This post was authored by Amy Lavine, Esq.

This case involved  a 500-foot food truck restriction. The court found it significant that the distance restriction was much larger than the restrictions that have been upheld in other food truck cases, and it also emphasized that the ordinance applied throughout the city rather than being confined to particular areas. As the court concluded: “the 500-foot Ban was specifically drafted for only one purpose: to favor one type of commerce over another; to prevent competition. The Court cannot read the ban any other way; it clearly does not appear to be rationally related to any legitimate end, such as the promotion of public health, traffic congestion, or safety, which are all within the purview of the City’s broad police power. As a matter of law, protectionism, by itself, is not a valid exercise of a police power.”Diaz v. City of Fort Pierce, 2019 WL 1141117, 2019 Fla. Cir. LEXIS 74 (Fla Cir 2/22/19)

This post was authored by Amy Lavine, Esq.

The Maryland Court of Appeals upheld an ordinance that restricted food trucks from parking within 300 feet of brick-and-mortar restaurants. The court found that the correct standard of review was the rational basis test, rather than the heightened “real and substantial relation” test, which the Maryland courts apply under the state constitution’s due process clause when a statute “entirely prohibits a person from practicing a trade.” As the court explained, this heightened standard of review was not implicated by the food truck ordinance because the 300-foot rule did not actually prevent food truck vendors from pursuing their chosen vocation. Instead, the ordinance merely regulated the places where they could conduct business and it was undisputed that the ordinance allowed food truck vendors to operate at some locations within the city. Accordingly, the correct standard of review was the rational basis test, which required the court to consider whether the 300-foot rule was rationally related to any legitimate government interest. The food truck vendors argued that the purpose of the ordinance was to protect brick-and-mortar restaurants from competition, and that this sort of economic protectionism did not qualify as a legitimate government interest. But as the court explained, protecting brick-and-mortar restaurants was “not an end in itself, but rather [was] a means to an end: maintaining vibrant commercial districts.” This was certainly a legitimate government interest, the court found, and the record before the court showed that protecting brick-and-mortar restaurants from food truck competition “protects the contributions brick-and-mortar establishments make to the City’s commercial districts,” “promotes entrepreneurial investments and opportunity,” and “diversifies the marketplace to maximize positive economic effect by creating meaningful choices for the consumer.”

Pizza Di Joey, LLC v. Mayor, 470 Md. 308 (8/17/20).

This post was authored by Matthew Loescher, Esq.

In this case, a farmer brought action against operator of neighboring confined animal feeding operation (“CAFO”) and against operator’s subsidiary, which owned additional land adjacent to farm, for common law nuisance, trespass, and violations of drainage law. Farmer moved to strike operator’s and subsidiary’s affirmative defenses, including that of statutory immunity. The District Court, Emmet County, denied farmer’s motion to strike and granted defendants’ motion for summary judgment, holding that statutes providing immunity from nuisance suits to animal feeding operations and capping damages in such suits did not violate Inalienable Rights Clause. In this appeal, the defendants and amici curiae renewed their prior arguments to overrule Gacke v. Pork Xtra, L.L.C.’s controversial three-part test under the inalienable rights clause, article I, section 1 of the Iowa Constitution.

At the outset, the court noted the Gacke test is difficult to administer and requires unnecessary and duplicative litigation. By overruling Gacke, the court reasoned that it would eliminate the need to adjudicate its subsidiary issues, such as defining when neighboring claimants who raise livestock personally receive a “benefit” from section 657.11(2) under the first part of Gacke’s three-part test. The second part of the Gacke test, that the plaintiff “sustain[ed] significant hardship,” required much the same evidence that would prove the CAFO was a nuisance as well as meet the statutory exception to immunity. Similarly, the third part of the test, that the plaintiff resided on their property before the CAFO commenced, would involve the same evidence required to show the plaintiff did not come to the nuisance under common law. Based on the aforementioned, the court found that the Gacke test here would require two trials, at which the same evidence would be presented to decide functionally equivalent, overlapping issues. Accordingly, the court overruled Gacke’s three-part test under the inalienable rights clause and instead applied a rational basis review.

