This post was authored by Joseph DeMarzio of Touro College Jacob D. Fuchsebrg Law Center

Plaintiff, 2772 BPR, LLC appeals the judgment of the trial court in their denial of the plaintiff’s site development plan application to build a facility to be used for the bulk storage of propane tanks.  On appeal, P claimed the court erred in two ways: (1) upholding the commission’s consideration of off-site traffic concerns, the preparedness of municipal services, and the potential impact on property values when conducting an administrative review of its site development plan application, and (2) raising independently a reason to deny the appeal that was not one of the bases for the commission’s decision to deny the application. 

The appeals court determined that based on the first claim, the initial ruling of the trial court is reversed and the commission is required to approve the plaintiff’s site development plan. The court held that the trial court erroneously concluded that the commission properly considered off-site factors when it denied the plaintiff’s site development plan application, and such error likely affected the judgment.  There were three factors looked at: (1) the use of the property as a place for bulk propane storage, even though the zoning regulations fully permitted that use.  (2) its consideration of traffic concerns because, although the commission was permitted to consider traffic concerns for certain limited, site-specific purposes, the record revealed that the commission’s concerns were not limited to the site itself, and improperly encompassed the entire area.  (3) Proper emergency exists stating they did not find a way for emergency vehicles to enter and leave.  The commission did not consider alternatives to the planned entrances and exits to the property to increase emergency access that were presented at the public hearing. The Court noted that General Statutes § 8-3 (g) (1) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission . . . to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. . . . A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations. . . .”

The court held that the trial court erred and that the planning zoning commission did not properly consider off-site factors and this ultimately affected their judgment.

2772 BPR, LLC v. Planning & Zoning Comm’n of N. Branford, 207 Conn. App. 377 (2021)

This post was authored by Jacqueline Carranza of the Touro College Jacob D. Fuchsberg Law Center

Minhal Academy of Turnersville, Inc. (“MAT”) alleged that the defendants, Township of Washington and the Zoning Board of Adjustment of the Township of Washington, violated MAT’s rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §1983 based on the First Amendment’s Free Exercise Clause, the Equal Protection Clause, New Jersey Common Law, and the New Jersey Law Against Discrimination. 

Plaintiff’s mosque is located in a commercial plaza in a “Neighborhood Commercial” zoning district, where churches are prohibited under the Town’s zoning code. Usually churches are only permitted in the institutional zoning districts and mixed-use developments with the exception of those churches who were granted variances. Plaintiffs allege that when they began to use their mosque in 2014, they obtained a certificate of occupancy from the Township to use the building as an administrative office. In September of 2018, MAT received a zoning permit to use their additional condominium property as a Wellness and Healing Center without a variance. Defendants deny knowledge as to the fact that they were aware that MAT was operating a mosque and holding religious activities. Additionally, Plaintiffs allege that MAT’s relationship with the Township and the residents started to sour after the March 15,2019 mass shooting at mosques in New Zealand.  In March 2019, Defendants rescinded MAT’s zoning permit and certificate of occupancy. On August 14, 2019, MAT applied to the Zoning Board for a variance which would allow MAT to operate the space as a mosque, willing to subject to any reasonable conditions. The Zoning Board voted to deny Plaintiff’s use variance due to concerns over capacity and configuration of the parking lot for the complex where the mosque is located.

The Court found that the Plaintiffs did not meet the threshold burden of establishing that the Defendants zoning laws constituted a substantial burden on their religious exercise. A mere inconvenience is not enough to meet the substantial burden requirement when a law operates to make the practice of religious beliefs more expensive. The burden has to make the religious exercise impracticable. The court stated that while renting a space to hold religious events may cause a great expense, this does not make it impracticable. Additionally, the court noted that Plaintiff allege that the Defendants have facilitated MATs religious exercise by renting their property for religious celebrations. The court did not find a substantial hardship.

Furthermore, Plaintiffs did not identify a non-religious institution that received better treatment under the same zoning laws at issue. MAT identifies other religious institutions which allegedly received favorable treatment but did not identify any non-religious institutions that were preferable. The Court found that the allegations that MAT alleged were vague and conclusory regarding secular institutions. Additionally, Defendants denied these allegations, and the court did not find a violation of the equal terms provision.

