This post was authored by Matthew Loescher, Esq.

EP MSS LLC, the owner of Merrillville Self-Storage, appealed the trial court’s order finding EP MSS lacked standing to pursue a petition for judicial review. EP MSS also sought review of the Town of Merrillville’s decision to grant a zoning variance that gave DG Properties Taft LLC permission to construct a self-storage facility near EP MSS’s Merrillville Self-Storage. On appeal, EP MSS argued the trial court erred when it determined EP MSS did not have standing to pursue judicial review as an aggrieved party based on EP MSS’s claim that it could incur potential loss of business due to the DG Properties self-storage facility.

Specifically, EP MSS alleged the oversaturation of the market for self-storage space and the threat of decreased profits constituted a special injury sufficient to render EP MSS an “aggrieved” party under the statutory definition and bestow standing. The court rejected this contention, holding that restricting competition among private businesses did not serve any of the specifically enumerated purposes in the statute. Moreover, EP MSS failed to show pecuniary harm from the granting of the use variance, as it confused the possibility of future lost profits with a decrease in its property’s value. Accordingly, the trial court’s holding was affirmed.

EP MSS, LLC v Merrillville Board of Zoning Appeals, 2022 WL 2840319 (IN App. 7/21/2022)

This post was authored by Matthew Loescher, Esq.

Andrew Stevens and Melanie Copenhaver completed a major landscaping project in the front yard of their home in Columbus’s Bryden Road Historic District. After receiving notice that their failure to apply for and secure a certificate of appropriateness for the landscaping from the City’s Historic Resources Commission violated the Historic Planning and Preservation Code, they were unsuccessful in obtaining retroactive approval or a favorable outcome in their appeals. Following this, Stevens and Copenhaver sued the City and Timothy J. Noll, a Columbus Code Enforcement Officer, in federal court, challenging the Code as unconstitutionally vague, an impermissible delegation of legislative power, contrary to equal protection under the Ohio Constitution, and imposing excessive fines. The district court denied their claims, and Stevens and Copenhaver appealed.

On appeal, Stevens and Copenhaver first contended that the Preservation Code failed to provide the necessary notice of what landscaping was prohibited and permitted. The Preservation Code at issue requires applications for certificates of appropriateness to the Commission when a property owner in a historic district proposes changes to “[t]he exterior of a property as is designed to be exposed to public view” and any “significant exterior improvement” such as “landscaping; …walkway; fence; mound; wall; … mechanical system or similar improvement”. Here, Stevens and Copenhaver installed brick retaining walls and changed the landscaping through numerous plantings and substitution of dark mulch for all grass in the front yard. These changes were both alterations to the property’s “architectural features” because the retaining walls and landscaping were exterior elements “designed to be exposed to public view”, and “site improvements” as they were significant exterior changes to landscaping and front walls. As such, their argument that the “presence of retaining walls in the yards of approximately 40 other properties in a historic area of over 250 buildings shows the arbitrariness of the Preservation Code’s application” did not meet that burden. Specifically, the court found that Stevens and Copenhaver failed to offer any evidence concerning which of the properties had landscaping grandfathered in by virtue of having retaining walls before Bryden Road became a Historic Preservation District, or clear evidence that their property was substantially similar to those that did receive certificates of appropriateness.

Stevens and Copenhaver next alleged that the Preservation Code’s regulation of landscaping was unconstitutional under the Due Process Clause because it impermissibly delegated authority over certificates of appropriateness to the Commission. The court found that because the Preservation Code provided adequate guidance on assessing applications for certificates of appropriateness, and the appointment process provided a degree of political control, the delegation challenge failed. The court further noted that even if the Preservation Code’s impact on landscaping was driven solely by aesthetic interests rather than historic preservation, Ohio cases have implied that there is a governmental interest in maintaining the aesthetics of a community such that zoning for aesthetic reasons are a valid exercise of police power. Accordingly, Stevens and Copenhaver failed to meet their burden of showing “beyond fair debate” that the Preservation Code lacked a substantial relation to the promotion of the public welfare.

The court lastly held that Stevens and Copenhaver’s Excessive Fines challenge was not ripe as the City had yet to impose or seek any fine against them under the Preservation Code. Accordingly, the court affirmed the district court’s decisions to deny Stevens and Copenhaver’s claims.

 Stevens v City of Columbus, OH, 2022 WL 2966396 (6th Cir. CA 7/27/2022)

This post was authored by Matthew Loescher, Esq.

