This post was authored by Sebastian Perez, JD

The Advantage of Advertising, LLC (Advantage) filed this action after the City of Opelika, Alabama (the “City”) denied six applications for permits to put up signs. Advantage alleged that the City’s sign regulations, both factually and as applied, violated Advantage’s protections under the First and Fourteenth Amendments of the United States Constitution, and the Alabama Constitution of 1901. In its motion to dismiss, the City argued that the court should have dismissed the action because (1) Advantage lacked standing to challenge the regulations referenced in its complaint and (2) Advantage had failed to state a claim upon which relief could have been granted. 

Under its city zoning ordinance, the City had adopted extensive sign regulations to “promote the public health, safety and general welfare of the general public” and “to address the secondary effects of signs that may adversely impact aesthetics and safety.” The City’s regulations required permits before a permanent sign could be erected. Permit applications needed to include information such as the type of sign, location, dimensions, elevation, zoning district, and luminosity, among others. Once an application was submitted, an approval or denial was required within thirty days, but if not, the application was deemed denied and the applicant could then have made a request for an explanation to be answered in writing by the City within fourteen days. An aggrieved party preserved the right to seek judicial review by a court of competent jurisdiction. Under the City’s regulations, certain types of signs were not permitted which included off-site commercial signs, freestanding signs higher than thirty feet, and freestanding signs that exceeded 300 square feet in sign area. As to the content, the sign regulations prevented any limitation based on the viewpoint of the message contained on such a sign with an exception for signs that carried government-related messages. Advantage’s complaint alleged that each of its six applications were denied but failed to allege what type of signs it sought nor had it attached a copy of the applications to the complaint. Advantage further asserted that the City denied all six of its applications for “various reasons” but failed to specify what those reasons were. Advantage appealed the denials, which were affirmed by the City after a hearing, and this suit claiming constitutional violations followed.

The court analyzed the City’s F.R.C.P 12(b)(1) motion to dismiss which facially attacked Advantage’s Article III standing to confer subject-matter jurisdiction on this court over the two federal claims. The City argued that Advantage failed to allege a causal connection between its as-applied challenges to the on-site/off-site commercial speech distinction or the government sign exemption. The City highlighted that Advantage neither alleged in its complaint what type of billboard it was applying for nor alleged that their applications were denied because of any specific provisions in the sign regulations. The City contended that Advantage’s complaint facially lacked causal standing because the complaint lacked allegations that connected the challenged regulations to Advantage’s injury. Advantage argued that because it applied for a sign permit which was denied, the mere denial gave Advantage complete freedom to challenge any provisions of the City’s sign regulations. The court disagreed with Advantage and suggested that their bare factual allegations did not propose that the challenged provisions of the sign regulations caused Advantage’s injuries or that the court could enter an order that would redress those injuries. The court found that those allegations completely failed to connect Advantage’s injury to the challenged regulatory provisions. The court held that the factual allegations in the complaint did not show that the challenged regulatory provisions caused any injury to Advantage or that an order from the court would have been likely to redress such injury. 

Advantage’s as applied and facial constitutional challenges in counts I and II of the complaint were due to be dismissed without prejudice for lack of standing.

The Advantage of Advertising, LLC v City of Opelika, AL, 2022 WL 3230430 (MD Ala 8/10/2022 

This post was authored by Sebastian Perez, JD

The District of Columbia Court of Appeals upheld most of the BZA’s conclusions but vacated and remanded further proceedings to address two issues that they concluded were not adequately addressed by the BZA. The corner lot property at issue was in an area zoned R-20 where the surrounding area was mainly residential and also zoned R-20, except for a small area 550 feet from the property that was zoned mixed use (MU-3A) that was previously issued a variance that permitted the retail use of the property. Intervenors sought a further variance so that CYM could have prepared bagels and bagel sandwiches on site. Initially, the owner sought a use variance that would permit the use of the property as a prepared food shop. Petitioner attempted to participate in the proceeding as a party, but the BZA denied her request. After a second hearing, the owner amended their request and sought instead an area variance. The owner presumed that the proposed use would have been allowed as a matter of right as a corner store, except for one requirement: that the corner stores in R-20 zones be at least 750 feet from any MU zone (the 750-foot rule). The amended application received two further hearings, where Petitioner was allowed to participate as a party, and the BZA then granted the area variance request on the amended application.

