam Valley and Town of Putnam Valley Planning Board, asserting two claims under the Religious Land Use and Institutionalized Persons Act and a 42 U.S.C. § 1983 claim for alleged violations of the Plaintiff’s rights under the Fourteenth Amendment’s Equal Protection Clause. Plaintiff, a not-for-profit Orthodox Jewish Yeshiva, wanted to develop Lots 29 and 33 as a centralized religious cemetery – which would include burial grounds, office space, a chapel, an equipment shed, a parking lot, and roadways. This case arose after Plaintiff received a copy of a letter from the Town attorney to the Planning Board opining that the application could not proceed.

Plaintiff acknowledged that it did not receive a final determination of its application to build a religious Jewish cemetery on the Property. Plaintiff further conceded that it never sought any variance and explained that the reason why it did not do so was because “the Planning Board refused to provide any guidance” as to how to obtain one. The court found that Plaintiff could not rely on the delay it alleged in support of its futility argument, as its own actions and activities contributed to the delay in meaningful part. Here, the Town attorney letter merely specified the issues that should be addressed before the application could proceed. The court therefore held that Plaintiff’s claims were not ripe for review.

Rabbi Israel Meter HaCohen Rabbinical Cemetery of America v Town of Putnam Valley, 2022 WL 4357933 (SDNY 9/20/2022)

This post was authored by Matthew Loescher, Esq.

The Pulaski County Board of Commissioners approved and adopted a Unified Development Ordinance (“UDO”) that provided a regulatory scheme for the construction and operation of solar energy systems in the county. In 2020, Mammoth Solar submitted an application for a special exception seeking approval to construct a commercial solar energy farm on 4,511 acres of farmland in Pulaski County. Following a public hearing, the Pulaski County Board of Zoning Appeals (“BZA”) unanimously approved the Application. After neighboring property owners brought suit, the trial court held that the Application had failed to comply with the minimum requirements of the UDO, that the BZA should not have considered Mammoth Solar’s incomplete application, and the BZA’s decisions were arbitrary and capricious.

On appeal, the court noted that the UDO’s stated purpose to ensure the safe and effective development and production of solar-generated electricity in Pulaski County – and the drafters’ use of plain and unambiguous mandatory language in the section of the UDO concerning the information to be included in an application – reflected the intent for the information set forth in sections 2.3(R)(1) and (3) to be required in all CSES applications. Here, Mammoth Solar’s application did not include this required information, and the BZA should therefore not have approved the Application. As such, the BZA’s incorrect interpretation of the UDO was not entitled any weight, and the court reversed the BZA’s approval of the Application as being arbitrary and capricious. The court further held that Petitioners’ prejudice resulting from their proximity to the solar panels and the decrease in their property values was also caused by the BZA’s approval of Mammoth Solar’s incomplete application. Accordingly, Petitioners failed to meet their burden to prove that they were prejudiced by the BZA’s decision as required by Indiana Code § 36-7-4-1614.

Mammoth Solar v Ehlich, 2022 WL 4362027 (IN App. 9/21/2022)

This post was authored by Marie Sylvestre, Jacob D. Fuchsberg Touro Law Center

The Kingstonian project consists of a plan to redevelop parcels in the Kingston Stockade Historic District located within the city of Kingston, Ulster County. The District is listed on the National Registry of Historic places, worthy of preservation stemming from the colonial and revolutionary war eras. The petitioners, business property owners in the area, filed a petition against the defendant seeking to nullify the letter to the developers indicating that the project would have no adverse impact on the district and an order directed the defendant to find alternative plans for the redevelopment project. The petitioners were specifically concerned about the visual appeal and views of the northern boundary of the district. The Court found that the petitioners lacked procedural standing to even seek the relief requested, on the basis that the petitioners failed to prove how the redevelopment plan injured their businesses and found that their proximity to the redevelopment project does not give rise to a presumption of standing.

61 Crown St., LLC v. New York State Off. of Parks, Recreation & Historic Pres., 207 A.D.3d 837, 172 N.Y.S.3d 164 (2022)

This post was authored by Mark Posner, Jacob D. Fuchsberg Touro Law Center

Outdoor sign advertiser, GEFT Outdoor, LLC, challenged the zoning ordinance of the City of Evansville, Indiana regarding signs as unconstitutional under the First Amendment following denial of a variance to erect a digital billboard. GEFT brought an action under 42 U.S.C. §1983, alleging that the Ordinance violated the First Amendment as incorporated against the states under the Fourteenth Amendment.