Under a rational basis review, the court found protecting and promoting livestock production was a legitimate state interest, and granting partial immunity from nuisance suits was a proper means to that end. Furthermore, Section 657.11(2) did not eliminate nuisance recovery rights altogether: neighboring property owners could recover for nuisance when the damage resulted from the CAFO’s failure to comply with a federal or state statute or regulation, or when the CAFO “unreasonably and for substantial periods of time interferes” with the plaintiff’s use of their property and the CAFO “failed to use existing prudent generally accepted management practices reasonable for the operation.” Litigants could also continue to seek recovery for diminution in property value under a takings theory. Accordingly, the court affirmed the district court’s denial of Garrison’s motion to strike the defendants’ affirmative defenses based on that statutory immunity.

Lastly, without accompanying expert testimony, the court found Garrison’s water tests did not show an increase in nitrate levels nor a spike in nitrate levels that would correlate with manure spreading. Moreover, even assuming an increase in nitrate levels, Garrison lacked expert testimony to attribute or correlate any increase in nitrate levels in the stream to the defendants’ actions. As such, Plaintiff could not, as a matter of law, meet his burden of proving that any trespass or drainage violation proximately caused any damage to the Plaintiff. Likewise, the record was devoid of any evidence showing Garrison’s property was damaged by any increased drainage or by any excess nitrate in the water flowing through his property. The court therefore found the defendants were entitled to summary judgment on this record.

 Garrison v New Fashion Pork, LLC, 977 NW 2d 67 (IA 6/30/2022)

This post was authored by Matthew Loescher, Esq.

The City of Gautier granted David Vindich a permit to build a 1,410 square foot garage/workshop on his .76-acre lot. When the building was almost completed, Vindich’s neighbor, Martin Wheelan, filed a lawsuit in the Jackson County Chancery Court, arguing the City’s decision was unlawful since Vindich actually sought a variance, which required a public hearing rather than a building permit. After a trial, the chancellor dismissed Wheelan’s claims, finding that the City’s interpretation of the applicable ordinance was not manifestly unreasonable. The chancellor further found that the building was not a nuisance. Wheelan appealed, and the Court of Appeals affirmed.

The record reflected that the Planning Commission agreed that the Unified Development Ordinance was not clear but nevertheless voted four to three to reverse the Building Department’s decision and allow Vindich to build the workshop. The Building Department advocated for its interpretation that all accessory buildings combined together could not exceed 50 percent of the home’s square footage. In another vote, the City Council accepted the Planning Commission’s decision to allow Vindich to build the 1,400 square foot workshop. The City’s exact interpretation of the Unified Development Ordinance was absent from the record; however, the City presented in its brief that it interpreted the phrase “main building area” to mean the entire lot.

The court noted that the flaw in the City’s interpretation of Section 5.4.4.F led to absurd results and rendered parts of the ordinance meaningless. Specifically, while the City’s interpretation of “main building area” would permit the homeowner to build accessory structures covering up to fifty percent of the “entire lot,” the immediately preceding sentence of the ordinance limited the principal structure and all accessory structures combined to only twenty-five percent of the lot area. Since the twenty-five percent of the lot is always less than fifty percent of the lot, the twenty-five-percent limitation in the first sentence would always control, and the City’s interpretation of the fifty-percent limitation would never apply. Accordingly, the City’s interpretation of the phrase “main building area” renders that very phrase a nullity.

As the court held that the City’s interpretation of Section 5.4.4.F of its UDO was manifestly unreasonable, it reversed the judgment of the chancery court with instructions to vacate the City Council’s order granting the building permit.

Wheelan v Coty of Gautier, 2022 WL 325207 (MS 2/3/2022)

This post was authored by Amy Lavine, Esq.