As to its nondiscrimination claim, Plaintiff must show a facially discriminatory policy, a facially neutral policy enforced in a discriminatory manner, or a facially neutral policy purposely designed to favor some and burden others. Plaintiffs allege that Defendants discriminated against them based on their Muslim faith by failing to approve Plaintiff’s application with conditions and denying their application. However, MAT did not identify a land use law that explicitly singles out Muslim institutions. Moreover, Plaintiffs did not show that the Township treated them worse than non-Muslim institutions and are not entitled to an inference that these comparator

institutions were similarly situation on this type of motion. It is inappropriate at this stage of litigation to determine whether the comparators are similarly situation due to the requirement of a detailed analysis of variance application and hearing transcripts. The Court went on to highlight that in this motion they must view the facts in light of the Defendant’s.  Accordingly, Plaintiff’s motion for judgement on the pleadings was denied.

Minhal Academy of Turnersville, Inc. v Township of Washington, 2021 WL 3758073 (D. NJ 8/25/2021)

This post was authored by Samuel Bifulco of Touro College Jacob D. Fuchsberg Law Center

In Conshohocken Borough v. Conshohocken Borough Zoning Hearing Board, a developer sought to build a “Wawa” convenience store with gas pumps on a property in Conshohocken, Pennsylvania. Provco Pineville Fayette, the developer and owner, initially sought a special exemption or variance from the Zoning Hearing Board (ZHB) to build the convenience store in conflict with the existing zoning ordinance. The ZHB denied Provco’s application. Subsequently, Provco sought an amendment to the local zoning ordinance which, if passed by the local legislative body, would allow for convenience stores with fuel sales if certain criteria were met. On November 15, 2017, the Conshohocken Borough Council passed both the amendment in question and Provco’s final land development plan for the building of a convenience store with fuel pumps on the subject property. Disgruntled neighbors intervened and filed a substantive validity challenge with the Zoning Hearing Board.

The Zoning Hearing Board conducted hearings on the matter. Evidence was presented from the neighbors, the developer, the legislative body, and experts. In a 3-2 decision, the ZHB sustained the neighbors’ substantive validity claim and rendered the zoning amendment void. The Zoning Hearing Board held the zoning amendment reflected impermissible and unreasonable spot zoning with an  absence  of  a  legitimate  purpose  to  further  the  public  safety,  welfare,  and  morals  of  the community. Provco, the developer, appealed the ruling to Pennsylvania’s trial court, the Court of  Common  Pleas.  The  Court  of  Common  Pleas  reversed  the  ZHB  decision  in  favor  of  the  local legislative body. The matter was appealed to the Commonwealth Court of Pennsylvania.

Spot zoning, or the singling out of one lot or area for different treatment than surrounding parcels, is unconstitutional. A local governing body’s zoning ordinance is presumed valid as substantial deference is afforded to legislative bodies in zoning and land use decision making. For a challenger to prevail, they must prove that: (1) the zoning decision was in fact spot zoning, (2) the decision was arbitrary  and  unreasonable,  and  (3)  that  the  decision  failed  to  further  public  health,  safety, morals, or welfare.

The court determined that the Zoning Hearing Board did not err in holding the zoning amendment amounted to spot zoning. The holding highlighted that the particular property in question would be the sole property that could satisfy the requirements for the development of a convenience store if the zoning amendment were  to  stand.  Further, the demolition  of  existing  Victorian  structures would  be  required  if  this  project  were  to  move  forward.  Considering this,  the  court  noted  the legislative  intent  of  the  residential  office  (RO)  district  which  sought  to  preserve  the  historic Victorian character of the community.

The court also held that the zoning amendment failed to further public health, safety, morals, or welfare. The Zoning Hearing Board has the authority to hear and weigh the evidence presented and may favor the opinion of one expert over another. Relying on both the expert evidence and lay testimony regarding the impact the project would have on the neighborhood, the ZHB accepted the position of the neighbors which argued not only was spot zoning present, but it was an arbitrary decision by the legislative body.

The appeals court reversed the decision of  the  Court  of Common  Pleas,  striking  down  the  zoning  amendment  in  favor  of  the  neighbors  and  Zoning Hearing Board.

