This post was authored by Matthew Loescher, Esq.

Plaintiffs Gary and Matthew Percy initiated this action under 42 U.S.C. § 1983 claiming that Defendants engaged in First Amendment retaliation, and vindictive enforcement in violation of the Fourteenth Amendment’s Equal Protection Clause in response to Plaintiffs’ objections to the Charter Township of Canton’s enforcement of its “tree ordinance.” The Charter Township of Canton filed a Counter-Complaint against 5601, Inc., a real estate business owned by Plaintiffs, which owned two parcels of property in the Township. The Township’s sixteen-count Counter-Complaint asserted violations of zoning, building, and fire prevention and protection ordinances or codes based on the lack of certificates of occupancy and the failure to post certificates of occupancy for buildings on the properties.

The Plaintiffs first presented evidence to the court suggesting that Thurston and Hamilton were decisionmakers as they were granted authority to interpret the ordinances they enforced and to determine whether those ordinances had been violated/ Conversely, the Township offered no evidence suggesting that their decisions were overseen by the department heads to whom they reported. The court noted that even if there was a question of fact as to whether Thurston and Hamilton were final decisionmakers, the evidence reflected that the officials who undisputedly held such authority were informed of and ratified the actions these code enforcement officers took. The Township conceded that actions by Faas, Goulet, and Creamer “could fairly be said to represent official policy of Canton Township.” Bob Belaire, then the head of the Township’s Public Works Department also was a likely decisionmaker. Creamer, the Township’s Chief Building Official, was involved in discussions with other Township officials and code enforcement officers regarding the Percys and the subject properties beginning with the initial tree dispute in April 2018. The record further reflected that Hamilton consulted with Creamer regarding the enforcement actions and violations noted, and Creamer signed the Counter-Complaint in this case. Moreover, the record indicated that Creamer’s statement to his ex-wife that those activities were the “byproduct of the lawsuit about the trees” and if you fight the Township “it gets ugly” could suggest to a reasonable jury that he knew the enforcement actions were retaliatory and, at the very least, failed to correct his subordinates’ unconstitutional behavior. Belaire also was copied on many of the communications involving the subject building enforcement activities. In light of the above, the court found a genuine issue of material fact as to whether the alleged retaliatory actions were taken pursuant to a municipal policy or custom.

The court next found that Gary Percy undisputedly challenged the tree fine when he contacted Williams. The record revealed that shortly thereafter Thurston sent follow-up emails to the State and County agencies – which the court noted could be viewed as encouragements for those agencies to take action – Parcel C. Hamilton began her enforcement activities shortly after the tree dispute developed. Additionally, new Zoning Ordinance and Fire Code violations were identified only after the Percys began speaking to the media and filed a counter-complaint challenging the constitutionality of the tree ordinance. Further supporting Plaintiffs’ position was the fact that Hamilton began asking about Parcels A and B within two weeks of Thurston’s email to Township officials, including Belaire, indicating that the Township had “other potential violations if the property owner is not cooperative” and within hours of Belaire’s inquiry as to whether Thurston had obtained the Percys’ cooperation regarding the tree dispute. Moreover, the Township had not conducted a “routine” inspection of the subject properties in about nineteen years. Accordingly, the court found genuine issues of material fact precluding summary judgment in favor of either side with respect to Plaintiffs’ claims against Defendants.

Lastly, the court found a genuine issue of material fact precluding summary judgment in favor of the Township with respect to its counterclaims alleging violations of the Zoning Ordinance and Building Code due to a failure to obtain CO’s. While the court noted there were no genuine issues of material fact with respect to whether COs were posted in the properties, as required under the Fire Ordinance, it held the Township’s ability to prevail on its counterclaims would be reserved until the trier of fact resolves Plaintiffs’ claims.

Percy v Charter Township of Canton, 2022 WL 738667 (3/11/2022)

This post was authored by Matthew Loescher, Esq.