In a case challenging the issuance of a conditional use permit to allow a multi-family housing project, the Wyoming Supreme Court held that the board was required to transmit the entire record to the district court within 60 days after the filing of the petition for review. When the board failed to comply with this requirement, it was error to dismiss the appellants’ petition and the district court should have instead directed sanctions against the board. As the court explained: “The district court’s dismissal rewards the Board for failure to comply with the rules. It places all the responsibility and consequences for the Board’s failure on Appellants. Because the Board, not Appellants, had the responsibility to transmit the entire record to the district court, it was an abuse of discretion to dismiss Appellants’ petition for review.” Depiero v. Bd. of Cty. Comm’rs, 2022 WY 42 (3/24/22)

This post was authored by Amy Lavine, Esq.

A Tennessee case decided in April held that a site plan for a planned unit development was properly amended by the local planning commission. Because the changes were minor in character the court agreed that the proposed amendments did not need to be referred to the local legislature for consideration.

The case involved a planned unit development (“PUD”) district called Forest View Park that was established by the Metropolitan Government of Nashville and Davidson County in 1985. The final phase of the development involved a 7.84-acre tract that was initially planned to have 212 multi-family units, but the planning commission approved a modification in 2016 to reduce the number of multifamily units to 96 and add a club house and recreation center. The developer requested another modification in 2019 to further reduce the number of dwelling units to 56 and to remove the recreational facilities. The modification also sought to use townhomes in place of multi-story buildings. After a public hearing, the planning commission unanimously approved the application to revise the plan, subject to various conditions relating to signage, emergency vehicle access, water supply, and of sidewalks. The petitioner then commenced this litigation, arguing that the planning commission’s decision “authorized illegal buildings to be constructed within the Forest View Park PUD.”

On appeal, the court explained that applications to modify PUD districts  must be filed with and approved by the planning commission. The code included thirteen criteria relating to the modification process, and if all of the criteria were met then no further approval would be required. If a proposed modification did not meet any of the criteria, the modification would instead be considered an amendment to the previously approved PUD district and it would require an additional approval by the Metro Council.

Although the petitioner claimed that the modification in this case should have been referred back to the Metro Council, the court concluded that her complaints regarding the lack of recreational facilities and potential soil toxins did not implicate any of the modification criteria that would have required the Metro Council’s approval. As the court explained:

there was no change to the boundaries of the PUD or a change to the development concept; neither did the developer seek to increase the number of residential dwelling units. The developer sought to reduce the number of multi-family units from 96 to 56 and to change their form from multi-story apartment buildings to townhomes in order to meet demand. From our review of the record, material evidence exists to support a conclusion that these modifications were minor… and were of the type of change that did not require concurrence of the Metro Council. Only the approval of the Planning Commission was required for this revision to a portion of the PUD district.

With respect to the removal of recreational facilities from the PUD plans, the court disagreed with the petitioner’s contention that this was impermissible under the zoning code. Although the code included a requirement for recreational areas in some residential developments, the court explained that this would only apply if the PUD clustered single-and two-family lots. Since the plan at issue in this case did not have any clustering of single-and two-family lots, there was simply no basis for finding that recreational facilities were required. The petitioner’s remaining claims related to her concerns that toxins in the soil would be released into nearby areas during construction, but there was nothing in the zoning code that addressed this issue or provided a valid cause of action that the petitioner could rely on. Moreover, there was no evidence in the record substantiating the petitioner’s concerns about soil contaminants. The court therefore concluded “that this particular type of environmental concern is outside the Planning Commission’s designated responsibilities as set forth in the Metro Code.” Crawley v. Metro. Gov’t of Nashville & Davidson County, 2022 WL 1015544 (Tenn. App. 4/5/21).

This post was authored by Matthew Loescher, Esq.

In August 2018, Cobblestone purchased a residence with a pool located, which it intended to expand and operate an Airbnb business. As a result, shortly after purchasing the property, Cobblestone began renting it as a short-term rental (STR). In this case, Cobblestone Resort LLC, Wonae Mier, and Dustin Shiozaki appealed the district court’s order granting South Weber City’s motion to enjoin the ongoing use of a property owned by Cobblestone for short-term or vacation rentals without a valid business license.