Petitioner initially argued that the BZA both erred in their delay in granting her party status and that the BZA lacked the authority to reconsider their initial denial of her party status. The court determined that Petitioner had not preserved that argument for review. Although Petitioner objected to the BZA’s initial denial of her request for party status, she did not object to the BZA’s subsequent reversal of that denial which granted her party status. Petitioner thereafter participated in the proceeding before the BZA as a party, both at two hearings and by filing a post-hearing written submission. The court declined to consider Petitioner’s initial argument. Petitioner also argued that she was prejudiced by the BZA’s initial denial of her request for party status because she was unable to fully participate in the first two hearings. The court noted that the argument was not before them because when the BZA did grant Petitioner party status, she failed to request an opportunity to reopen the record or have witnesses called. Petitioner had not been specific enough about what information she had hoped to elicit if she had been given party status at the first two hearings. The court decided there were no extraordinary circumstances that warranted a departure from the ordinary rule that they would not entertain contentions not raised before the BZA. Next, the Petitioners argued that the BZA erred by granting the requested area variance. The court relied on Wolf v D.C. Bd. of Zoning Adjustment, 397A.2d 936, 942 (D.C. 1979) on review of the BZA’s decision where they needed to determine (1) whether the agency had made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supported each finding; and (3) whether conclusions legally sufficient to support the decision flowed rationally from the findings. It was emphasized that deference should have been given to the BZA’s interpretation of the zoning regulation unless that interpretation was clearly wrong or inconsistent with the governing statute. The court then laid out the requirements in Fleischman v D.C. Bd. of Zoning Adjustment, 27 A.3d 554, 560 (D.C.2011) where an area variance applicant must have shown that (1) there was an extraordinary or exceptional condition affecting the property; (2) practical difficulties would occur if the zoning regulations were strictly enforced; and (3) the requested relief could be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan. Since the BZA had found that all three requirements were met, the court upheld the BZA’s ruling in part and remanded it in part for further consideration. Examining the first requirement an area variance applicant needed to show, the court noted that in Dupont Circle Citizens Ass’n v D.C. Bd. of Zoning Adjustment, 182 A.3d 138, 141 (D.C. 2018) it was decided that although a confluence of factors could have been considered, the critical requirement was that the extraordinary or exceptional condition needed to affect a single property. The BZA had listed the circumstances they believed amounted to an exceptional condition affecting the party: the property was a corner lot; the property was smaller than most lots in the surrounding area; the building on the property was constructed to be a corner store; the building was one of only three corner commercial properties in a largely residential area; the nearby area zoned MU-3 was small and an exception to the zoning in most of the surrounding area; and the property was already in commercial use at the time he nearby property was zoned MU-3. The court viewed the BZA’s determination on this point as reasonable. For the second requirement, an area variance applicant must show, the court found support in Neighbors for Responsive Gov’t, LLC v D.C. Bd. of Zoning Adjustment, 195 A.3d 35, 56 (D.C. 2018) when it deemed appropriate for the BZA to consider a wide range of factors, including (but not limited to) economic use of the property and increased expense and inconvenience to the applicant. The BZA’s evidence in support of this requirement satisfied the applied deferential standard of review but the court was given pause by one of the petitioners’ arguments on this issue. CYM’s ten-year lease of the property was not conditioned on obtaining a variance and the “practical difficulties” element was focused on difficulties to the owner of the property and not the tenant. Given the ten-year lease, it was not clear how denial of the requested area variance would have resulted in practical difficulties for the owner. The court, therefore, remanded the case to the BZA, for the BZA to adequately address that question. The court then denied all three of the petitioner’s arguments related to the third requirement under their deferential standard of review when it decided a granted variance, in this case, would not unduly affect existing businesses. First, the court refused to review evidence previously presented to the BZA because the petitioners failed to seek a review from that part of the ruling. Second, the court pointed out that the decades-old case law petitioners’ relied on did not apply the “area variance” standard applicable in the present case. Lastly, the court noted that petitioners’ concern of a “slippery slope” by granting the variance was addressed by the BZA because variance rulings turned on the facts of each specific case and that the subject property was affected by a combination of circumstances that did not apply to many other properties in the area. Petitioners’ argument that CYM would need other additional variances to operate as CYM proposed was not addressed. The BZA had declined that argument and instead relied on the principle that if an applicant sought a specific variance, the BZA could consider without deciding whether the variance would suffice to permit the intended use. The court, therefore, found no reason to address that point. The court then scrutinized the Petitioners’ argument that CYM’s proposed use could be approved only if CYM obtained a special exception. This argument turned on the interpretation of 11-U D.C.M.R. Sec. 254.13 that stated if an applicant met all of its conditions then an approval as of right could be granted but if not then a special exception was needed. It was undisputed that CYM could not meet all of the conditions under Sec. 254.13 because CYM needed an area variance from the 750-foot rule. Intervenors disputed that argument and contend that the ordinance did not apply to them because they were not a fresh-food market or grocery store and that the granted variance was the correct form of relief granted. The court did not find the BZA’s explanation for consenting CYA not need a special explanation sufficient and remanded the case for the BZA to more fully address the question of whether intervenors were required to obtain a special exception or could proceed by solely obtaining an area variance. 

