This post originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.

By Andrew L.W. Peters 

The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall:  those of the United States, the Commonwealth of Massachusetts, and the City of Boston.  From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another.  The Pride Flag has flown above City Hall, and so too the flag of a community bank.

When Harold Shurtleff approached the city about hosting a Christian event and hoisting a “Christian flag,” however, the city demurred.  A Christian event in City Hall Plaza was fine, officials explained, but raising the religious flag could create Establishment Clause concerns, they worried.  The city therefore rejected Shurtleff’s request.

Litigation followed, with Shurtleff arguing that the denial abridged his First Amendment right to free speech. Both the district court and the First Circuit sided with Boston, reasoning that the city could control access to the flagpoles as a matter of government speech.  The Supreme Court reversed, with all nine justices joining in the judgment.

Although the government speech doctrine has expanded in recent years across cases like Pleasant Grove City v. Summum (monuments) and Walker v. Texas Div., Sons of Confederate Veterans (vanity license plates), the Court identified the government’s control over the medium and the message as a significant consideration tying the doctrine together.  That factor proved dispositive here.  While Pleasant Grove City and the State of Texas actively controlled the monuments and license plates they selected, Boston’s involvement with the City Hall Plaza flagpoles was limited to processing applications and avoiding scheduling conflicts.  Until it turned down Shurtleff’s proposal, the city had never declined to raise another flag.  Boston also lacked any policy as to what flags it would fly or what messages they could communicate, and in fact described the plaza as among the city’s “public forums.”  None of those facts established the requisite control over the medium and message for Boston to assert that the flags were government speech.

Having concluded that the flags were not government speech, the Court analyzed Boston’s denial as a straightforward matter of viewpoint discrimination and concluded it was unconstitutional.

Justice Kavanaugh joined in the opinion and the judgment but wrote separately to remind government officials that the Establishment Clause permits (and requires) governments to treat religious persons, organizations, and speech equally with their secular counterparts.

In an opinion concurring in the judgment, Justice Alito, joined by Justices Thomas and Gorsuch, rejected Walker’s three-factor government-speech test, used again here: history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.  Justice Alito instead proposed that government speech “occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

Finally Justice Gorsuch added another opinion concurring in the judgment, and joined by Justice Thomas, decrying the Court’s Establishment Clause jurisprudence under Lemon v. Kurtzman as confusing, outmoded, and in need of reform.

Shurtleff v. City of Boston ___ S. Ct. ___ (May 2, 2022)

This post was authored by Sebastian Perez, Touro University Jacob D. Fuchsberg Law Center

Appellant purchased real property that was zoned for commercial use but had a lawful non-conforming house in which he and his family lived in until 2017. In 2018, Appellant sought to redevelop the land and applied to the City of Burnsville for approval of a preliminary and final plat of the property, a conditional use permit (CUP), and variances related to signage and land grading. In response to the application, the City’s planning commission recommended Appellant pay a park-dedication fee in the amount of $37,804. Appellant asked the City to waive the fee arguing that the redevelopment would not result in a need for more parkland or park services. The city council reviewed the planning commission’s recommendations and later reduced the park-dedication fee to $11,700. Appellant maintained his objection to the fee and the city council reviewed the application for a second time. At a later city council meeting, the city attorney reasoned the park-dedication was necessary because business development generally increased the demand on public parks and such fees helped address that need. The council denied the request for a waiver of the park-dedication fee and Appellant commenced an action in District Court for review of the decision. The District Court concluded the imposition of the fee was lawful. This appeal followed.

The Court of Appeals looked to a state statute regulating subdivisions which permitted an ordinance to require a “reasonable portion” of the buildable land to be set aside for public use after the municipality “reasonably determined” it would need to acquire a portion of the land for purposes related to its comprehensive plan. Alternatively, the statute provided the municipality to accept a cash fee instead of taking a reasonable portion of the land which would fund the development of public services and not for the maintenance of existing public services. Whether the municipality takes a reasonable portion of land or accepts a cash payment, there must be an essential nexus between the fees or dedication and the municipal purpose sought to be achieved by the fee or dedication, and the fee or dedication must bear a rough proportionality to the need created by the proposed subdivision or development.

