This post was authored by Matthew Loescher, Esq.

Invenergy, LLC, Invenergy Solar Project Development, LLC, and Yum Yum Solar, LLC petitioned the Fayette County Board of Zoning Appeals to approve their request to construct a solar farm in an area designated as “rural” under the Fayette County Growth Plan. The Zoning Board granted the Invenergy Defendants’ request, issued a special exception, and approved construction of the solar farm. Appellants Joseph Tapp, Willie Porter, William Hendry, and Gary Bullwinkel were residents of Fayette County, Tennessee that owned property near the proposed solar farm and opposed its construction. In 2021, Appellants filed a complaint for declaratory judgment in the Chancery Court for Fayette County against the Invenergy Defendants. The trial court granted the County’s motion and dismissed all of Appellants’ claims with prejudice. The trial court held that Section 13 did not violate Tennessee statutes, and that Fayette County had the authority to designate construction of solar farms in areas designated as “rural” under the Growth Plan.

On appeal, Appellants challenged the substance of Section 13 of the Fayette County Zoning Resolution, which authorized the Zoning Board to issue a special exception permit for solar farms. Specifically, Appellants’ issue was with Section 13.2.1, which provides that solar farms “shall be located only within an area designated Rural by the Fayette County Growth Plan ….” The court noted, however, that Appellants’ brief failed to comport with the Tennessee Rules of Appellate Procedure by failing to include a valid argument. Here, Appellants’ “argument” failed to show how Section 13, or how the resolution allowing for the construction of solar farms in areas designated as “rural,” directly contradicted and was ran afoul of Tennessee law. The court held that Appellants’ failure to make any argument concerning exactly how and why the terms of Section 13 violated Tennessee law precluded its review and resulted in waiver of the issue. Accordingly, the appeal was dismissed.

Tapp v Fayette County, TN, 2022 WL 2658872 (IN App. 3/29/2022)

This post was authored by Sebastian Perez, J.D.

As online home rental services continue to be an issue for legislatures throughout the country, a Mississippi chancery court invalidated the Lake Serene Property Owners Association’s (“LSPOA”) amended bylaws prohibition on the rental of property for terms less than 180 days and identified such use as residential which complied with the restrictive covenants that ran with the land. This appeal of first impression in Mississippi followed.

The first issue the Court addressed was whether the trial court erred by finding that the Appellee’s listing of the property constituted a commercial use. The covenants governing the LSPOA restricted the use of the property to “residential purposes only.” However, the term “residential purpose” is not defined in the covenants. With no binding precedent, sister-state cases guided the analyses which found a residential purpose when the property was used as a place of abode no matter how short the rental period and any commercial activity and exchange of funds occurred online only. LSPOA contended that the Court should side with the Supreme Courts of Pennsylvania and New Hampshire which found that short-term rentals were considered “transient use” of property and not residential in nature but failed to address that the subject covenants already allowed the rental of property. The Court was not convinced and determined that the salient point was whether the property itself was being used in a manner that a place of abode would be used, not how long the property was being used as a place of abode. The Court affirmed the chancery court’s determination that the Appellee’s use of the property was residential and did not violate the restrictive covenants. 

The second issue the Court addressed was whether the trial court erred by finding the Appellee’s use of the property not classified as a nonconforming use and not in violation of the covenants. The Court looked to its case law on point which disfavored restrictive covenants and where ambiguity existed in the covenant, construction was usually in favor of the person being restricted. LSPOA’s covenants allowed tenants to use the property and common spaces in the same manner as the owner and made no mention of a specific maximum or minimum amount of time a homeowner could rent their property. The Court concluded that the covenants read in their entirety do not prohibit short-term rentals. 

The last issue the Court addressed was whether the trial court erred by finding that the adoption of the property-use rules in the bylaws of the LSPOA was invalid because they constituted an unauthorized amendment to the covenants governing the LSPOA. The Court was guided by controlling precedent where it previously held that the right to amend restrictive covenants is reserved to a board’s members and not held by the board itself. The LSPOA included similar provisions on such amendments. Emphasis was given to the overarching principle that a board of directors of a homeowner’s association should not be able to exercise its rule-making authority to bypass rights reserved to landowners evidenced by covenants. Any rule that conflicted with the rights vested to the landowners through the covenants required an amendment to the covenants, absent language in the covenants to the contrary. The Court determined that the trial court was correct in finding that the amendment to the bylaws by the LSPOA board of directors was in effect an invalid amendment to the LSPOA covenants. 