In conclusion, the court mostly upheld the BZA’s reasoning and vacated the BZA’s order to remand the case for further proceedings on two points: (1) the implications of CYM’s ten-year lease as to whether denial of the requested variance would cause practical difficulties to the owner of the property; and (2) whether intervenors could permissibly proceed by solely seeking an area variance or whether instead a special exception was required. 

Roth v District of Columbia Board of Zoning Adjustment, 2022 WL 3269777 (DC App. 8/11/2022)

This post was authored by Matthew Loescher, Esq.

Plaintiff initiated the process of obtaining Major Site Plan Approval for a proposed project on its property, consisting of a 116-unit affordable housing project, with 6,670 square feet of commercial and retail space on the ground floor of the building and a 2,358 square foot leasing office, both of which would be open to the public. Plaintiff’s project required Major Site Plan Approval, which entailed: a Pre-Application meeting with City staff; review by the Development Review Committee (“DRC”); review and approval by the Architectural Appearance Committee (“ACC”); and review and approval by the Planning & Zoning (“P&Z”) Board. Provisions of the City Code also required certain improvements be made by all developers within certain zones. It was undisputed that from the beginning of the project, Plaintiff knew that the Improvements were required. Notwithstanding this, Plaintiff never objected to the Improvements at any point during the Major Site Plan Approval process. Construction of the Improvements led to an increase in the rent paid by the City to FEC under the lease. Following this, Plaintiff served its notice of the prohibited exaction, pursuant to section 70.45, Florida Statutes, on the City and filed this suit.

At the outset, the court noted that the Development Order explicitly imposed the construction of the Improvements as a requirement for approval and made it Plaintiff’s responsibility to obtain FEC’s approval. The Development Order did not address, in any way, what would happen if Plaintiff did not obtain FEC’s approval. However, as set out in the Development Order, construction of the Improvements was a requirement, not a requirement contingent on obtaining approval. Conversely, the Developer’s Agreement made Plaintiff’s obligation to construct the Improvements contingent on the City obtaining FEC’s consent. As such, contrary to Plaintiff’s argument, when the Development Order was entered, Plaintiff’s obligation to construct the Improvements, and obtain FEC’s approval of them, was clear and unequivocal. Accordingly, the court found the requirement was actually imposed and required in writing as a final condition of approval by the Development Order. Plaintiff’s section 70.45 notice was therefore untimely and, consequently, barred under the statute.