The Court reviewed the statute’s relevant part using a deferential standard of review and asked whether the lower court’s decision was unreasonable, arbitrary, or capricious which required a two-step process. First, the Court needed to determine whether the reasons given by the city were legally sufficient and if so, second, whether the reasons had a factual basis in the record. For the first prong, a legally sufficient reason was not provided because the City failed to show a need for the acquisition and development of a portion of land due to the subdivision’s approval. Therefore, the City’s decision to impose a park-dedication fee on Appellant’s development application did not have a proper legal basis. For the second prong, a brief discussion about the Appellant’s application at a city council meeting was not a sufficient factual basis. The City only offered, as an exhibit, a transcript of the city council meeting which did not overcome the Court’s deferential standard of review. Therefore, the Court decided the park dedication fee did not have a proper factual basis.

Next, the Court addressed the Appellant’s challenge to the factual basis of the City’s reasons for imposing the fee by defining the statute terms “essential nexus” and “rough proportionality”. With guidance from Nollan, an essential nexus was found when the City imposed a park dedication fee to preserve and improve parkland from Appellant’s development of his property. Further guided by Dolan, a rough proportionality was also not found because the City failed to make an individualized assessment of the impact from the proposed development by simply applying a formula. Therefore, the Court found the City was in violation of local law when it imposed a park dedication fee on Appellant’s development application.

The Court held that the City’s imposition of an $11,700 park dedication fee was arbitrary and capricious and reversed the lower court’s decision.

Puce v City of Burnsville, 2022 WL 351119 (MN App. 2/7/2022) 

This post was authored by Sebastian Perez of Touro University Jacob D. Fuchsberg Law Center

Plaintiff Brett Oakley owned and operated Land of Illusion Adventure Park (LOI) located in Madison Township, Butler County, Ohio. Per Madison Township’s Zoning Map, the land LOI was located on was zoned B-3 General Business. In March 2020, LOI sought a zone change for a BPUD and alleged that the request came at the recommendation of Butler County planning staff. The zone change application included a plan for a campground, a themed hotel, an indoor water park, a family entertainment center, an expansion of the existing outdoor water park, and an amusement park. At the preliminary stage, the Butler County Planning Commission unanimously recommended approval of the zone change application. However, Plaintiff alleged that the Butler County Rural Zoning Commission unanimously recommended denial of the application. Oakley withdrew his application before the hearing in front of the Butler County Board of County Commissioners (Commissioners) to amend the application and incorporate changes suggested by the Butler County Planning Staff. The Butler County planning staff changed their recommendation for approval of the application to a denial and the Plaintiffs alleged no reason was offered for the denial. The Butler County Planning Commission also changed its vote to deny the application and the Plaintiffs alleged again no reason was offered. The Butler County Rural Zoning Commission also denied the application and the Commissioner’s made several findings concerning Plaintiff’s application.

In Counts 1 and 2 of the complaint, the court analyzed the plaintiffs’ federal, and state due process claims together. Beginning with substantive due process, plaintiffs had to allege facts that they possessed a constitutionally protected liberty or property interest, and the property interest was deprived through arbitrary and capricious action. Plaintiffs alleged that they had a protected property interest under the Fifth and Fourteenth Amendments in the ownership and development of the property as proposed in the preliminary PUD plan submitted to Butler County. Plaintiffs claim this right existed because they relied on the suggestions and instructions from Butler County planning staff and expended significant sums to design, plan, and create LOI. Defendants argued that their motion for a judgment on the pleadings on the plaintiff’s due process claims should have been granted because they had no protected property interest in the requested zoning. Defendant’s contended that the Commissioners: retained the discretion to approve or reject the plaintiff’s zoning request, they specifically identified numerous criteria that showed the plaintiff’s application was denied for not meeting Zoning Resolution requirements and that a property interest was not created by the plaintiffs’ reliance on alleged recommendations by defendants before the submittal of the rezoning application. The Court found that the Ohio Revised Code, on its face, granted legislative discretion to the Commissioners to approve or reject a proposed development. The Court also rejected the plaintiffs’ argument that the defendants lacked such discretion because the statute, in this case, did limit the Commissioner’s authority like in Ritz. The Court determined, as a matter of law, that Plaintiffs couldn’t establish a protected property interest and failed to state a plausible substantive or procedural due process claim. Additionally, the Court determined that the Commissioner’s discretion was distinguished from Oberer because such authority was preserved despite Plaintiff’s alleged compliance with all zoning requirements. The Court went on to find that Plaintiff’s alleged liberty interest based on staff recommendations was without merit and was guided by Braun.