In conclusion, the Court held that the short-term rental of the subject property did not violate any covenants because it constituted a residential use; the lower court was correct in finding that the covenants did not specify that short-term rentals were prohibited and that the trial court was correct in finding that the adoption of bylaws restricting the rental of the property was an invalid amendment to the covenants. The chancery court’s decision was affirmed.

Lake Serene Property Owners Association, Inc v Esplin, 2022 WL 713417 (MS 3/10/2022)

This post was authored by Matthew Loescher, Esq.  

This appeal arose from the rezoning of real property within the Galloway Village neighborhood sought by the owner Respondent Elevation Enterprises, LLC and granted by Respondent City of Springfield, Missouri, through General Ordinance No. 6614. The City Council called a special election to place Ordinance 6614 on the August 3, 2021 ballot to be considered by the City’s electors pursuant to the power of referendum. On January 2, 2021, before the election could occur, Elevation filed suit against the City, the City Clerk, the Mayor of the City, and members of the City Council seeking to permanently enjoin the election. Appellants sought and were permitted to intervene in the lawsuit and opposed the relief sought by Elevation.

The court first determined that, contrary to Respondents’ arguments, the alleged conflict related to whether the electors’ rejection of Ordinance 6614 and the resulting deemed repeal of Ordinance 6614 would violate a superseding law or provision of the City Charter: Chapter 89 and Section 11.17. The court further noted that since a substantive dispute might arise only if the petition was adopted, it should not give an advisory opinion on whether rejection by the electors and resulting deemed repeal of Ordinance 6614 would violate a superseding law or Section 11.17 of the City Charter. Instead, the court found, it would wait and see if the electors rejected Ordinance 6614 before considering substantive challenges to the electors’ rejection of the ordinance and to the resulting deemed repeal of the ordinance. Accordingly, until Ordinance 6614 is rejected at a referendum election, the court held Elevation’s complaint represents only a legislative policy dispute rather than a justiciable controversy.

 Elevation Enterprises, LLC v City of Springfield, 646 SW 3d 716 (MO App. 6/8/2022)

This post was authored by Amy Lavine, Esq.

The Rhode Island Supreme Court held in March that whether a town removed trees from a right-of-way in response to complaints from neighborhood residents was a matter properly characterized as a discretionary or executive function. The court therefore dimissed the plaintiff’s request for a writ of mandamus to compel the town to remove the trees, since mandamus is only appropriate to compel ministerial actions.

The disputed trees had been planted in 2010 by the owners of a neighboring property, without any permission or approval from the town and in violation of permits that had been issued for plantings on their side of the right of way. The trees had since become the subject of numerous complaints, but while several town officials had looked into the matter, they had not found any solution that was satisfactory to the neighbors who had planted the trees and all of the other neighbors who were unhappy with the trees.

The plaintiff was pro se and while she failed to state any specific cause of action that might entitle her to relief, the court nevertheless discerned that her complaint clearly sought an order in the nature of mandamus to compel the town to enforce its laws “by removing * * * all the trees and plants which were illegally planted within the Town’s street line.” The court found that such relief was unavailble, however, because the town’s decisions about right-of-way plantings were discretionary in nature and it had no ministerial duty requiring it to remove the trees. While the court found it “unfortunate” that the town still hadn’t found a solution for the disputed trees, it was ultimately up to the town chose how to respond to this problem and mandamus therefore wasn’t appropriate relief.

Nerney v. Town of Smithfield, 269 A.3d 753 (RI 3/4/22).

This post was authored by Amy Lavine, Esq.

A Hawaii court considered whether overnight camps were allowable by special permit in agricultural districts in the 2022 case Ho’omoana Foundation v. Land Use Commission, 2022 WL 1623919 (Haw. App. 5/23/22).

The Land Use Commission had determined that overnight camps were clearly prohibited under the special permit statute, but the court held on appeal that the decision was erroneous to the extent that it conflicted with the Hawaii Supreme Court’s 1990 case Maha’ulepu v. Land Use Commission.