Plaintiff next alleged that requiring it to build the Improvements was an unconstitutional condition, which deprived Plaintiff of its Constitutional rights because the Improvements lacked an essential nexus to a legitimate public purpose and were not roughly proportionate to the impacts of Plaintiff’s proposed use. The court found that the requirement that Plaintiff improve adjacent roadways fell within the area of concern raised by the Supreme Court — that the City would use its permitting power to make extortionate demands on landowners wishing to develop their property. Additionally, the City reached a final decision, represented by the Development Order. As such, Plaintiff’s claim was ripe.

As a final matter, the court found that contrary to the City’s assertions, the private ownership of Flagler Avenue and the type of lease between FEC and the City were relevant facts for consideration of whether the Improvements had an essential nexus and rough proportionality to the public purpose that the City was trying to achieve. The court noted the fact that Flagler Avenue was privately owned did not mean that there was no public benefit from the Improvements, but that the issue was for the jury to decide. Thus, a question of fact remained as to whether the Improvements had an essential nexus with the public purpose the City was trying to achieve and whether there was a rough proportionality between the public costs of the project and the Improvements. Accordingly, summary judgment was denied on this issue. Heritage at Pompano Housing Partners, L.P. v City of Pompano Beach, 2021 WL 8875658 (12/15/2021)

This post was authored by Matthew Loescher, Esq.

 Plaintiffs James Knight and Jason Mayes – individuals who owned residential property in Nashville, Tennessee – brought suit challenging the constitutionality of the Sidewalk Ordinance implemented by the Metropolitan Government of Nashville and Davidson County. Plaintiffs described this Ordinance as “conditioning home building permits on the property owner’s funding of sidewalks.” Both parties moved for summary judgement.

Plaintiffs did not argue that the Sidewalk Ordinance, facially or as applied to them, or that it would fail the Penn Central balancing test; instead, they contended that the appropriate standard was the Nollan/Dolan test and that the Sidewalk Ordinance could not pass that test. While the application of the Sidewalk Ordinance in this case shared some features of the “adjudicative” actions at issue in Nollan and Dolan, as it pertained to individual applicants for building permits and also required the granting of a public right-of-way or easement along with the building of the sidewalk, the court found that the Sidewalk Ordinance was essentially “legislative,” and its application therefore did not require individualized, adjudicatory decision making. Accordingly, the court held that the Sidewalk Ordinance at issue was a generally applicable land use regulation and that the Nollan/Dolan standard of review did not apply to generally applicable land use regulations, as opposed to adjudicative land use exactions.

The court next found, upon a review of the record, that Metro easily satisfied Penn Central. Here, there was no evidence that the economic impact of the Sidewalk Ordinance on the plaintiffs was substantial. Moreover, the costs imposed by the Sidewalk Ordinance, relative to the overall cost of the plaintiffs’ construction projects, was minimal, as the in-lieu fee was capped at three percent of the “total construction value of the permit.” Additionally, there was no evidence that the Ordinance meaningfully interfered with the plaintiffs’ “investment-backed expectations,” as it has been long accepted that sidewalks improve property values – especially as plaintiffs did not refute Metro’s contention that sidewalks, as stated in the Sidewalk Ordinance, benefit the city of Nashville, its residents, and individual property owners and enhances the value, desirability, and safety of the plaintiffs’ properties and neighborhoods. Accordingly, the court granted Metro’s motion for summary judgment.

Knight v Metropolitan Government of Nashville & Davidson County, 572 F. Supp. 3d 428 (MD TN 11/16/2021)

This post was authored by Matthew Loescher, Esq.