For procedural due process, plaintiffs alleged that their rights were violated when they deferred their initial plans to continue with their omnibus application at the recommendation and encouragement of Butler County planning staff but received a denial of the application for rezoning and a preliminary BPUD. The Court was guided by the 3 required elements in Taylor Acquisitions to successfully raise a procedural due process claim: possession of a liberty interest, deprivation of that interest, and failure of the state to provide adequate procedural rights before depriving such interest. The Court decided that it was already determined plaintiffs did not possess a liberty interest here and recommended that the plaintiff’s motion for a judgment on the pleadings be granted concerning the state and federal procedural due process claims.

For counts 5 and 6, the Court determined that the state and federal equal protection clauses had the same standards apply and would analyze the claims together. Plaintiffs alleged that their equal protection rights were violated because they were treated differently as compared to other similarly situated property owners when their application for a preliminary BPUD was denied with no rational basis for the discriminatory treatment. Defendants argued that plaintiffs were not treated differently because the county has only approved a small number of zone change applications over the last 10 years. The Court analyzes the equal protection claim under the “class of one” theory” where the plaintiff had to allege facts showing defendants treated plaintiffs differently from others similarly situated and that there is no rational basis for such difference in treatment. Plaintiffs failed to state sufficient facts to demonstrate they were similarly situated and treated differently because merely stating “upon information and belief” without more specificity does not satisfy Iqbal and Twombly. Additionally, the Court did not find defendants acted with ill will or animus towards the plaintiffs and therefore recommended that the defendant’s motion for judgment on the pleadings be granted concerning the plaintiffs’ federal and state equal protection claims.

L.O.I. Property, LLC v Butler County, OH, 2022 WL 426097 (SD OH 2/12/2022)

This post was authored by Matthew Loescher, Esq.

ExteNet Systems, Inc. – which builds and operates telecommunications infrastructure, including “small wireless facilities” that house low-power antennas to improve network connectivity – operates under a Certificate of Public Convenience and Necessity (“CPCN”) from the New York State Public Service Commission. For roughly seven years, ExteNet has been under contract with Verizon Wireless to build and operate small wireless facilities throughout Long Island. In March 2019 the Board adopted Article VIII to Chapter 209 of the Village Code, which now regulates the approval process for small wireless facilities. At a public meeting held on September 3, 2019, the Board for the Village of Flower Hill voted on ExteNet’s application and unanimously denied it.

Upon review of the record, the court found there was substantial evidence justifying the Board’s conclusion that there was no gap in coverage justifying ExteNet’s application. While ExteNet contended that the Village allowed Altice USA to install small wireless facilities without prior permission, the court found the comparison was not apt. Specifically, Altice One is a cable provider to whom the Village was legally required to offer access to its rights[1]of-way. Moreover, Altice USA offers cable and WiFi access, while ExteNet – by its own admission – stated these were not equivalent to the cell service provided by its small wireless facilities.

ExteNet next claimed that the Board’s denial violated §27 of New York’s Transportation Corporations Law, which governs telephone and telegraph corporations, and provides that “any such corporation may erect, construction and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets, and highways.” The court determined that the statute required that the corporation must “first obtain from … the trustees of villages … permission to use the streets within such … village … for the purposes herein set forth.” Here, it was undisputed that ExteNet did not receive such permission. As such, the Village’s motion for summary judgment was granted and ExteNet’s motion was denied.

Extenet Systems, Inc. v Village of Flower Hill, 2022 WL 3019650 (EDNY 7/29/2022)

This post was authored by Matthew Losecher, Esq.