Conshohocken Borough v. Conshohocken Borough Zoning Hearing Board, 2021 WL 3610110 (PA Cmwlth. 08/16/2021)

This post was authored by Christopher Beck of the Touro College Jacob D. Fuchsberg Law Center

Petitioner, Kathleen Cox, purchased lakefront property in the City of Madison, Wisconsin. Her plans were to demolish the existing residence and build anew. The property, located on lake Mendota, included a boathouse.  The City of Madison, Code of Ordinances §28.138(4) established setbacks from the Ordinary High Water Mark [OHWM] to the house. Using formulas established in the city code, petitioner’s minimum required set back distance between the OHWM and the house was calculated to be 123.8 ft. At some point during the design phase, petitioner learned the setback shouldn’t be measured from the natural shoreline, rather, the indented shoreline under the boathouse, which was 14.6 ft closer to the planned structures, and in violation of the local zoning ordinance.

Cox filed for a variance with the zoning board appeals (ZBA). The application was supported by the city’s Zoning Administrator who recommended approval of the variance. Cox hired an engineer and architect for the project, both of whom testified before the zoning board at public hearing, but the ZBA unanimously denied the application. Cox appealed. The Circuit Court affirmed the board’s decision and dismissed the application. Cox appealed again.

The Appeals Court noted that ZBAs have the discretion to grant variances to individuals where strict application of the zoning rules would impose an unnecessary hardship on the applicant as measured against the underlying purpose of the ordinance.  ZBA decisions are given much deference by the courts.  To find the board erred, the court would have to make a determination as to “(1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence.”

The court upheld the ZBA’s determination finding that the Board made a detailed record, and analyzed each of the six elements required under Madison code in order for the ZBA to grant a variance.  The Board found that Cox did not meet two of these elements, in that compliance with the ordinance did not impose an unnecessary burden on petitioner, and the alleged difficulty was in fact, self-created. Cox claimed the board improperly applied the law in their decision making process. Specifically, they imposed a higher burden when applying the standards of elements three and four because she was building a “new” house and starting from a clean state. The appeals court concluded the record contained only commentary from different board members as to the flexibility of building from scratch, and the reality of difficulties in obtaining variances when one can build to code compliance. However, there were no conclusory statements by the board and it followed the rules of the Madison ordinance in its application to the facts at hand – there was no error in law.

The court ruled there was substantial evidence in the record to support the board’s conclusion in denial of the application. It was only after the design was settled that Cox decided to measure the setback of the planned house. Likewise, petitioner’s experts failed to testify why making slight modifications to the plans to bring the project in compliance would be unduly burdensome. Further, petitioner’s testimony merely stated that if she had to make changes to comply with the ordinance she would “not …be able to get the kind of house that [she] want[ed] there.”  There was no evidentiary basis to support the claim of an unnecessary burden to the petitioner.

Further, the hardship claimed by Cox was self-created. There was no change to the zoning ordinance. It was in place prior to and during petitioner’s designing phase. It was only after the design was settled on by petitioner that she chose to measure the setback and realized she would be in violation. Petitioner by designing her home and failing to consult or review the zoning ordinance beforehand, created her own hardship.

The court concluded the ZBA did not act in an arbitrary or oppressive manner. Instead, the record demonstrated the ZBA had sufficient evidence to reasonably support its findings and the correct standard of law was applied. Instead, the court found the petitioner failed to rebut the presumption of validity afforded the ZBA. The case highlights the importance for ZBA’s in following proper procedures and keeping a good record – when done properly, decisions are difficult to overturn. 

Cox v City of Madison Zoning Bd. of Appeals, 2020AP478, 2021 WL 2835485 (Wis Ct App July 8, 2021)

This post was authored by Cameron Balcarcel of the Touro College Jacob D. Fuchsberg Law Center

In 2012, Vanderveer started leasing space on his property to a landscaping company, however, the property in question was designated for residential use only fifty years earlier. The Town of East Hampton prosecuted Vanderveer for violations that would later be vacated. Next, Vanderveer applied to the building inspector for a preexisting nonconforming use. The building inspector denied Vanderveer’s application, the Town’s Zoning Board of Appeals and the Suffolk County Supreme Court affirmed.  Vanderveer then sued the Town, the Zoning Board of Appeals, and multiple officials in federal court.  Vanderveer alleged violations of   the Takings, Equal Protection, and Due Process Clauses.