As the court explained, the Land Use Commission was correct that overnight camps were expressly excluded from the permitted use category of “public and private open area type of recreation uses.” A strict construction of this exclusion would have been consistent with the rule that specific statutes control over general statutes, and it also would have avoided rendering the exclusion meaningless and supported the statutory purposes of preserving agricultural land and promoting agricultural self-sufficiency. In Maha’ulepu v. Land Use Commissionn, however, the Hawaii Supreme Court had considered the same special permit statute and held that golf courses could be permitted in some cases even though they were also excluded from the permitted uses on agricultural lands. As the court explained in that case, this was because the statute “vests in the planning commissions the authority to issue special permits for uses that, while not otherwise permitted within agricultural districts, are nonetheless ‘unusual and reasonable’ uses that promote the effectiveness and objectives of [the statute].” The statute was later amended to specifically prohibit golf courses in agricultural districts, rather than merely excluding them from the permitted use classification, but this only abrogated Maha’ulepu as applied to golf courses and therefore the decision remained controlling for other excluded uses, such as overnight camps.

This post was authored by Amy Lavine, Esq.

The Florida statute that requires development decisions to be consistent with the local comprehensive plan and which authorizes citizens to bring consistency challenges was amended in 2019 to add a provision that grants attorneys fees and costs to the prevailing party in such cases. This amendment was challenged in a case decided last year, 1000 Friends of Fla., Inc. v. Eagle. The appellants in the case claimed that the amendment undermined the purposes of the statute “by chilling, frustrating, and punishing the ability of locally affected citizens to challenge local government decisions that are not consistent with the local Comprehensive Plan,” and they sought a declaration that the amendment was invalid and unconstitutional. The court dismissed their challenge, however, because the named defendant, the Executive Director of the Department of Economic Opportunity (the “DEO”), was not a proper party to the case.

The court explained that it considers three factors in determining whether a public official is properly named as a defendant in a declaratory judgment action. First, public officials will be found to be proper defendants if they are charged with a enforcing the statute, but if they do not have any enforcement duties then the court must consider two additional factors: “(1) whether the action involves a broad constitutional duty of the state implicating specific responsibilities of the state official; and (2) whether the state official has an actual, cognizable interest in the challenged action.”

The appellants claimed that the DEO was a proper defendant because the DEO had a duty to implement the statutory provisions for the adoption and enforcement of local government comprehensive plans, and the DEO “was charged with enforcing the statute,” at least insofar as “the statute” was understood broadly to encompass all of the state’s land development regulations as set forth in Chapter 163, Title II of the Florida Statutes, and not just the consistency statute. The court disagreed though, because “the fact that DEO is the state land planning agency and has duties associated with other statutes within chapter 163 is immaterial to whether the Director is charged with enforcing the challenged statute.” And with respect to the challenged statute, the court concluded that the DEO was not charged with enforcing any of the regulations related to comprehensive plan consistency.

Next, because the case did not involve “a broad constitutional duty of the state implicating specific responsibilities of the state official,” the court continued to the third factor, “whether the state official has an actual, cognizable interest in the challenged action.” As the court explained, this factor relates to whether the named defendant has an actual interest in the outcome of the litigation, which is necessary for there to be a justiciable controversy within the court’s jurisdiction. In this case, the court concluded that the DEO did not have  any cognizable interest in the outcome of the appellants’ case because only “aggrieved parties” were authorized to bring consistency challenges under the comprehensive plan statute and the DEO would not be “aggrieved” or otherwise have standing in such cases. The appellants argued that the DEO had a cognizable interest due to the Department’s “central, pervasive and exclusive role in the comprehensive planning process that ultimately relies upon citizen enforcement,” but the court disagreed because this did not establish that the DEO had any adverse interest. To the contrary, the court pointed out that if the DEO was as reliant on citizen enforcement as the appellants claimed, then the DEO would certainly not have an adverse interest or be a proper party to be named as the defendant, since the DEO would not  “have a sufficient stake in defending a statute that chills that enforcement.”

Because the appellants failed to name a proper defendant, the order granting the motion to dismiss was affirmed. 1000 Friends of Fla., Inc. v. Eagle, 330 So. 3d 986 (Fla App 11/3/21).

This post was authored by Amy Lavine, Esq.

The New York Court of Appeals held in December that several corporations qualified as “outdoor advertising companies” because they made advertising space on their buildings “available to others,” even though in this case the advertiser was also an owner of each of the corporations. The court agreed with the New York City Environmental Control Board and the appellate court, which had both ruled against that the relevant issue was whether the corporations provided advertising to a separate legal entity, not whether they had a shared owner.