Plaintiffs Peter Scotti & Associates, Inc. and Building Bridges Providence, sought review of the Providence County Superior Court’s decision to deny and dismiss all claims in plaintiffs’ second amended complaint. That judgment followed a decision of the Superior Court that it would not invalidate the zoning amendment at issue under G.L. 1956 § 45-24-71. On appeal, plaintiffs contend that legislative deference should not apply to a § 45-24-71 challenge and that the amendment was inconsistent with Providence’s comprehensive plan entitled “Providence Tomorrow: The Comprehensive Plan”.

The Rhode Island Zoning Enabling Act (ZEA) “requires that zoning ordinances be developed and maintained in accordance with a comprehensive plan prepared pursuant to the Rhode Island Comprehensive Planning and Land Use Regulation Act (CPLURA).” Plaintiffs first assigned error to the hearing justice in not finding persuasive their argument that Map 11.3 was proof that the Comprehensive Plan establishes a maximum height on the subject parcel of one hundred feet and that the Amendment was not in conformance with the Comprehensive Plan. The court found that Map 11.2 designated the subject parcel as “Downtown/Mixed Use”, and that Table 11.2 specifically noted that in downtown/mixed-use areas in order to promote economic development while maintaining compatibility between uses, sub-districts may be established to address building height. The Comprehensive Plan further set forth that in mixed-use areas, “greater residential density and building heights could be accommodated to create a more efficient pattern of development and protect the character of the residential neighborhoods.” As such, the court found it would be illogical to interpret Map 11.3 as providing a cap on building height while Map 11.2, the Official Land Use Map, and Table 11.2 specifically allowed for sub-districts to address building height in the same area.

The plaintiffs next argued that the Amendment was not in conformance with the Comprehensive Plan because the height change in the Amendment was violative of what was provided for in the Knowledge District Plan. While the Comprehensive Plan referenced neighborhood plans and their role in future development in Providence, plaintiffs failed to identify any language that specifically incorporated the Knowledge District Plan into the Comprehensive Plan. Specifically, none of the language cited evidenced an express intention to incorporate the Knowledge District Plan into the Comprehensive Plan to an extent that the failure to adhere to the height restrictions in Figure 7-4 in the Knowledge District Plan would be enough to render the Amendment invalid.

Lastly, the plaintiffs contended that “entirely lacking from the approval process was any consideration of the Knowledge District Plan,” particularly by the Ordinance Committee and the City Council. The record reflected, however, that the Knowledge District Plan was referenced at various times throughout the approval process relative to the Amendment before the City Plan Commission, the Ordinance Committee, and the City Council. As such, plaintiffs failed to meet their burden to rebut the presumption of validity of the Amendment based on the supposed failure of consideration of the Knowledge District Plan during the approval process. The court therefore affirmed the judgment of the Superior Court.

Peter Scotti & Associates v Yurdin, 276 A. 3d 915 (RI 6/23/2022)

This post was authored by Amy Lavine, Esq.

The New York County Supreme Court ruled in March that a new environmental review was required for a New York City program that was commenced during the Covid-19 pandemic to expand seating options for bars and restaurants.

Following the first wave of the Covid-19 pandemic, former Mayor de Blasio issued Emergency Executive Order No. 126 in June 2020 to allow bars and restaurants to use sidewalks and curbside areas for outdoor seating. The executive order directed the city’s Department of Transportation to establish an expanded outdoor seating program and to the extent necessary it also suspendeded zoning requirements and other administrative rules related to sidewalk cafes and similar property uses.

The Department of Transportation subsequently deternined that the program would have no significant environmental impact and therefore a full environmental review was not required. The petitioners challenged this determination, claiming that the city was required to take a “hard look” at the program’s environmental impacts under the State Environmental Quality Review Act, including impacts such as noise, traffic, parking, and sanitation, and contending that the Department’s negative declaration amounted to a pre-judgment because it was issued before essential parts of the program were developed or finalized.

The court agreed with the petitioners, finding that SEQRA “sets a low threshold for requiring impact statements” and as applied in this case, a full environmental review was presumptively required because the program’s zoning changes were a Type I action under SEQRA. As the court further explained:

While SEQRA contemplates environmental studies and public comments before the enaction of a proposed program, here, the dining program was enacted, initially temporarily, as part of COVID emergency declarations by former Governor Cuomo and former Mayor DeBlasio. Thus, the consideration of environmental impacts here is not merely an abstract undertaking or municipally-provided nicety, but warrants nothing less than a comprehensive and earnest consideration and examination of the actual impacts of the already implemented program upon the daily functioning of the City’s sidewalks and streets, as well as the impact upon locally affected residents.