Beginning in 2018, Puce sought to redevelop the property for commercial use, in three phases. For the first phase, Puce planned to operate an automobile dealership and a bakery in the existing structure. In the second phase, Puce planned to build a new building for an automobile repair shop. In the third and final phase, he planned to improve part of the property to create an open storage lot. In May 2018, Puce submitted an application to the City of Burnsville seeking approval of a preliminary and final plat of the property, a conditional use permit (CUP), and variances related to signage and land grading. In mid-January 2019, the City’s planning commission reviewed Puce’s application and recommended approval of the plat, approval of a CUP, and denial of the variances, subject to 17 conditions, including the payment of a park-dedication fee in the amount of $37,804. Puce objected to the City’s imposition of a park-dedication fee as well as the amount of the fee. He asked the City to waive the fee on the ground that his planned automobile dealership and bakery would not result in a need for more parkland or park services, but the city council denied this request. Following a bench trial, the district court granted judgment for the City of Burnsville, affirming imposition of fee.

On appeal, Puce contended that that the City’s imposition of a park-dedication fee violated subdivision 2b(e) of section 462.358 as the City did not make “any individualized assessment of what, if any, new park need was created by granting” his development application. Puce further claimed that the City did not have any evidence that its approval of his development application would result in an increase in expenditures on parks. In response, the City argued that any development would inevitably cause an “influx” of people and, “logically, an influx to the area will increase the use of the nearby public facilities, parks, and trails.” Here, the record reflected that the City imposed a park-dedication fee simply by applying its five-percent formula, but failed to cite any other facts in the record to indicate that the City’s approval of Puce’s application actually would cause an identifiable increase in park usage and, thereby, create a need for new or improved parkland. Thus, the court held that the City’s decision to impose a park-dedication fee did not have a proper factual basis, and the City therefore violated subdivision 2b(e) of section 462.358 when it imposed a park-dedication fee on Puce.

Similarly, the court determined there was not a rough proportionality between the park’s dedication fee and any need for the acquisition and development or improvement of parkland as a result of the City’s approval of Puce’s development application. As such, the court held that the City violated subdivision 2c(a) of section 462.358 when it imposed a park-dedication fee on Puce’s development application, and the City’s decision to impose an $11,700 park-dedication fee on Puce was unreasonable, arbitrary, and capricious.

Puce v City of Burnsville, 971 N.W. 2d 285 (2/7/2022)

This post was authored by Matthew Loescher, Esq.

Appellant Henry Tran, owner of My Vermont Liquor store located in the West Athens-Westmont, applied to the Los Angeles County Department of Regional Planning for a renewal of the store’s conditional use permit (“CUP”) to sell beer, wine, and spirits for off-site consumption. The County Department of Regional Planning reviewed the application and recommended certain limitations on the store’s alcohol sales, and the Regional Planning Commission approved the conditional use permit with a modification extending the hours of alcohol sales beyond the limitations recommended by the Department. The Los Angeles County Board of Supervisors subsequently reviewed the decision and imposed new limits on alcohol sales hours and certain alcohol container sizes after a public hearing. This appeal arose from the trial court’s denial of a petition for a writ of mandate by the store owner, seeking to overturn the Board of Supervisors’ decision.

The County’s position was that the Board rendered its decision on August 1, 2017, when it closed the hearing, passed the motion of “intent to approve” the CUP with the modified conditions, and instructed county counsel “to prepare the necessary findings and conditions for approval of the CUP with changes.” Conversely, Tran argued that the Board rendered its decision on March 20, 2018, when it adopted the findings of county counsel and approved the CUP with the modified conditions included. The court found that while section 22.240.060, subdivision E.4 did not specify whether the “decision” rendered must be final, finality was required by construing subdivision E.4 in the context of the surrounding statutory framework, rather than in isolation. Here, the CUPs 10-year permit period and 90-day expiration window began to run on the “date of decision” under subdivision F. As such, the court determined that if the relevant “decision” was the resolution of intent to approve, the effective date would be August 1, 2017, and the 90-day expiration period would have passed before the Board’s final approval of the CUP on March 20, 2018. Accordingly, the court rejected this position, finding that it led to an absurd result.

The court next found that under the ordinary and commonsense meaning of “decision,” in the context of the statutory framework and the adjudicatory nature of the review process, the Board’s “decision” for purposes of section 22.240.060, subdivision E.4 occurred when it adopted the findings and approved the modified CUP with conditions on March 20, 2018. Specifically, as the Board’s decision was rendered after 30 days of the close of the August 1, 2017 hearing, it acted outside the mandatory time limits of section 22.240.060. In light of this, the court held that the Commission’s previous decision would be affirmed, and the judgment of the trial court was reversed and remanded.