 The nonprofit organization, Apache Stronghold, which sought to prevent land used by Apache from being conveyed from United States to mining company to facilitate mineral exploration activities, as authorized by National Defense Authorization Act (NDAA), brought an action against United States Department of Agriculture (USDA), alleging that land was held in trust by United States for Apaches by way of 1852 Treaty and that mine would desecrate ceremonial ground in violation of Apaches’ religious liberties, constituting breach of trust. The United States District Court for the District of Arizona, denied the organization’s motion for a preliminary injunction to prevent USDA from publishing a final environmental impact statement, which described potential environmental effects of mine and included detailed mitigation measures to minimize impacts. The District Court did, however, enter a stay pending this appeal.

The court first addressed Apache Stronghold’s claim under the Religious Freedom Restoration Act (RFRA). Under RFRA, the federal government may not “substantially burden” a person’s sincere exercise of religion unless that burden is both “in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that … interest.” Apache Stronghold contended that the Land Exchange, by enabling Resolution Copper to mine on Oak Flat if the company elected to, would render Apache religious exercise on Oak Flat “impossible” and therefore substantially burden the religious exercise of Apache Stronghold’s Apache members. While the dissent referenced the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq, as evidence that “the definition of ‘substantial burden’ included the denial of access to religious locations and resources”, the court interpreted a “substantial burden” under RLUIPA to be defined not by the Sherbert/Yoder framework but by the “plain meaning” of the phrase “substantial burden.” The court noted RLUIPA only applied to government land-use regulations of private land, such as zoning laws, and not to the government’s management of its own land. The court found that in issues involving the federal government’s use of its own land, “giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.” Accordingly, the court held the Land Exchange did not substantially burden Apache Stronghold within the meaning of RFRA, even if the Land Exchange makes it impossible for Apache Stronghold’s members to worship on Oak Flat.

Apache Stronghold next argued that the Land Exchange would violate the Constitution’s Free Exercise Clause. Specifically, it contended that Congress must have known the adverse impact that the Land Exchange would have on the Apache. The court rejected this contention, finding that even assuming that 535 distinct Congresspersons could have a single collective “knowledge” or “purpose,” Congress’s knowledge was not enough to prove its purpose. Here, the Land Exchange was generally applicable, as it did not selectively impose burdens only on conduct motivated by religious belief. Instead, the Land Exchange burdened all manner of secular activities on the areas to be transferred to Resolution Copper. The court therefore held that the Land Exchange Provision was a neutral and generally applicable law and passed muster under Smith. As such, the district court’s determination that Apache Stronghold was not likely to succeed on its Free Exercise claim was affirmed.

As a final matter, the court noted that the Apache and the U.S. government signed the Treaty of Santa Fe in 1852. In that treaty, the U.S. promised to “designate, settle, and adjust the Apache’s territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of the Apache.” Apache Stronghold argued that this language created an enforceable trust obligation on the U.S. government’s part, and that the Land Exchange was “inconsistent” with the U.S.’s obligation to pass laws “conducive to the prosperity and happiness” of the Apache. The court found that the U.S. government shoulders a trust obligation with respect to an American Indian tribe when the U.S. government “takes on or has control or supervision over tribal monies or properties.” Here, however, the government did not control or supervise tribal properties at Oak Flat; instead, Oak Flat belonged to the government. Without title vested in the Apache, there was no trust relationship arising from the Treaty of Santa Fe and no trust obligations relating to “usufructuary rights.” Accordingly, the district court’s denial of Apache Stronghold’s motion for a preliminary injunction was affirmed.

Apache Stronghold v USA, 38 F. 4th 742 (6/242/2022) 

This post was authored by Matthew Loescher, Esq.