The court found that the program’s implementation “at a minimum, impacted traffic and noise levels, and may have significantly impacted sanitation.” There was “plain evidence” that complaints had increased in areas where the program was implemented, and in light of the evidence the court found that it was arbitrary and capricious for the Department to determinae that the program had no signigicant impacts on the environment. The court also rejected the Department’s claim that it was not required to undertake a full environmental review because the program was temporary and not fully developed. As it explained:

This is the very definition of impermissible pre-judgment. Put differently, where the essential components of a program have not yet been established, the agency cannot issue a negative declaration that the potentially changing program will not have significant environmental impacts. For a taxpayer supported agency to declare, in effect, the Open Restaurants Program and Outdoor Seating have no negative impact on our streets and communities because that Agency has unilaterally made that determination, serves only as a thinly-veiled attempt to avoid statutory scrutiny of the program by a baseless declaration of its own omnipotence. Any assertion otherwise warrants no further discussion.

Accordingly, the court annulled the Department’s negative declaration and directed it to undertake a new environmental review, including the preparation of an environmental impact study and a public comment process.

Arntzen v City of New York, 2022 NY Slip Op 30955(U) (NY Sup Ct NY County 3/23/22).

This post was authored by Sebastian Perez, Touro University Jacob D. Fuchsberg Touro Law Center

Sunshine owned a facility that cared for disabled and chronically ill children in the Town of New Castle. The facility was in a residential district and operated under an existing special use permit originally issued in 1964. The special use permit was originally to operate a sanitarium for children with chronic asthma, but the facility eventually began to house and treat with a variety of disabilities. In 2014, Sunshine filed an application with the ZBA to amend the special use permit to expand the facility and another application for an area variance from the requirement that nursing homes must front on or have direct access to a state or county road. In 2015, the Town Building Inspector sent Sunshine an email stating it did not need a variance from the nursing home requirement because its use as such predated the addition of that requirement to the Town Zoning Code. In 2016, the ZBA granted both the application for the amended special use permit and for a variance from the nursing home requirement. Neighboring property owners commenced the Article 78 seeking to review the ZBA’s determination granting Sunshine’s applications and the Supreme Court denied the petitions and dismissed the proceedings. This appeal followed.

The Appellate Division agreed with the lower court finding support in Town Law § 274-b(3) which vested a ZBA with authority to grant an area variance from any requirement in a zoning regulation. The Court also relied on Town of New Castle Zoning Code § 60-54(D)(2)(d) providing a proposed special use permit containing one or more features which do not comply with the zoning regulations, for an application to be made to the Board of Appeals for an area variance. However, the Court also found the lower court erred in determining that petitioners needed to exhaust their administrative remedies by appealing the Town Inspector’s email because the email was not filed as required by Town Law § 267-a(5).

Manocherian v. Zoning Board of Appeals of the Town of New Castle, 2022 WL 164212 (NY AD 2 Dept 01/19/2022) 

This post was authored by Sebastian Perez, Touro University Jacob D. Fuchsberg Law Center

Michael Mogan bought a condominium (the “Unit”) in 2004 in the City of Chicago (the “City”) with plans to list it on home sharing websites to generate leasing revenue. Mogan spent thousands of dollars on the Unit and began leasing it to various tenants in 2009 for periods ranging from nightly to yearly. In response to the popularity of home sharing websites, the Chicago City Council passed the Shared Housing Ordinance (the “Ordinance”) in 2016 which regulated the home sharing industry. The Ordinance took effect in late 2016 and enforcement against non-compliant hosts began in 2017. The Unit’s building management accused Mogan of violating the homeowner’s association Declarations (the “Declaration”), which restricted the subleasing of a Unit for a period of less than 30 days, and threatened him with fines or the HOA board taking adverse action against him for listing the Unit on Airbnb. Mogan’s lawsuit against the City followed.