Tran v County of Los Angeles, 2022  WL 189918 (CA App. 1/21/2022)

This post was authored by Matthew Loescher, Esq.

This case arises from Rockdale County’s denial of an application for a permit to build a QuikTrip on property owned by William Corey and U.S. Enterprises, Inc., on the ground that the proposed facility was a “truck stop,” which was a prohibited use under the County’s Unified Development Ordinance (“UDO”). After the County’s Board of Adjustment affirmed the denial of the permit, the Owners filed a petition in the Rockdale County Superior Court seeking certiorari under OCGA § 5-4-1 et seq. The Superior Court sustained the petition for certiorari, rejecting the County’s argument that the Owners’ lawsuit was barred by res judicata and reversing the Board’s decision on the ground that the UDO’s applicable definition of a “truck stop” was unconstitutionally vague and therefore violated due process under the Georgia Constitution. After the court granted the County’s application for a discretionary appeal, the County appealed, and the Owners cross-appealed.

The record reflected that in August 1999, more than seven years before the UDO, which contains the “truck stop” definition at issue in this case was adopted, the Owners filed a petition for mandamus and declaratory relief against the County and, in their official capacities, the members of the Board of Commissioners and the Director of the Department of Public Services and Engineering. While the Owners’ 1999 lawsuit and this case both related to their seeking a permit to construct a facility on their same property, the two lawsuits were based on different sets of operative facts and different alleged wrongs. Specifically, in the 1999 lawsuit, the Owners claimed that their application for a permit to build a “travel plaza” should be reviewed under a different zoning ordinance that was in effect many years before the UDO was enacted, that a travel plaza was permitted under the former ordinance, that an amendment to the former ordinance was invalid, and that parts of the former ordinance were unconstitutional. In this case, the Owners claimed that their application for a permit to build a facility on the property was improperly denied under the express prohibition against “truck stops” in the UDO – which was adopted more than seven years after the 1999 lawsuit, and that the “truck stop” definition in the UDO was unconstitutionally vague.

The County further argued that the Superior Court erred by ruling on the merits of the vagueness challenge because the Owners did not properly raise it, and that even if the challenge was properly raised, the UDO’s definition of a “truck stop” was not unconstitutionally vague in violation of the due process provision of the Georgia Constitution. In its order ruling that the “truck stop” definition was unconstitutionally vague, the Superior Court concluded that the terms “maintenance” and “servicing” were ambiguous. The court found that the Superior Court erred in its reliance on hypotheticals, as the Owners had not identified any aspect of the proposed use of their own property to which the definition of “truck stop,” as properly interpreted, could be intelligibly applied and would instead require pure guesswork at its meaning. Since the Owners failed to establish that the “truck stop” definition was unconstitutionally vague as applied to their proposed QuikTrip, the superior court erred by concluding that the definition was vague on its face. Accordingly, that part of the court’s judgment was reversed.

Rockdale County v Enterprises, Inc. 865 SE 2d 135 (GA 11/2/2021)

This post was authored by Matthew Loescher, Esq.

Appellees sought to develop several parcels of land located in Harford County into a multiuse business park. As mandated by the county’s development process, appellees submitted a Forest Conservation Plan (“FCP”), which the county approved. Appellants, Chesapeake Bay Foundation and several local residents, sought judicial review of the FCP in the Circuit Court for Harford County. Appellees moved to dismiss, arguing that approval of an FCP is not a final decision of the county’s zoning department. The circuit court agreed and dismissed the complaint.

On appeal, the court held that there was not a separate right to seek judicial review of an approved FCP any more than there is a separate right to seek a separate review of any other component of a zoning site plan. Upon review of the Harford County zoning approval process, the court found that the developers accurately referred to the FCP as part of a negotiation between the relevant agencies and the Department. The court reasoned that once the FCP is approved it then becomes an essential term of the contract – a preliminary plan or a site plan -between the developers and the county. Here, the developer had to obtain both prior beginning construction.