First, the court found that Vanderveer’s violation of the Takings Clause failed to meet Penn Central’s balancing test, “(1) the economic impact of the regulation, its interference with reasonable investment-backed expectations and (2) the character of the government action.” Here, Vanderveer was prohibited from using his property for commercial use, but it still retained value with being used as a residential property.

Second, the court said that with respect to the Equal protection claim Vanderveer needed to prove that there was an intentional action by the Defendants that treated him differently from others, and either there was no rational basis for the difference in treatment or that the difference in treatment was based on race, religion, bad faith, etc. Vanderveer’s claim failed because he could not reasonably differentiate his property as required.

As to the third claim, Vanderveer asserted that the Town violated his Due Process because he could not cross-examine adverse witnesses during the Zoning Board of Appeals hearing. The court considered the following when deciding this claim, “(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3)  the  government’s  interest,  including  the  function involved and fiscal and administrative burdens that the additional or substitute requirement would entail.”  The Court denied the Due Process  claim  because  the  second  and  third factors outweighed his private interest.

The court held that the district court correctly dismissed Vanderveer’s claims, and did not abuse its discretion.

Vanderveer v. Zoning Bd. of Appeals E. Hampton, No. 20-4252, 2021 U.S. App. LEXIS 25503 (2d Cir. Aug. 25, 2021)

This post was authored by Inna Anopa of the Touro College Jacob D. Fuchsberg Law Center

West Street Associates (“WSA”), an abutting landowner, brought an action against the Planning Board of Mansfield, challenging the issuance of the special permit to construct a medical marijuana dispensary. The Superior Court found no error in the board’s decision to grant a for-profit organization a special permit. It concluded that the town’s bylaw requirement to operate a medical marijuana dispensary as a nonprofit organization was preempted by the State law that went into effect in 2017. WSA appealed.

WSA argued that the board failed to apply the town’s bylaw when issued a special use permit. The town’s bylaw demands any applicant seeking a permit to operate a medical marijuana dispensary to be a nonprofit entity. However, before WSA started the action, the medical dispensary was a nonprofit organization when the permit was granted. In 2017, the State legislature repealed the 2012 act, which required medical marijuana dispensaries to be nonprofit entities. The Cannabis Control Commission and Secretary of Commonwealth issued guidance to dispensaries seeking to convert to for-profit entities. Following the 2017 act, the medical dispensary in question transformed from a nonprofit to a for-profit corporation.

While the Home Rule Amendment authorized municipalities to self-govern in matters of local concern, the determination of whether a local regulation is inconsistent with the State law is based on a similar Federal preemption analysis. The preemption exists either expressed, implied based on clear evidence, or when there is a conflict in enforcing or exercising the law.

The Court determined that since the Legislation disavowed statutory and regulatory provisions when it released and replaced the 2012 act in 2017 and expressly allowed medical marijuana establishments to be for-profit entities, the town bylaws frustrated the purpose of the 2017 act. The 2017 act is evidence of the clear intent to allow for-profit entities to distribute medical marijuana. The bylaw restricts medical marijuana facilities in direct opposition to the State law, which explicitly determined that such establishments should not be limited to being nonprofit.

Therefore, the town’s bylaw is preempted by State law, and the board cannot be forced to revoke the special permit because the dispensary appropriately exercised its statutory right to convert to a for-profit entity.

West Street Assocs. LLC v. Planning Bd. of Mansfield, 488 Mass. 319, 173 N.E.3d 329 (2021)

This post was authored by Matthew Loescher, Esq.

On January 27, 2009, the City of New York condemned several adjoining parcels of real property in Brooklyn which were owned by the claimant, Eman Realty Corp. The claimant filed a claim against the City for just compensation seeking direct damages for the loss of the subject property. The Supreme Court determined that the claimant was entitled to an award of $5,549,000 as just compensation for the taking of the subject property. Of this sum, approximately $3,959,000 represented the value of the subject property’s land and the buildings situated thereon, and $1,590,000 represented the value of the subject property’s TDRs.