 New Castle County Council adopted Ordinance 19-046 amending the Unified Development Code. Under New Castle County’s Unified Development Code, heavy industrial uses were permitted as of right on land zoned for Heavy Industry (HI). The amended Code now states that property owners with HI-zoned property must obtain a special use permit from the County before expanding Heavy Industry use of their property. A year after the Code was amended, Croda filed a complaint in the Court of Chancery to enjoin enforcement of Ordinance 19-046. Croda claimed that Ordinance 19-046 was invalid because the Ordinance title did not put it and the public on notice of the substance of the zoning amendment in violation of state and county law and federal due process guarantees. The Court of Chancery dismissed Croda’s state law claims as untimely under the state sixty-day statute of repose and rejected its constitutional claims because Croda did not have a vested right in a zoning category.

At the outset, the court noted that Croda’s complaint for declaratory and injunctive relief challenging Ordinance 19-046 was a “suit” challenging “the legality of any ordinance” and was therefore covered by Section 8126. Section 8126 was a statute of repose and, as such, the sixty-day deadline to bring claims challenging the legality of an ordinance was not subject to tolling. Thus, the Court of Chancery correctly held that it lacked jurisdiction to consider Croda’s untimely state law claims.

Croda next argued that the County deprived it of a protected property right to the free use of its land when it adopted Ordinance 19-046 without first providing Croda procedural due process protections. The Court of Chancery found that Croda did not have a protected property interest in the existing zoning classification. On appeal, the court did not reach this issue as Croda’s procedural due process claim failed from another fundamental defect: procedural due process protections do not apply to legislation of general applicability. Here, the amended Code was not aimed at Croda and its industrial property because it applied to all HI-zoned property in the County. Accordingly, the court affirmed the Court of Chancery’s judgment.

Croda, Inc v New Castle County, 2022 WL 2898848 (DE 7/22/2022)

This post was authored by Amy Lavine, Esq.

The Connecticut Supreme Court held in April 2022 that the Town of Bethel Planning and Zoning Commission unlawfully denied a special permit for the construction of a crematory in a business park that was located in one of the town’s two industrial zones. The decision reversed an earlier order from the state appellate court, which was discussed in a previous Law of the Land post. The court held on appeal that the commission failed to rely on any substantial evidence to support its denial because the testimony from community members wasn’t based on specific details relating to the proposed crematory facility and instead merely relied on generalized and speculative concerns about the environmental and economic impacts of crematory operations.

The court first addressed the standard of review as developed in Connecticut case law, explaining that special permits may only be denied based on general considerations if the reasons for such a denial are based on a fact–specific inquiry related to the particular site at issue. “Put differently,” the court noted, “although the considerations relevant to review of a special permit application can be general, the evidence bearing on those considerations cannot be…. Unless judicial review reveals substantial evidence to support such a particularized finding, then nonparticularized, general objections will be an insufficient basis for upholding a zoning commission’s denial of a special permit application.”

The court then reviewed the various evidence relied on by the commission. The only site-specific evidence the court found in the record consisted of a letter from the town’s health department advising that the crematory was unlikely to cause any adverse environmental effects and stating that it had no objections to the application. The letter also mentioned that town health officials had been advised by the state Department of Public Health that “if a small source such as this proposal follows the requirements of its [Department of Energy and Environmental Protection] permit, there should not be significant air quality issues.” In contrast, the court found that the other evidence relied on by the commission regarding emissions and adverse environmental effects was unsubstantiated and non-specific. For example, the testimony offered by “an engineering expert and neighboring property owner” referenced certain studies and data about emissions impacts, but none of the information he presented was site-specific or related to the proposed application.

The commission also based its denial on findings that the crematory was likely to have a detrimental effect on property values and economic development, but the court found again found a lack of substantial evidence to support these findings.  The court declined to give much weight to comments from the town’s economic development department, for example, because the department failed to cite any specific evidence for its belief that the crematory would interfere with plans to expand the business park, and in the absence of actual facts, this evidence “amounted to mere speculation that cannot provide support for the commission’s decision.” The commission also pointed to testimony from the owner of several properties in the business park who stated that he would put his parcels up for sale if the crematory was approved, and to a follow-up letter from the town’s economic development department stating that its “concerns recently became a reality when [the] property owner . . . put all of his seven . . . properties (both commercial and residential) on the market.” In the court’s opinion, however, this still did not amount to substantial evidence because there was no evidence that the properties were listed for sale specifically because of the proposed crematory, or that the values of the properties had been negatively impacted by the crematory’s special permit application.