After reviewing Harford County’s zoning policies and the comprehensive process that the county has established to approve large-scale commercial development such as the Abingdon Business Park, the court found that preliminary plan approval, or site plan approval, were “final” actions of the Department which only then trigger judicial review of any of the components of the approved plans under County Charter § 709 and County Code § 268-28. The court noted that the mere approval of the FCP during the process would leave “more for the agency to do: such as assessing the impact that the development will have on local traffic, storm water management, surveys and the creation of plats, public hearings, etc.” The final stage in the process – the developer commencing construction – could only occur after the site plan was ultimately approved. As such, the court held that to allow judicial review of an FCP in the middle of the zoning approval process would constitute a piecemeal consideration of administrative decisions. Accordingly, the circuit court’s dismissal of the complaint was affirmed.

Chesapeake Bay Foundation, Inc. v Creg Westport I, LLC, 2021 WL 4077007 (9/8/2021)

This post was authored by Matthew Loescher, Esq.

Havens’ neighbors, Jim and Beverly Moore, owned the land that abutted Havens’ property. Since 1990, Jim Moore has operated an automobile towing and storage business on his land. The record reflects that Jim and Beverly initially allowed Havens’ poultry to graze on their land, but rescinded permission after a goose attacked Beverly. In 2018, Havens filed a complaint with the Fayette County Health Department alleging that Moore was operating an “illegal dump and junkyard with decaying autos & debris harboring vermin.” Rick Garrison, the Director of Environmental Health for the Fayette County Health District, found no health code violations upon the Moores’ property, and opined that the vermin were likely attracted to the noise and odor of Havens’ poultry. Following this, Havens filed this action against Moore, Skaggs, Fyffe, Drake, and Garrison in their individual capacities. The trial court granted summary judgment in favor of the defendants on the basis of res judicata, collateral estoppel, and political subdivision immunity and directed the defendants to prepare a final judgment entry.

On appeal, the court first noted that the record revealed that Havens harbored a grievance against his neighbors, the Moores, and elected to pursue legal action based upon vague and conclusory allegations concerning their property. The various officials and employees, Skaggs, Fyffe, Drake, and Garrison were entitled to immunity under R.C. Chapter 2744 as they were performing governmental actions and none of the exceptions to immunity applied. While the Moores were not entitled to governmental immunity, they were not found liable under any cognizable claim raised by Havens. Accordingly, the court held the trial court did not err in granting summary judgment in favor of the defendants.

Vernon Lee Havens II v Moore, 2021 WL 4519068 (OH App. 10/4/2021)

This post was authored by Amy Lavine, Esq.

An appellate court in New York dismissed an environmental review lawsuit on standing grounds in a case decided in January. The case involved the potential acquisition of a nature preserve by the Town of Poestenkill, an action that the town found would have “no adverse environmental impact.”

Neighboring property owners contended that the town failed to consider the traffic impacts from a parking lot and hiking trail, but the court found that they failed to allege any unique or distinct injuries sufficient to establish standing. The court also noted that their asserted injuries were essentially speculative because they didn’t arise from the town’s potential property acquisition but rather from conditions that had existed on the preserve for decades.

Although the standing issue was dispositive, the court also granted the town’s counterclaim for declaratory judgment because the environmental assessment form showed that the relevant environmental concerns were reviewed and considered, and the town had also demonstrated its intent to maintain the property as a nature preserve through its consideration of advisory committee findings and the preparation of a draft local law and management plan for the preserve. Matter of Hohman v Town of Poestenkill, 2020 NY Slip Op 00013 (N.Y. App. Div. 3d Dept. 1/2/202

This post was authored by Amy Lavine, Esq.

A Louisiana appellate court case decided in 2022 considered the validity of a cooperative agreement in which South Central Planning and Development Commission, Inc. (SCPDC) agreed to act as the building code enforcement officer for St. Charles Parish. The lawsuit was brought by IECI, a non-party to the cooperative agreement that provided similar code enforcement services for contractors and homeowners.

IECI claimed that the cooperative agreement was null and void because there was no legislative authority for the arrangement and further, that the code enforcement actions that had been performed by SCPDC were also null and void. The court agreed with the parish and SCPDC, however, that IECI lacked standing because it failed to establish that it had any “real and actual interest” in the validity of the cooperative agreement. As the court explained, IECI had conceded that it had no interest in the cooperative agreement as either a party or as a third-party beneficiary, and regardless of its purported interest in assuring that code enforcment actions were undertaken with appropriate legal authority, IECI failed to allege that it suffered any actual injury as a result of the alleged invalidity of the cooperative agreement. And while IECI also contended that the cooperative agreement “displaced competition” from other third-party providers like itself, the court found that IECI failed to provide sufficient factual evidence to support this claim and even if it had, the agreement’s validity was irrelevant because the rights of third-party providers to perform code enforcement services for private parties would remain the same even if the cooperative agreement was declared invalid.