Mogan brought eleven claims against the City and one claim against the homeowner’s association of the Unit (the “HOA”). The single claim against the HOA sought a declaratory judgement regarding his ability to lease the Unit on home sharing websites. Mogan’s ten remaining claims were brought against the City and challenged the constitutionality of the Ordinance. Those claims included: a Fifth Amendment taking violation, an inverse condemnation under Illinois law, substantive due process and equal protection violations, First Amendment freedom of speech and assembly violations, Eight Amendment excessive fines violation, and an unconstitutional license for revenue under the Illinois constitution. The City then moved to dismiss Mogan’s complaint for lack of subject matter jurisdiction.

The City first argued that Mogan lacked standing because the Ordinance had not yet been enforced against him. The District Court disagreed with the City and found that Mogan sufficiently alleged a threat of prosecution and satisfied the injury in fact requirement when the City deployed code-enforcement officers to enforce the Ordinance and had collected $100,000 in fines. Mogan’s alleged injuries were also found to be “fairly traceable” to the City because were it not for the enactment of the Ordinance, he would list the Unit on Airbnb. Redressability was also found to be satisfied because Mogan’s requested relief against the City would compensate the injuries of not having been able to list the Unit on Airbnb.

The City next argued that the Court should dismiss Mogan’s takings, inverse condemnation, substantive due process, and frees speech claims as untimely under the relevant statute of limitations. Mogan argued that his claims did not begin to accrue at the time the Ordinance was enacted but rather when he was notified by the HOA that the Unit’s building was placed on a list that would be subject to the Ordinance. The Court found there was not enough facts in the record to determine when and how Mogan discovered the Ordinance’s applicability to the Unit and refused to dismiss the takings and inverse condemnation claims. However, the Court found Mogan did not sufficiently allege the three factors to bring a regulatory takings claim and dismissed his Fifth amendment takings claims and Illinois inverse condemnation claims without prejudice.

The City next argued that the equal protection claim failed because a rational basis existed for the differential treatment between vacation rentals and shared housing units from hotels and bed-and-breakfasts. Mogan contended that a legitimate government interest did not exist because the differential treatment was a personal attack by the City and was therefore an improper motive. The record sufficiently demonstrated that a potential rational basis for imposing a minimum night stay on vacation rentals and home sharing units was to protect the City’s legitimate interest in local neighborhood preservation, continuity, and stability. At the pleading stage, the City only needed a conceivable rational basis for the difference in treatment and the Court dismissed the equal protection claim with prejudice. Similarly, the Court also dismissed Mogan’s substantive due process claim with prejudice because a rational basis for the Ordinance was already determined. The Court had dismissed all of Mogan’s constitutional claims and concluded that no case or controversy existed for it to maintain jurisdiction over Mogan’s claim for a declaratory judgment against the City. Therefore, the Court granted the City’s motion to dismiss.

Mogan v. City of Chicago, 2022 WL 159732 (IL D. Ct. 01/18/2022)

This post was authored by Tyler Doan, JD

Defendant owns property, which included a large home and a sizable area for cars which consisted of ground up asphalt, that was deeded to Defendant’s trust. Defendant lived at the home until December 2018. An oral lease agreement was entered into at the beginning of 2019 to which tenants would be paying to live in the large home. Throughout 2019, Defendant had posted ads for non-tenant parking for hire, on which non-tenants could place their cars on the property for a fee. Testimony revealed that up to 26 vehicles had been parked or stored on the property; a mix of both tenant and non-tenant vehicles. Plaintiff brough suit for a number of claims including public nuisance, conspiracy to create a public nuisance, and violations of the local zoning ordinance for operation of a parking and storage facility in a single family residential zone, operating a boarding house, storing trucks in excess of allowable weight and at unlawful times, parking a trailer, not using required hard surface for the standing, loading and unloading of motor vehicles, and parking unlicensed vehicles on the property. Plaintiff filed a motion for partial summary judgment. Throughout litigation, the defendants had counsel withdraw and missed deadlines for answers. The trial court denied motions to extend the ability to reply on two separate occasions. The trial court granted Plaintiff’s motion for partial summary judgment for the home occupations violations and entered a permanent injunction enjoining the defendants from operating a boarding house or a parking or storage facility, or engaging in unlawful home occupations. The court found there to be issues of fact for the public nuisance and conspiracy claims.