Next, the court addressed comments from several nearby property owners relating to aesthetics, the crematory’s possible impacts on employees, and concerns about property values and the town’s economic development. The court found that this evidence was based on nothing more than speculative concerns and general opposition to crematories, and it pointed out that “if the commission cannot base its conclusion on general concerns, speculation, and mere worry, then it cannot base its conclusion on community members’ business development decisions, potential or actual, that are themselves reflections of concerns that are not site specific, speculation, and mere worry.” The court continued: “If we were to hold otherwise, individual members of a community would be able to block any special use permit application by pausing current developments or even by mere reference to hypothetical future intentions to do so due to unsubstantiated fears about future events, an approach that is wholly inconsistent with the obligation of local land use authorities to exercise their authority for the benefit of the community as a whole.”

The last piece of evidence relied on by the commission was testimony from the owner of a nearby organic farm. But while the farm owner claimed that his organic designation might be affected by the crematory’s emissions, the court found no actual evidence in the record about the negative impacts of crematory emissions on organic farming.

Finally, the court addressed the commission’s determination that the crematory did not comply with the regulations because it would require an “excessive” amount of excavation and fill activity, as well as the construction of several retaining walls. As the court noted, there was no evidence supporting the commission’s determination that the excavation and fill activity for the site would be “excessive,” nor did the commission explain why, or by what standards, it found that the site would otherwise be unsuitable for the proposed crematory. The court also dismissed the commission’s conclusion that the crematory wouldn’t comply with the regulations because it couldn’t be fully screened from the view of nearby properties, reiterating that these were merely general concerns that didn’t amount substantial evidence. As the court observed: “without evidence as to how the proposed facility is so stylistically inconsistent with the rest of the park that it would have a detrimental effect on property values therein, the fact that the proposed building and smoke stacks would be visible from the street does not support a finding that the proposed crematory is not suitable in relation to the rest of the park or that the visibility of that facility affects the value of the neighboring properties.” McLoughlin v. Planning & Zoning Comm’n of Bethel, 342 Conn. 737 (4/5/22).

This post was authored by Matthew Loescher, Esq.

Plaintiff, Pinecroft Development, Inc., applied for a building permit to construct a four-unit dwelling on a lot in the town of West Boylston that is split between a business zoning district (B district), where multiunit dwellings are allowed, and a single residence zoning district (SR district), where they are not. The building inspector initially denied the application because part of the building would be in the single residence zone. In reaching this decision, the inspector did not take section 2.4 into account. Pinecroft appealed to the board, which denied the permit for not meeting the “lot area” requirement of section 4.3.A.

In trying to reconcile these two sections, the court first found that because section 2.4 was limited to preexisting split lots, under the board’s interpretation, newly created split lots would be able satisfy dimensional requirements under the generally applicable rule, whereas preexisting split lots that qualify under section 2.4 would be required to satisfy dimensional requirements under a more restrictive standard. The court held that this interpretation of section 2.4, which subjected owners of preexisting split lots to more stringent standards than owners of newly created split lots, was unreasonable – especially as it found the bylaw’s plain language demonstrated a clear intention to do the opposite