IECI also challenged the validity of the cooperative agreement on the basis that it exceeded the scope and purposes of SCPDC’s corporate charter, which set forth that SCPDC was established as a nonprofit corporation for the purposes of performing functions similar to a governmental administrative agency. The court dismissed this claim as well, however, again finding that IECI lacked standing. As the court explained, the only parties who were authorized to contest alleged ultra vires actions taken by a nonprofit were members of the nonprofit, its legal representatives, or the state. IECI fell into none of these categories and therefore could not attack the validity of the cooperative agreement on this basis.

I E C I, LLC v. South Cent. Planning & Dev. Comm’n, Inc., 2022 WL 533883 (La. App. 2/23/22)

Please see the below from NYCOM. Available here: https://www.nycom.org/images/Open_Meetings_Law_2022_Amendments_-_New_Videoconference_Procedures.pdf

Overview
As part of the 2022 Enacted State Budget,1 the NY Legislature amended the NYS Open Meetings Law to provide when and how public bodies may conduct meetings via videoconference technology. Accordingly, the previous videoconference authorization, which was enacted in 2000, has been repealed and replaced with a new, substantially different videoconference provision. In addition, from April 9, 2022 through June 8, 2022, public bodies may continue to conduct meetings following the remote meeting procedure that was authorized pursuant to Executive Order 202.1 and Chapter 1 of the Laws of 2022 during the pandemic.

The NYS Open Meetings Law
The Open Meetings Law (OML), Article 7 of the Public Officers Law (§§ 100‐111), outlines basic requirements for meetings conducted by public bodies.

Public Officers Law § 102(1) defines a “meeting” as “the official convening of a public body for the purpose of conducting public business.” Any time a quorum of a public body gathers for the purpose of discussing public business, the meeting must be open to the public, whether or not the body intends to take action or vote on a particular issue.2 Consequently, meetings include “workshops,” “work sessions,” and “agenda sessions.”3 Chance meetings or social gatherings are not covered by the OML since these are not official meetings. However, public officials may not discuss public business at chance meetings or social gatherings.4
Basic Requirements of the Open Meetings Law

There are four basic requirements of the New York State Open Meetings Law:

• All meetings must be noticed;
• The public must be allowed to attend and observe the meetings in person except that portion of a
  meeting which is in executive session;
• Proposed local laws, rules, regulations, resolutions, and policies, and any record which is subject to
  disclosure under FOIL which is scheduled to be discussed at the meeting must be made available to the
  public to the extent practicable; and
• The public body must make minutes of the meeting available within two weeks of the meeting and
  within one week of the executive session.
  For more information on the OML’s specific requirements, see the NYCOM Handbook for Village Officials,
  Chapter 6, and the NYCOM Handbook for City Officials, Chapter 4, as well as the NYS Committee on Open
  Government website at https://opengovernment.ny.gov.
  The OML’s New Videoconference Procedure
  As of April 9, 2022, the previous videoconferencing provisions found in Public Officers Law § 103(c) are removed, and public bodies wishing to conduct meetings via videoconference must comply with the new requirements of Public Officers Law § 103‐a.
  Specifically, Public Officers Law § 103‐a(2) authorizes public bodies to conduct meetings using videoconference technology so long as a quorum of the public body is physically present at one or more of the locations where the public can also attend in person. This requirement can be satisfied, for example, if three members of a five‐member public body are physically present in the municipal hall and the public is allowed to attend at that location or if three members of a five‐member public body are participating via videoconference but from three
  different locations and the public is allowed to by physically present at each of those locations.
  Additionally, the law requires public bodies comply with the following in order to conduct any meeting via videoconference: The local government must adopt a local law or an individual public body must adopt a resolution
  authorizing the use of videoconferencing
  a. For itself and its committees or subcommittees or
  b. Specifying that each committee or subcommittee may make its own determination. The public body must (a) adopt written procedures governing member and public attendance consistent
  with Public Officers Law § 103‐a and (b) conspicuously post those written procedures on the public
  body’s website. Members of the public body must be physically present at one of the meeting locations at which the
  public can attend in person unless the member is unable to be physically present due to extraordinary
  circumstances, as set forth in the public body’s adopted meeting procedures, which include disability,
  illness, caregiving responsibilities, or any other significant or unexpected factor or event which
  precludes the member’s physical attendance at such meeting. Members of a public body do not have a
  right to attend meetings remotely but may participate remotely via videoconference only at the
  discretion of the public body.
• Except in the case of executive sessions conducted pursuant to Public Officers Law § 105, the public
  body must ensure that members of the public body can be heard, seen, and identified while the meeting
  is being conducted, including but not limited to any motions, proposals, resolutions, and any other
  matter formally discussed or voted upon.
• The minutes of meetings involving videoconferencing must include which, if any, members participated
  remotely and must be made available to the public pursuant to Public Officers Law § 106.
• The public notice for the meeting must (i) inform the public (a) that videoconferencing will be used, (b)
  where they can view and/or participate in such meeting, and (c) where required documents and records
  will be posted or available, and (ii) identify the physical location(s) where members of the public body
  will be participating in the meeting and where the public can attend the meeting in person.
• The public body must record each meeting that uses videoconferencing and such recordings must be
  posted or linked to on the public body’s website within five business days of the meeting. The
  recordings must remain available for a minimum of five years thereafter, and recordings must be
  transcribed upon request.
• The public body must provide the opportunity for members of the public to view the meeting via video.
  Additionally, at meetings where public comment or participation is authorized, members of the public
  must be able to participate in the proceedings via videoconference in real time. The public body must
  ensure that the videoconferencing provides the same opportunities for public participation or testimony
  as in‐person participation or testimony.
• A local public body electing to utilize videoconferencing to conduct its meetings must maintain an
  official website.
  If a public body broadcasts its meetings or conducts its meetings via videoconference, it must use technology that permits members of the public with disabilities to access the video in a manner consistent with the 1990 Americans with Disabilities Act (ADA). Information on how meetings can be made accessible to attendees with disabilities can be found online at http://www.section508.gov/create/accessible‐meetings/. In addition, local officials should consult with their municipal attorney to ensure compliance with this requirement.
  In summary, the Open Meeting Law’s new videoconference provisions allow a member of a public body to participate in a meeting of a public body without allowing members of the public to be physically present at the location from which they are participating in the meeting if (a) extraordinary circumstances exists such as disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member’s physical attendance at such meeting, and (b) at least a quorum of the public body are participating in the meeting from a location or locations at which members of the public may physically attend in person. Note that the public notice for the meeting must inform the public that videoconference will be used at the meeting. In addition, Public Officers Law § 103‐a continues to prohibit meetings from being conducted using only teleconferencing technologies.
  Emergency Meetings
  Part WW of Chapter 56 of the Laws of 2022 also creates an emergency exception to the in person requirement associated with videoconference meetings. Specifically, if (1) the Governor has declared a state of emergency or the local chief executive has declared a local state of emergency pursuant to NYS Executive Law § 24 and (2) the public body determines that the circumstances necessitating the emergency declaration would affect or impair the ability of the public body to hold an in person meeting, then the public body is not required to hold an in person meeting.5
  Although not required by Public Officers Law § 103‐a, NYCOM recommends that, when a public body invokes this emergency exception and takes action at a meeting without allowing members of the
  public to be present, at its next meeting where the public is allowed to attend, the public body should it
  acknowledge the previous meeting and summarize any action taken thereat. Moreover, public bodies must still produce minutes of such emergency meetings pursuant to the requirements of the Open Meetings Law. Finally, local governments are strongly encouraged to consult with their municipal attorney before holding an emergency meeting where the public is not allowed to attend in person.
  Expiration of Videoconference and Emergency Meetings Provisions
  The videoconference and emergency meeting provisions of Part WW of Chapter 56 of the Laws of 2022, as described above, took effect on April 9, 2022, and will expire and be deemed repealed July 1, 2024.
  Temporary Remote Meeting Authorization
  Lastly, Part WW authorizes public bodies to continue to conduct meetings following the procedures set forth in Chapter 1 of the Laws of 2022 through June 8, 2022. Specifically, any public body may meet and take action remotely by conference call or similar service and without permitting public‐in‐person access to the meeting, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.
  This language mirrors the language found in Governor Cuomo’s Executive Order 202.1, which suspended the in‐person requirement of the NYS Open Meetings Law for most of the State’s declared COVID state of emergency.
  The law does not indicate by when the recordings must be transcribed. Local officials are encouraged to have the meetings transcribed within a reasonable period of time. Moreover, public bodies must still prepare meeting minutes within two weeks of the meeting, and within one week of an executive session. The transcription requirement does not obviate the obligation to prepare minutes
  in accordance with the requirements of the Open Meetings Law.
  The notice for remote meetings conducted must clearly state the specifics of the meeting:
• The name of the public body meeting;
• The date and time of the meeting;
• Whether the meeting is being conducted in accordance with Part WW of Chapter 56 of the Laws of 2022;
• The method that the public body will be using to conduct the meeting (e.g., videoconference or
  teleconference);
• How the public can view or listen to the meeting;
• If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the
  public of the internet address of the website streaming such meeting; and
• If the meeting will have a public comment period or if a public hearing is being conducted, the noticed
  should indicate that individuals may submit comments via email or regular mail, whether such written
  comments must be received prior to the commencement of the meeting or whether the meeting/public
  hearing will be held open for a specific number of days for the receipt of such written comments, and that
  the written comments will be made part of the record.
  1 Part WW of Chapter 56 of the Laws of 2022
• 2 Orange Co. Publications v. City of Newburgh, 60 A.D.2d 409 (2d Dep’t. 1978), aff’d. 45 N.Y.2d 947.
• 3 N.Y. St. Comm. Open Gov’t. OML‐AO‐4506.
• 4 Kissel v. D’Amato, 97 Misc.2d 675 (Sup. Ct. Nassau Co. 1979), mod on other grounds, 72 A.D.2d 790 (2d Dep’t. 1979).
• 5 Public Officers Law § 103