On appeal, Cobblestone contended the district court erred in determining that its use of the Property as an STR prior to the adoption of the Ordinance was not a permitted, legal nonconforming use. The record reflected that Cobblestone’s property was located in an agricultural zone, with the permitted uses expressly enumerated in the South Weber Code. Although STR are not expressly listed as a permitted use in an agricultural zone, Cobblestone contends the use of the property as an STR fits into the statutory definition of “dwelling” and therefore qualified as a permitted use. In relying on the Merriam-Webster definition, however, the court determined the use of the property as an STR fell within the South Weber Code’s definition of “Boarding house and/or rooming house” and was therefore exempt from being classified as a “dwelling.” As such, Cobblestone’s use of the property as an STR was not a permitted, legal nonconforming use, and its operation as such constituted a violation of the Ordinance.

Cobblestone next argued that even if its use of the property as an STR did not constitute a legal nonconforming use, requiring it to have a business license, South Weber should be estopped from enforcing the Ordinance’s business license requirement under the doctrine of equitable estoppel. The court found that South Weber’s failure to enforce the Ordinance, including the business license requirement, prior to initiating the proceeding for injunctive relief was insufficient to invoke the exception allowing a claimant to assert estoppel against a governmental entity. Here, South Weber’s website stated, “As of August 2016, South Weber no longer requires a business license for a rental unit.” At that time, section 3-2-1(A) of the South Weber Code defined “Rental Units” as “a building or part of a building that is used or designated for use as a residence by one or more persons, and is available to be rented, loaned, or leased for a period of one month or more.” As an STR, the property did not fit within this statutory definition of “Rental Units.” Consequently, the court held South Weber’s website did not contain a “specific statement or written representation” that would warrant estopping South Weber from enforcing its business license requirement for STRs.

South Weber City v Cobblestone Resort, LLC, 511 P3d 1207 (UT App. 5/12/2022)

This post was authored by Matthew Loescher, Esq.

Webster Citizens for Appropriate Land Use, Inc commenced a hybrid article 78 proceeding and declaratory judgment action seeking to annul refusal by town zoning board of appeals (“ZBA”) to hear organization’s appeal challenging Town of Webster Planning Board’s determination that proposed development of a hydroponic farming operation constituted a permitted use in town’s large-lot single-family residential district pursuant to town zoning code. Citizens further sought to annul the Planning Board’s determination granting preliminary and final site plan approval. The Supreme Court granted the petition and remitted matter to the ZBA. The Town of Webster, Planning Board, and ZBA appealed.

On appeal, the court agreed with respondents that the court erred by granting the petition insofar as it sought to annul the “refusal” of the ZBA to hear petitioner’s appeal, and by remitting the matter to the ZBA to consider petitioner’s appeal. Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination by any administrative official of the Town” charged with the enforcement of the Town’s local zoning ordinance, the ZBA was without jurisdiction to hear an appeal.

The court next noted that, in the process of site plan review, the Town’s Department of Public Works (“DPW”) was required to review applications for development “and make recommendations to the Planning Board concerning the project,” which was to include a identification of any variances required for the project. As such, the court held that the determination that the project was a permitted use in the LL District was not appealable to the ZBA unless it was made by the DPW. In 2019, the DPW issued a written memorandum in which it required numerous revisions to the project. Accordingly, there was no determination from the DPW affording jurisdiction to the ZBA to hear petitioner’s appeal.

Webster Citizens for Appropriate Land Use, Inc v Town of Webster, 200 A.D.3d 167 (4 Dept. 12/23/2021)

This post was authored by Matthew Loescher, Esq.