On September 9, 2019, the City of Mount Pleasant adopted Ordinance No. 1046 authorizing the operation of three recreational marijuana retailers within the city limits. The City accepted license applications beginning in January 2020, stating that if more than three applicants sought licenses, “the City will decide among competing applications by a competitive process intended to select applicants who are best suited to operate in compliance with” Michigan marijuana laws. By ordinance, the decision of the selection committee was deemed “final” and was “not appealable to the City Commission, City Zoning Board of Appeals, or any other City official or body.” Plaintiff Cary Investments, LLC d/b/a Consano Provisioning was one of ten applicants for a license to act as a recreational marijuana retailer, but the City ultimately chose other applicants instead of Cary. The trial court rejected all of Cary’s challenges to that decision.

On appeal, plaintiff first argued that it suffered a due-process violation because it already had a license to operate a medical-marijuana provisioning center, so the City should have highly valued plaintiff when the City chose the recipients of three recreational marijuana retailer licenses. The court found that while procedural due process requires “a decision by an impartial decision-maker,” neither plaintiff’s complaint nor the evidence submitted to the trial court offered any indication that the selection committee was something less than an impartial decision-maker. The court therefore affirmed the trial court’s decision to grant summary disposition to the City on this claim.

The court next noted that after the trial court awarded summary disposition to the City, plaintiff filed a motion for reconsideration that the trial court denied. Given the above holding that the trial court properly granted summary disposition to the City, the court declined to find that trial court’s refusal to change its decision in response to plaintiff’s motion for reconsideration was an abuse of discretion.

The record also indicated that after losing on summary disposition, plaintiff filed a motion to amend and presented the trial court with a proposed amended complaint. Before the trial court addressed that motion, plaintiff filed its first claim of appeal dated March 26, 2021. More than two weeks later, the trial court issued an opinion denying plaintiff leave to amend its complaint. Since plaintiff’s motion requested permission to file an amended complaint after the trial court had dismissed the original complaint, the motion asked the circuit court to alter the order plaintiff had already appealed. Accordingly, the trial court lacked jurisdiction to address plaintiff’s motion to amend its complaint during the pendency of this appeal.

Cary Investments, LLC v City of Mount Pleasant, 2022 WL 2760148 (MI App. 7/4/2022)

This post was authored by Matthew Loescher, Esq.

Plaintiff Horizon House, Inc., a nonprofit organization that provides supportive services to individuals in Pennsylvania with intellectual disabilities, sued defendant East Norriton Township under the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. §§ 3601 et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. Horizon House claimed that the Township violated these statutes when it required Horizon House to obtain a special exception under its zoning ordinance for Horizon House’s proposal to house and provide supportive services for individuals with disabilities in a single-family dwelling.

Pursuant to the ordinance, the Township issues use and occupancy certificates as a matter of course for single-family dwellings that house three unrelated individuals in BR-1 zoning districts. Conversely, if that same single-family dwelling were to be used as “as living quarters by any number of unrelated persons requiring special care, specifically designed to create a residential setting for the mentally and physically handicapped,” the ordinance requires the owner to pay for costly structural modifications, publicly disclose each proposed resident’s disability, and provide around-the-clock on-site staffing regardless of resident need. Thus, by its own terms, the Township’s ordinance imposed significant burdens on the owners of properties in BR-1 zoning districts who seek to use their properties to provide housing to individuals with disabilities. Accordingly, the Township’s zoning ordinance was held to be facially discriminatory.

As a final matter, while the Township solicitor’s denial letter makes a passing reference to “inconsistent information provided,” the bulk of the denial letter reflected that the application was being denied because the Township believed what Horizon House was proposing fell under the category of “group home.” Here, the Township made no attempt to justify its treatment of group homes for individuals with disabilities and did not argue that a less restrictive course of action could be adopted.” As the Township failed to rebut Horizon House’s prima facie case, the court held Horizon House had proven a violation of the FHAA.

Horizon House, Inc. v Norriton Township, 2022 WL 2916680 (ED PA 7/25/2022)

This post was authored by Matthew Loescher, Esq.

The Zoning Board of Appeals of the Milton sought judicial review of decision of housing appeals committee (HAC), sitting within Department of Housing and Community Development (DHCD), which concluded that the Board’s conditions for low and moderate income housing development project had rendered the project significantly more uneconomic than as proposed. The HAC further found that the Board failed to show that many of its conditions were consistent with local needs and ordered them struck or modified. The Land Court Department granted in part HAC’s cross-motion for judgment on the pleadings and affirmed nearly the entirety of HAC’s decision.