This post was authored by Julie Tappendorf, Esq. and it originally appeared on the Ancel Glick Municipal Minute Blog. It is reposted with permission.

In Wortham v. Village of Barrington Hills, 2022 IL App (1st) 210888, the Village notified a homeowner who was renting out their home as a short-term rental more than 40 times on VRBO that the short-term rental use was not allowed in the R1 district which only permits single-family uses. The homeowner ignored the notice, and continued to rent out their home. The Village sent two additional notices before sending notice to appear before a hearing officer on the alleged Zoning Code violations. The hearing officer found the short-term rental use to be an unlawful commercial lodging use that was not a permitted use in the R1 district under the Village Zoning Code and imposed a fine of $26,250 and ordered the homeowners to cease renting their home out. When the homeowners continued to rent out the home, the Village cited them again, and the hearing officer imposed a second fine and another order to cease the illegal use of the property. The homeowners appealed both administrative hearing decisions to the trial court, which upheld the Village’s decisions. The homeowners then appealed that ruling.

On appeal, the Appellate Court reviewed the Village’s Zoning Code, specifically to determine whether the short-term rental use was permitted under the R1 regulations as the homeowners argued or constituted an unlawful commercial use as the Village argued. First, the Appellate Court held that the short-term rental use was not a permitted home occupation under the Zoning Code, which was the only lawful commercial use of R1 zoned property. The Court determined that the homeowners’ advertisement of the use on VRBO, the parking of multiple vehicles in the driveway during the short-term rental use, and the installation of a keypad on the door gave an outward appearance of a vacation rental business, not a single family residence. Second, the Court found that the short-term rental use was not consistent with the “intent and purpose” of the Zoning Code which included the prevention of the harmful encroachment of incompatible and inappropriate uses into residential areas. Finally, the Court rejected the homeowners’ argument that the fact that the Village prohibited short-term rentals but allows longer term leases was unconstitutionally vague because the Zoning Code did not define the appropriate time-frame for unlawful or lawful leases, finding it to be an impermissible facial challenge to the Zoning Code.

In sum, the Appellate Court upheld the Village’s citation of the homeowners for improperly using their single family home as a short term rental use in violation of the Village’s Zoning Code.