The City of Evansville has specific sign standards that provided that a permit must be obtained in order to erect certain signs as well as providing a list of certain signs which are exempt from having to obtain a permit. Anyone denied a permit may still petition the BZA for a variance. The issue in this matter arose on April 11, 2019 when GEFT sought variances for construction of a digital billboard for relief from the minimum spacing distance between off-premise signs, the maximum height of an off-premise sign, and the restriction on an off-premise sign on any undeveloped or partially developed subdivision plat. The BZA denied GEFTS request for the variances.

The Court explored the City’s Sign Standards that separate regulations on signs based on whether they are on-premises or off-premises signs. A sign is considered an on-premises or off-premises sign depending on whether it directs attention to the “primary use, business, or activity on the premises where it is located.” The Court concluded that these distinctions are content-based as the government would have to determine whether the sign was on or off premises and then which regulations it was subject to. When reviewing the lengthy list of exemptions for permitting and variances, the court found that all of the exemptions were content based. The Court found that the Sign Standards apply different regulations to a sign depending on the communicative content of the sign. Due to this, the Court held that the sign standards, subject to strict scrutiny, were unconstitutional on their face because they constitute an impermissible content-based regulation on speech.

GEFT’s second claim alleged that the City’s permitting and variance scheme is a prior restraint on speech that lacks the substantive and procedural safeguards required. The Court found that since the Sign Standards as a whole were unconstitutional, they would be struck down in their entirety, including permit requirement and this the variance process would no longer have any applicability.

GEFT Outdoor, LLC v. City of Evansville, 575 F.Supp.3d 1015 (SD IN 2021)

This post was authored by Jennifer Champey, Jacob D. Fuchsberg Touro Law Center

In June 2016, the town issued a letter indicating its continuing support for Haven’s operation of a medical marijuana treatment center (MMTC). Not long after, Haven received a provisional certificate of registration from the Cannabis Control Commission to operate the MMTC in town. The following November, a ballot measure [Question 4] that authorized the legalization of adult-recreational-cannabis-use passed state-wide. Despite this, a majority of the town’s voters did not vote in favor of the initiative, leading to a temporary moratorium on recreational marijuana in May of the following year. The moratorium was to last either until November 2018 or until zoning laws could be implemented to regulate establishments of this nature.  

In October 2018, two bylaw amendments were presented at a town meeting, the first (article 14) was passed which prohibited all commercial recreational marijuana establishments. The second (article 15) bylaw proposal, intended to regulate recreational marijuana use and establishments, did not pass. By April, Haven was negotiating a proposed host community agreement for a medical/recreational marijuana establishment and cultivation and processing center. In November, after Haven signed a lease in town, it was informed by the town administrator that the town would no longer be working with Haven in pursuit of the establishment.

Individual cities and towns are within their rights to limit or ban recreational marijuana as long as the appropriate voting and procedural requirements are met…. “According to guidance issued by the commission, under this provision of the statute, ‘[i]f a municipality voted no on [Question 4], then the governing body [could] limit or ban the number of marijuana establishment[s] … by passing a bylaw or ordinance prior to December 31, 2019.’”

The plaintiff here asserts that the passage of article 14 is void as enacting local ordinances is only permissible if such action is “not inconsistent” with Massachusetts laws or the Declaration of Rights. Haven also asserts that the town characterizes Article 14 as an amendment to a general bylaw but is instead an amendment to the zoning bylaw as it prohibits a particular use of land, specifically for recreational marijuana establishments. After being transferred to the Superior Court, the plaintiff’s motion for summary judgement was denied and the plaintiff then appealed.

Through statute, cities and towns may “adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments;” such efforts can limit the number of establishments or prohibit them.  There is no specification that these provisions have to take the form of zoning ordinances or bylaws. In fact, the applicable state statute provides that zoning ordinances or bylaws cannot operate to prevent conversion of MMTCs to recreational marijuana establishments or to limit the number of recreational marijuana establishments to less than the minimum number set out in the statute. It can then be inferred that municipalities may properly regulate or prohibit recreational marijuana establishments through general bylaws and/or zoning bylaws. The court further clarifies that just because a bylaw regulates land use does not mean that it is a “zoning” bylaw. Courts will look to the history of the town’s bylaws to make such a determination.

After weighing relevant factors, the court determined that article 14 does not need to be treated as a zoning bylaw and therefore, the town was permitted to prohibit recreational marijuana establishments through general and zoning bylaws. Put simply, article 14 is not in violation of the aforementioned state statute as is not a zoning bylaw.

Haven Center, Inc. v. Bourne, 2022 WL 2976699 (MA 2022)