On appeal, the board challenged the HAC’s authority to hear cases in which, due to a project’s as-proposed return on total cost (ROTC) falling below the guidelines’ minimum ROTC threshold, HAC applies the “significantly more uneconomic” standard. The court determined that the question whether conditions render a project uneconomic or significantly more uneconomic is not jurisdictional but, instead, is “a necessary element of the developer’s prima facie case for relief.” Despite the court finding that waiver doomed the Board’s arguments on the applicability of the significantly more uneconomic standard, the court nevertheless addressed this issue.

At the outset, the court noted that neither the regulations nor the guidelines addressed the specific scenario presented in this case: “where a developer has received a project eligibility letter that does not include a calculation of the expected return, and then seeks and receives a comprehensive permit subject to conditions, and, subsequently, when a rate of return for the original proposal absent the conditions is calculated, the proposal does not meet the minimum reasonable return set out elsewhere in the guidelines and regulations”. The court found that, in cases such as this, the agency responsible for interpreting the statute and its own regulations has applied the “significantly more uneconomic” test to determine whether the conditions imposed have made it impossible for the developer who is still willing to proceed to receive a reasonable return on its investment. As such, the court found that HAC has authority to apply the “significantly more uneconomic” standard in cases in which developers are willing to proceed despite lower initial rates of return as calculated by the guidelines’ minimum ROTC.

Zoning Board of Appeals of the Milton v HD/MW Randolph, 189 NE3d 1224 (MA 7/14/2022)

This post was authored by Matthew Loescher, Esq.

This case arose after Karenza Apartments, LLP entered into a lease agreement with Becker Boards, a national advertising company. Becker applied for and received two mural permits to place advertising murals on Karenza property. While Karenza subsequently spent thousands of dollars toward planning, upgrades, and construction of the rooftop advertising structure, Karenza ultimately terminated its lease agreement with Becker for non-payment. In June 2017, the City presented its proposed ordinance amendment to the Planning, Zoning and Appeals Board (“PZAB”) to preserve the mural rights of all interstate facing properties. The new boundaries drawn by the City in the August 2017 amendment left Karenza’s property outside of the Geographical Area where murals were permitted. Consequently, Karenza’s ability to host advertising murals was effectively eliminated despite being similarly situated to neighboring properties in both location and structural ability to host murals. Karenza filed a complaint against the City of Miami asserting one count under the Bert J. Harris Act, section 70.001(1), Florida Statutes (2017), which provides compensation to property owners for damages caused by government regulation even where it does not necessarily rise to the level of a constitutional taking. In this case, Karenza sought to reverse a final summary judgment in favor of the City of Miami.

On appeal, the court found that while the trial court on summary judgment found that Karenza had an existing use, it failed to examine and objectively analyze whether Karenza had a reasonable, investment-backed expectation – based on the City’s then-existing land use ordinance – that it could continue to host murals on its property by partnering with a qualified permittee. Here, disputed facts remained as to: whether Karenza had reasonable, investment-backed expectations to use its property to continue to host murals; as a result of the City’s amended mural ordinance, Karenza’s property was disproportionately burdened because Karenza can no longer objectively attain its reasonable investment-backed expectations as a matter of law, and whether damages resulted from those findings. The court therefore reversed the summary judgment orders and remanded for further proceedings.

Karenza Apartments, LLP v City of Miami, 2022 WL 2709425 (FL App 7/12/2022)

This post was authored by Matthew Loescher, Esq.

The Forest at Bailey’s Glen was a phased construction, residential subdivision for residents 55 and older located in Cornelius, North Carolina. Bailey’s Glen consists of 728 homes that have been built or were planned to be built and is bordered primarily by Bailey’s Road to the west and Barnhardt Road to the south. Plaintiff, Mr. Violette, owned approximately 32 contiguous acres across the street from Bailey’s Glen on Barnhardt Road. In March 2019, Mr. Palillo submitted an application on behalf of Bluestream Partners to the Town requesting rezoning of the property acquired by Forestyle from Mr. Clawson’s estate from Rural Preservation to RP-CZ – a conditional district zoning under the Town’s Land Development Code that would allow for construction of a new amenity center. The Town’s Planning Board reviewed and recommended approval of the application, and the Town’s Board of Commissioners approved the application in October 2020. After Plaintiffs brought suit, the trial court held that Plaintiffs lacked standing to challenge the rezoning, and in the alternative, that if Plaintiffs had standing to challenge the rezoning, summary judgment in favor of Defendants was proper.