In this case, the court reviewed whether the County Board of Appeals of Anne Arundel County erred when it denied a request by a developer, 808 Bestgate Realty, LLC, for transportation impact fee credits in connection with road improvements that it made to a county road as part of a redevelopment project. Pursuant to the Anne Arundel County Code, §17-11-207(c), when transportation improvements are constructed in connection with a development project that provide “transportation capacity over and above the adequate road facilities requirements” required by § 17-5-401 of the Code, transportation impact fee credits shall be allowed.

The County contended that, in order to receive transportation impact fee credits under § 17-11-207(c), the proposed development must first fail to satisfy the APF road test under § 17-5-401(a)(1) and (2) – this, requiring that the developer undertake mitigation approved by the County under subsection (3). The County further claimed that, if and only if a mitigation plan is required, and the mitigation improvements go “over and above” the necessary to satisfy the APF road requirements, the developer is eligible for transportation impact fee credits. As such, the County asserted that it has discretionary authority to enter into a transportation fee credit agreement. The record reflected that the County was unwilling to enter into such an agreement because it believed the road improvements did not provide a general benefit to the public. Conversely. Bestgate argued that there was nothing in the plain language of § 17-11-207(c) that conditioned the availability of transportation impact fee credits upon the development failing the adequate public facilities (“APF”) road requirements – thereby triggering mitigation improvements. The court found Bestgate’s plain language interpretation was supported by the County’s approval of transportation impact fee credits on similar projects that did not involve the construction of mitigation improvements to satisfy the APF road requirements. Bestgate further cllaimed that its interpretation did not place the developer in a decision-making role vis-à-vis County capital road improvement projects, noting that the County’s Engineer Administrator reviewed and approved the off-site improvements to Bestgate Road.

The court found that the “agreement” required under § 17-11-207(c) related to the process for awarding the credits, such as the timing and duration, and did not provide the County with discretionary authority to deny credits for non-site related transportation improvements that fell within the plain language of that subsection. Therefore, the fact that the Code required that the credits were to be memorialized in an agreement did not negate the mandatory language in subsection (c) that transportation impact fee credits for non-site related improvements “shall be given”. Accordingly, the court held that under the plain language of the Code, Bestgate was entitled to receive transportation impact fee credits, and the Board erred in its interpretation of the Code.

Anne Arundel County, MD v 808 Bestgate Realty, LLC, 2022 WL 2526948 (MD 7/7/2022)

This post was authored by Matthew Loescher, Esq.

 City of Brookfield appealed from an order reversing the City’s denial of Bridget Fassett’s application to divide her property into three residential lots. The City conditioned approval upon its requirement that Fassett dedicate part of her property for a new public through street and pay to construct it. The circuit court concluded that this exaction was an unconstitutional taking and ordered approval of Fassett’s proposed property division. The court further held that Fassett’s appeal was timely.

At the outset, the court noted that Fassett was not required to seek certiorari review of the City’s 2018 decision on her three conceptual plans. Here, the City failed to identify any statute, ordinance, or case that prevented an applicant who first sought a determination of a proposed conceptual land split from submitting a second revised application for approval with a CSM and other supporting documents, such as the subdivider agreement. Due to this, the court rejected the City’s unsupported contentions that Fassett was precluded from submitting the second application in 2019, or that that Fassett was precluded from appealing the denial of her subsequent application seeking approval of the shared driveway concept.

The court next determined that the City’s condition sought to mitigate, or improve, the impacts of the “status quo”— the existing dead-end streets. That condition was not created by Fassett’s subdivision proposal, however, but by the platting of the earlier subdivisions which the Property abutted. Here, the record reflected that when denying Fassett’s application seeking the shared-driveway option, the City repeatedly pointed to the municipal code’s goal of minimizing dead-end streets, and failed to identify any anticipated impacts caused by the proposed land split -much less impacts that would be roughly proportional to the costs of the exaction. The court therefore affirmed the circuit court order, and held elimination of pre-existing needs did not establish a constitutional basis to require that Fassett bear the costs of putting into place a public through street to benefit the public at large.

Fassett v City of Brookfield, 975 N.W. 2d 300 (WI App. 4/20/2022)