As the court explained: “the most natural reading of ‘others’ is distinct legal entities. Petitioner corporations, although admittedly owned either by Mr. Ciafone or by both Mr. Ciafone and his spouse, are indisputably distinct legal entities…. Thus, by advertising a distinct legal entity on their buildings, petitioner corporations made space available to others and are [outdoor advertising companies] under the Code.” The court also declined to look past the corporations’ formal ownership structures in order to take into account their shared ownership interest, since the “essential purpose behind corporations and other fictive entities is to give them a separate legal existence from the natural persons who own them and from other legal entities.” Moreover, there was simply “no statutory or equitable basis to disregard the corporate form chosen by Mr. Ciafone or other shareholders in these corporations.”

The court also rejected the argument that its decision would penalize the petitioner “for forming corporate entities to own the buildings for tax and liability purposes.” The court pointed out that various laws and regulations apply differently to corporations and natural persons, and “those are not ‘penalties’ for creating a corporate legal entity, but consequences of choosing that form of ownership.” One such consequence was that the fines for signage violations were higher for corporate “outdoor advertising companies” than for natural persons who provided advertising space to others, and the court found nothing amiss in this regulatory distinction. This was especially so in light of the regulations’ legislative history, which showed that “a primary concern of the legislature in passing and amending the Code was the key role that companies, ‘rather than individual property owners,’ play in creating the visual blight these signs represent.”

Matter of Franklin St. Realty Corp. v NYC Envtl. Control Bd., 2019 NY Slip Op 08976 (NY 12/17/19)

This post was authored by Amy Lavine, Esq.

A New York appellate court ruled in December 2019 that a property owner was improperly convicted under a village zoning ordinance for constructing a tree house without a permit. Although the village code prohibited the construction of a “building” without a building permit, the court found that the accusatory instruments failed to allege facts establishing that the tree house constituted a “building,” which was defined under the village code as “[a] structure having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals or chattels.” The factual portions of the accusatory instruments also failed to sufficiently allege that the defendant had constructed the treehouse, since the only notation made was “WITHOUT A PERMIT — TREEHOUSE.” Accordingly, the court determined that the accusatory instruments failed to allege each element of the offense and the judgments of conviction had to be dismissed. 

People v Lepper, 2019 NY Slip Op 52117(U) (N.Y. App. Term, 2d Dept. 12/19/19)

This post was authored by Matthew Loescher, Esq.

This is an appeal arose from a Pickaway County Court of Common Pleas’ post-remand judgment entry granting Appellee, Village of New Holland’s, motion for a permanent injunction seeking to enjoin Appellant, Michael Murphy, from operating an automotive repair business from his residence in violation of the village’s zoning ordinance. In 2017, Appellant, Village of New Holland, filed a complaint for injunction against Appellee, Michael Murphy. Appellee’s wife was later joined as a party to the lawsuit. The complaint alleged Appellant was entitled to a permanent injunction pursuant to R.C. 713.13 barring Appellees from operating a business on their property, which was located in a residential district.

On appeal, Murphy first argued the trial court committed prejudicial error when it denied him a de novo hearing upon remand by depriving him of the right to present additional evidence and arguments. The record here indicates that this matter originated with the filing of a complaint for an injunction based upon a zoning violation. The trial court’s original judgment was issued following a jury trial: after both parties had the full opportunity to present all of their evidence and make all of their legal arguments. Since that court had already determined that the CUP was invalid because a resolution had never been passed, and that the Village’s zoning ordinance required the passage of a resolution for the issuance of a CUP, the trial court would have violated the law of the case by deciding otherwise, as urged by Murphy. Accordingly, and upon de novo review, the court held that the trial court correctly applied the law-of-the-case doctrine.

As to Murphy’s claim of equitable estoppel and laches, the record indicated that the trial court originally granted judgment in favor of Murphy without expressly reaching the merits of whether the equitable defenses of equitable estoppel and laches applied. Instead, the trial court found that the conditional use permit was valid and that Murphy was entitled to carry on with his home business, without resorting to a balancing of the equities. As such, the court could not find that the trial court committed prejudicial error when it found the equitable defenses of estoppel and laches did not apply in this case.