At the outset, the court noted that under current law, general diminution of property values in the area does not confer standing on a neighboring owner to challenge a zoning decision, and the neighbor’s opinion of the diminution in value of the property the neighbor owns is not competent evidence to establish the neighbor’s standing to challenge the decision. Here, Plaintiffs claimed they had a specific legal and personal interest in the Plaintiffs’ properties, which were directly and adversely affected by the Town’s approval of the rezoning. Furthermore, Plaintiffs claimed they had been actively and continuously involved as much as possible throughout the rezoning process by communicating with the developer, Bluestream, and the Town, and by attending and speaking at meetings before the Board of Commissioners and the Community meeting.

Notwithstanding the aforementioned, Plaintiffs’ complaint was not verified, and an affidavit was not attached as an exhibit to substantiate the allegations above. Moreover, in their responses to written discovery, Plaintiffs disclosed that they did not intend to engage any experts to prepare any reports or affidavits or testify at trial. At Mr. Violette’s deposition, he testified that the construction of the amenity center would diminish the value of his property—which he opined was worth $10 million—by $5 or $6 million because of increased noise, traffic, and light. As this evidence of the diminution in value of Plaintiffs’ property was determined to be not competent evidence, the trial court’s dismissal of Defendants’ motion was upheld.

Violette v Town of Cornelius, 874 S.E. 2d 217 (NC App. 6/7/2022)

This post was authored by Matthew Loescher, Esq.

In this case, the Intervenors – Coltart Area Residents Association, Oakcliffe Community Organization, South Oakland Neighborhood Group, Marjory Lake, Mark Oleniacz, and Elena Zaitsoff – appealed an order of the Court of Common Pleas of Allegheny County that granted the zoning appeal of the Wexford Science and Technology, LLC (“Developer”). The trial court reversed the decision of the City of Pittsburgh Zoning Board of Adjustment, which denied Developer’s application to construct a 13-story office building on Forbes Avenue in the City of Pittsburgh.

On appeal, Intervenors contended that the trial court erred in concluding that the 128-foot height of the adjacent hotel provided the permitted height for Developer’s building because the hotel building was oriented to McKee Place, rather than to Forbes Avenue. The City’s site map indicated that lot lines determined lot orientation; the longer boundary lines of each lot are parallel to each other and perpendicular to the street they face. Here, the lines of the hotel lot were fixed in the same direction as Developer’s three lots, and all the lots faced Forbes Avenue. The hotel was a rectangular building built out to its lot boundaries, as would be Developer’s building. Additionally, the location of the adjacent building’s door was not mentioned in Section 925.07.D of the Zoning Code. As such, the trial court’s holding that the hotel’s height of 128 feet established the contextual height for Developer’s proposed building was affirmed.

Next, Intervenors claimed that the trial court lacked subject matter jurisdiction over the 20% sustainability height bonus because Developer did not first present the bonus request to the Zoning Administrator. Consequently, Intervenors argued that neither the Zoning Board nor the trial court had jurisdiction to consider Developer’s eligibility for the LEED bonus. The record reflected that pursuant to the authority of Section 923.02.B, Developer applied to the Zoning Board for a variance from the “permitted height of 128’ … and 60 feet (with LEED Bonus where residential compatibility standards do apply)” to allow for a height of 188.6 feet. Thus, the extent of the variance needed turned on the LEED height bonus and was therefore within the Zoning Board’s jurisdiction to consider. Accordingly, the trial court had subject matter jurisdiction over the issue of the height bonus, and the court held that any irregularity in those proceedings was waived by the Intervenors by their failure to timely raise an objection.

Wexford Science and Technology, LLC v City of Pittsburgh Zoning Board of Adjustment, 2022 WL 3021692 (PA Cmwlth 8/1/2022)

This post was authored by Matthew Loescher, Esq.

This case arose from development agreements entered into by the defendant City of Dania Beach and defendant Dania Entertainment Center (“DEC”) to expand the Dania Jai Alai pari-mutuel facility. In 2006, the City entered into a development agreement with the facility’s then-owner Aragon Group, Inc. The development agreement included plans to renovate the original Jai Alai facility and to build a new gaming facility on the property. Appellants appealled a final judgment entered on their complaint for declaratory judgment and injunctive relief, challenging the procedures which the City of Dania Beach used to approve development agreements allowing appellee Dania Entertainment Center LLC to expand the Dania Jai Alai pari-mutuel facility. Appellants also sought declaratory judgment against Broward County disputing the county’s comportment with its required review process for the Dania Jai Alai expansion. The trial court concluded that appellants lacked standing to pursue their claims because they failed to show special damages.