The court next held the Board’s interpretation of section 2.4 could not be read in harmony with section 4.3.A, which required a minimum “lot area” of 10,000 square feet per unit. The court found that the term “regulations” in section 2.4 must be construed as referring to the “use regulations” in section 3 and not to the “dimensional requirements” in section 4, consistent with the general rules for split lots. However, the court noted that this construction did not render section 2.4 meaningless because, for preexisting split lots, section 2.4 extends permitted active uses by thirty feet, but no more. As such, Pinecroft could locate a four-unit dwelling on the property in the B zone and thirty feet into the SR zone, but it could not use the remaining portion of the property in the SR zone for any part of the dwelling or for ancillary uses, such as access roads or parking, associated with the dwelling. Since Pinecroft’s entire lot was 46,962 square feet, and section 4.3.A of the bylaw requires only 40,000 square feet of lot area for four-unit dwellings, the proposed project was in compliance with the minimum lot area requirement The judgment was therefore reversed, and the matter is remanded for entry of a new judgment directing the Board to grant Pinecroft’s building permit application.

Pinecroft Development, Inc. v Zoning Board of Appeals of West Boylston, 101 MASS. App. Ct. 122 (6/3/2022)

This post was authored by Matthew Loescher, Esq.

A developer applied to the City’s Planning and Zoning Commission for approval of a preliminary plat for a new 89-home subdivision, Patience Ranch, neighboring Escalera Ranch to the north. As planned, Escalera Parkway would provide the only access to homes in the new subdivision. Following its determination that the Patience Ranch development conformed to applicable requirements, the Commission approved the plat as required by statute. The Escalera Ranch Owners’ Association sued the Commission members in their official capacities, asserting that the Patience Ranch plat was nonconforming and that their approval of the plat was a clear abuse of discretion.

On appeal, the court noted that after concluding that the plat conformed, the Commissioners approved it as required by statute. Even assuming the Commissioners were incorrect in their conclusion, the Commissioners did not exceed the scope of their authority – especially as the Association did not allege that the Commissioners made the conformity determination based on improper considerations. Here, the Association claimed that the Commissioners simply got the determination wrong; however, neither the UDC nor State law allows third parties to second-guess the Commission’s decision in this way. As the Commissioners adhered to this duty in determining that the Patience Ranch preliminary plat conformed to the applicable standards, the trial court lacked jurisdiction to compel a contrary determination by mandamus. The court therefore reversed the judgment of the court of appeals and dismissed the Association’s claims for lack of jurisdiction.

Schroeder v Escalera Ranch Owners’ Association, Inc., 646 S.W. 3d 329 (TX 2022)

This post was authored by Matthew Loescher, Esq.

Plaintiff, the Town of Coventry, appealed from the Kent County Superior Court’s November 4, 2019 entry of final judgment in favor of the defendants, Forsons Realty LLC, Ferrara Mechanical Services Inc., and Daniel Ferrara. On appeal, the Town argued that the trial justice erred: in allowing the defendants to conduct heavy-duty vehicle inspections on their property that was the site of a pre-existing legal nonconforming use; and in holding that there had not been an impermissible expansion of that legal nonconforming use.

The court first noted that while it found the trial justice did not err in allowing heavy-duty vehicle inspections to be conducted to a carefully limited extent, it did not agree with the portion of the decision setting forth that the right to conduct such inspections would not run with the land. Conversely, the court found that the legal nonconforming use of heavy-duty truck repair on the property, required the vehicle inspections to remain permissible so long as that legal nonconforming use continues unabandoned and unabated.

The Town argued that the trial justice erred in ruling that the increase in the volume of business on the property did not constitute an impermissible expansion of the legal nonconforming use. Here, the record reflected that – notwithstanding some relatively minor increase in the volume of business and associated activities – the manner in which defendants had used the property remained substantially unchanged since the time when their predecessor-in-title operated his business on the property, and the types of business activity being conducted on the property had not changed. The court further found that the trial court had been sensitive to the effect on the neighborhood of the increase in business and activity on the property, and therefore included meaningful remedial measures. Accordingly, the court affirmed the judgment of the Superior Court.

Town of Coventry v Forsons Realty, LLC, 276 A. 3d 910 (RI 6/23/2022)