Lastly, despite the fact that Murphy was given a document purporting to be a valid CUP, per the express language contained in the ordinance, because the operation of an automotive repair garage was not an essential service and was not a permitted conditional use in a residential district, the court held that the board not only lacked authority to grant the CUP, but the permit purportedly issued to Murphy was null and void – as it conflicted with the provisions of the ordinance. Thus, even if Murphy’s defense of equitable estoppel were viable, it would have been found to have failed on the merits.

Village of New Holland v Murphy, 176 NE 3d 309 (OH App. 7/2/2021)

This post was authored by Matthew Loescher, Esq.

In 2000, the Hawai‘i County Planning Commission issued Special Permit No. 1047 to Nani Kona Coffee LLC granting construction of a “coffee visitor center” and related improvements on a parcel of approximately 7.33 acres of land “located on the southeast corner of the Hawaii Belt Road and Hualalai Road intersection” within the state and county agricultural land use districts. One month after approval of the grading and stockpiling permits, Appellee Planning Director sent Bolton a “Warning Letter” concerning activity on the two parcels. According to the letter, the Planning Department had received a complaint that Bolton was operating a quarry on the parcels and using the parcels as an equipment base yard without an applicable special permit. In 2016, one week before the LPC’s scheduled public meeting on Special Permit Application No. SPP-16-188, Appellant Hualalai submitted a “Petition for Standing in a Contested Case Hearing” stating that it represented property owners who owned residential properties in the near vicinity. Hualalai filed a direct appeal to this court, challenging the LPC’s failure to issue a decision on its petition to intervene and objecting to the Planning Director’s withdrawal decision and the LPC’s decision to treat the proceeding as a closed matter.

Appellees first argued that Hualalai’s appeal was moot because Special Permit Application No. SPP-16-188 had been withdrawn. Hualalai’s appeal was found to still be viable because the appeal possibly afforded it an effective remedy: remand to the LPC for a hearing to determine whether Hualalai’s petition to intervene should be granted or denied. Accordingly, Appellees’ withdrawal of Special Permit Application No. SPP-16-188 did not render moot Hualalai’s appeal to this court.           

The court next found that the proceedings following Bolton’s submission of Special Permit Application No. SPP-16-188 constituted a contested case within the meaning of HRS § 91-14(a) and PASH because a hearing was required by LPC Rules 4 and 6 and HRS § 91-9 to determine Bolton’s and Hualalai’s respective legal rights and duties. Here, the record reflected that the Planning Director acknowledged that his actions constituted a “final determination” on Special Permit Application No. SPP-16-188. Furthermore, even if Bolton, and not the Planning Director, initiated the withdrawal process, the court noted that LPC still would have elected to let the proceeding for Special Permit Application No. SPP-16-188 “lie as a closed matter,” which is an action that constitutes a final decision. The record also reflected that Hualalai followed LPC Rule 4-6(a) and participated in the proceeding by submitting a petition to intervene and paying the requisite filing fee. Accordingly, the LPC’s failure to grant Hualalai’s petition to intervene did not preclude the court from finding that Hualalai participated and followed LPC Rules in the contested case proceeding for Special Permit Application No. SPP-16-188, as required by PASH for judicial review pursuant to HRS § 91-14(a)

The court also noted that once a person files a petition to intervene, LPC Rule 4-6(b) requires that the LPC hold a hearing “on the first meeting on the matter” to determine whether to grant or deny that petition before it may take any further action in the contested case. Here, while the original hearing on Special Permit Application No. SPP-16-188 was continued at Bolton’s request, Special Permit Application No. SPP-16-188 remained a live agenda item on which the LPC received oral testimony at the LPC’s May 19, 2016 meeting. The court found that by failing to follow LPC Rule 4-6, Appellees might have prejudiced Hualalai’s substantial rights that it would have had as a party to the proceeding. In light of the LPC’s use of unlawful procedure, the court held that remand was appropriate under HRS § 91-14(g)(3). Additionally, the court held that the Planning Director abused his discretion when he withdrew Bolton’s Special Permit Application No. SPP-16-188 after extensive nonpublic communication and fact-finding with only one party, Bolton, in the contested case. The case was therefore remanded to the LPC for further proceedings consistent with this opinion.

The Community Associations of Hualalai, Inc.  Leeward Planning Commission, 2021 WL 5711801 (HI 12/2/2021)