On appeal plaintiffs argued that the City did not follow the process of their land use code or the Local Government Development Agreement Act. They further claimed that there was inadequate notice with respect to the approval of both the 2011 and 2014 development agreements. The court noted that allegations were not challenges to the substantive zoning decision, but were instead challenges to the procedure for approving the development agreements. Pursuant to Renard, any affected resident or property owner has standing to challenge an ordinance when attacking it for voidness. Thus, plaintiffs were required to show that they were “affected” by the ordinance, which is a lesser showing than requiring special damage. Here, Plaintiff Simpson showed that he lived relatively close to the development and had issues with the increased traffic causing him danger due to him being legally blind. Additionally, Plaintiff CFRD alleged that it had members impacted by the development, including residents of the City of Dania and one member who resides within 300 feet of the facility. Moreover, the non-profit is a public interest company interested in responsible development in the county.

The county argued that because it was not a party to the development agreements, the plaintiffs did not show that they suffered a redressable injury traceable to it because the county did not approve the development agreements. The court rejected this contention, finding the plaintiffs’ claim was that the county failed to conduct the review process required by county ordinances for development applications because it erroneously relied on section 550.155 to exempt review. As this was a process argument which the plaintiffs had standing to raise, the trial court erred in holding that the plaintiffs did not have standing to pursue the claims made that the defendant governmental entities failed to follow their own procedures and ordinances and to follow statutory requirements for development review.

Citizens for Responsible Development, Inc. v City of Dania Beach, 2022 WL 2709476 (FL App. 7/13/2022)

This post was authored by Matthew Loescher, Esq.

Prince George’s County Council sought to remove two historic schoolhouses in Upper Marlboro, Maryland from the 2010 Prince George’s County Historic Sites and Districts Plan. Pursuant to the procedures outlined in the Prince George’s County Code, the Council passed an initiating resolution, CR-72-2019. This resolution directed the Prince George’s County Planning Board of the Maryland-National Capital Park and Planning Commission (the “Planning Board”) to initiate the process for considering whether to adopt a minor amendment that would remove the two schoolhouses from the County’s list of historically protected sites. Pursuant to the resolution, a joint public hearing was held on the proposed minor amendment, during which representatives of the Town of Upper Marlboro, Petitioner, argued against its adoption.

The Council ultimately adopted the minor amendment through a subsequent resolution: CR-98-2019. Within thirty days, the Town filed a petition for judicial review of CR-98-2019 in the Circuit Court for Prince George’s County. The circuit court ruled against the Town, finding that the adoption of CR-72-2019 and CR-98-2019 was not arbitrary and capricious, and was supported by substantial evidence in the record. The Town appealed to the Court of Special Appeals, which affirmed the circuit court on different grounds. The Town filed a petition for certiorari, which was granted.

At issue in this case was whether CR-72-2019 constituted a “final decision” within the meaning of Land Use § 22-407(a), so that a petition for judicial review should have been filed within thirty days after service of the decision by the Council. The title of CR-72-2019 as an initiating resolution provided the first indication that there was more work for the Council to do before enacting the minor amendment. The court found that the text of CR-72-2019 made no determination of whether to adopt the minor amendment and expressly left this decision for the Council. Accordingly, it held that CR-72-2019 was not a final agency action subject to judicial review. As such, the Town was not required to file a petition for judicial review within thirty days of its passage to preserve its right to challenge the purpose and scope of CR-72-2019.

The record reflected that the Council made a final agency action through the passage of CR-98-2019. Thus, the Town did not waive its challenge to CR-98-2019, based on alleged deficiencies in CR-72-2019, by failing to appeal CR-72-2019 within thirty days of its passage. Nevertheless, the court rejected the Town’s position that CR-72-2019 was procedurally deficient. Here, CR-72-2019 complied with the circumscribed “scope” set forth in PGCC § 27-642(c) because it expressly stated that its purpose was limited “to specific issues regarding public planning objectives.” Conversely, the Town failed to provide statutory support for its assertion that CR-72-2019 required any specific factual details regarding the “specific issues regarding public planning objectives. The court therefore held that CR-72-2019 satisfied the statutory requirements set forth in PGCC § 27-642 for an initiating resolution for a minor amendment, and affirmed the judgment of the Court of Special Appeals on alternative grounds.

Town of Upper Marlboro v Prince Georges County Council, 2022 WL 3025099 (MD 8/1/2022)