Defendants appeal on three grounds: whether the trial court erred when it denied their motion to extend and when it granted partial summary judgment in favor of Plaintiff, and whether the defendants where denied due process. First, the Appellate Court reasoned that simply there was no good cause to grant the motion to extend, in light of Defendant’s argument of improper service. Secondly Defendant’s argued that there was good cause due to counsel’s motion to withdraw. This was also found insufficient as there were significant facts at the hearing for the motion to withdraw which implied that there was waiver of any issues which may arise. The court expressly stated that substitution of counsel did not constitute good cause. The Appellate Court affirmed the lower court’s denial of the motion to extend. Second, the Appellate Court reasoned that since the defendants had, in essence, admitted to operating a boarding house, leased rooms on a month-to-month basis with oral leases, and allowed vehicles to park on the property for payment, all in violation of the zoning ordinance, in addition to sworn statements and evidence from prior tenants, there were no issues of material fact which would prohibit the court from granting summary judgment in favor of the Plaintiff. The Appellate Court additionally reviewed and affirmed the permanent injunction to stop the Defendants from operating a boarding house or for storage or parking of vehicles. The court states that “To be entitled to a permanent injunction, the movant must establish (1) he has a clear and ascertainable right in need of protection, (2) he will suffer irreparable harm if the injunction does not issue, and (3) there exists no adequate remedy at law.” The Court determined that Plaintiff had a clear an ascertainable right as the defendants have engaged in operating a boarding house and parking and storage facility consistently. Also the Plaintiff had established that they will suffer harm if the injunction was not issued since the Defendants would continue to use the property for improper uses. Lastly, that there are no adequate remedies at law since monetary relief is not applicable in the situation.

The last issue the Appellate Court addressed and denied that the Defendants were denied due process when the court failed to extend the deadlines to answer. The Court reasoned that since there were agreed upon scheduling and the Plaintiff adhered to the deadlines and provided service of the motions via email and regular mail to Defendant’s counsel and substitute counsel, and the Defendant’s still did not comply with the deadlines, there was no violation of due process.

The Appellate Court Affirmed all decisions of the trial court.

Fredrick v. Gaca, 2020 IL App (3d) 200154 (2020)

This post was authored by Matthew Loescher, Esq.

Formation-Shelbourne was the prospective purchaser of property owned by the respondent Alfred H. Krautter and located in the Town of Greenburgh. Formation-Shelbourne applied to the respondent Town Board of the Town of Greenburgh for a special permit in relation to its proposed construction of an assisted living facility on the property. Following a hearing, the Town Board approved a resolution granting Foundation-Shelbourne a special permit for the project. The individual petitioners/plaintiffs, who resided in the vicinity of the proposed facility, together with the petitioner/plaintiff organizations, commenced this hybrid proceeding pursuant to CPLR article 78 to review the Town Board’s determination, which granted the application of the defendant Formation-Shelbourne Senior Living Services, LLC, for a special permit related to the proposed construction of an assisted living facility, and action for related declaratory and injunctive relief. In this case, petitioners appeal from an order and judgment of the Supreme Court, Westchester County that granted the separate motions of the defendants to dismiss the petition/complaint.

Here, while the court noted that an allegation of close proximity may give rise to an inference of damage or injury that enables a nearby property owner to challenge a land use decision without proof of actual injury, the individual petitioners/plaintiffs failed to establish that their properties were located in sufficient proximity to the proposed development to give rise to such an inference. Moreover, the petitioners/plaintiffs’ generalized allegations that the Town Board’s determination could result in a public safety hazard failed to set forth an actual injury distinct from that suffered by the public at large. Since the standing of the petitioner/plaintiff organizations—Council of Greenburgh Civic Associations and Edgemont Community Council—was dependent upon the standing of the individual petitioners/plaintiffs, the petitioner/plaintiff organizations also lack standing. Accordingly, the order and judgment of the trial court was affirmed.

Council of Greenburgh Civic Associations v Town Board of the Town of Greenburgh, 2022 WL 468421 (NYAD 2 Dept. 2/16/2022)