On appeal, the court first noted that the Supreme Court’s determination that the subject property’s land and improvements had a value of $3,959,000 was within the range of testimony and supported by the record. The claimant’s expert noted that income multipliers were easy to work with, in part, because a prospective purchaser would base the purchase price on the amount of revenue they could ultimately generate from the property. However, the Supreme Court’s determination that the subject property’s transferrable development rights (“TDRs”) were marketable and had a value of approximately $1,590,000 was not supported by the record. Here, the court found that the TDRs were transferred between two adjacent lots, the two lots covenant to be part of an assemblage, and should be treated as a single lot for zoning purposes.

 The claimant’s expert conceded that there was no evidence that the owners of either of these adjacent lots had interest in purchasing the subject property’s TDRs. While the claimant’s expert stated that there was one potential sale of the subject property that did not go through, he did not specify who the purchaser was or when the potential sale would have occurred. As such, the court modified the order, judgment, and fifth separate and partial final decree by subtracting from the claimant’s award the sum of $1,590,000 – representing the Supreme Court’s determination as to the value of the subject property’s TDRs – thereby reducing the final award from the principal sum of $5,549,000 to the principal sum of $3,959,000.

 In the Matter of City of New York, 2021 WL 3744809 (NYAD 2 Dept. 8/25/2021)

This post was authored by Elina Amiryan, Jacob D. Fuchsberg Touro Law Center

Rosenfeld, as trustee and as President of CommCan sought to convert a facility for dispensing medical marijuana to a facility for the retail sale of marijuana. She had received special permit approval from the Town to construct a building that would house a medical marijuana dispensary on an unimproved lot.  An abutting neighbor brought legal action challenging the special use permit, and shortly thereafter voters approved the legalized the sale of recreational marijuana. CommCan sent a letter to the Town requesting a meeting to covert the approved medical marijuana dispensary to a recreational marijuana dispensary as a result of the change in State law.  The Town declined to meet stating that the property was not zoned for recreational marijuana sales and Rosenfeld/CommCan appealed to the MA Land Court. The Court granted summary judgment to the Plaintiffs and the Town appealed.  The Supreme Judicial Court of MA transferred the case to itself on its own motion.

As to standing under MA law, “to bring a claim under G. L. c. 240, § 14A, the party must (1) own the property in question and (2) allege that the zoning bylaw or ordinance in question “restrict[s] or limit[s] the present or future use, enjoyment, improvement or development” of that property.”  The Court found that Rosenfeld was the owner of the property and that bylaw in question did restrict her use of the property.  Therefore, she had standing to bring the appeal.

Turning to the substance of the appeal, the Court noted that with respect to the new State law, “Section 3 (a) gives municipalities the power to regulate the number and location of retail marijuana establishments within their borders with certain exceptions. One such exception is that “zoning ordinances or by-laws shall not operate to . . . prevent the conversion of a medical marijuana treatment center licensed or registered not later than July 1, 2017 [, ] engaged in the cultivation, manufacture or sale of marijuana or marijuana products to a marijuana [retail facility].” § 3 (a) (1).”  The town argued that the plaintiffs did not qualify for a zoning exemption because they were not “engaged in the . . . sale of marijuana or marijuana products”  The Court noted that while the statute did not define the term “engaged” they would give the term usual and accepted meaning. The Court stated, “It is undisputed that the plaintiffs applied for and obtained the requisite provisional State license, executed a host community agreement with the town, and procured a special permit from the town’s planning board. Although construction has not begun at the property, the plaintiffs vigorously have litigated the abutter’s appeal of the special permit authorizing the dispensary. It hardly can be said that the plaintiffs were not “involved in” and “occupied” by the sale of marijuana, even though the dispensary is not yet operational.” The Court found this sufficient to constitute being “engaged” in the marijuana business as intended by the Statute.

Commcan, Inc. v Town of Mansfield, SJC-13029 (Mass. Aug. 30, 2021)

This post was authored by Matthew Loescher, Esq.

Charles Andrews, Sr., Trustee of the Gloria M. Andrews Trust, appealed from a final judgment entered against the Trust by the district court after it granted the City of Mentor, Ohio’s motion for judgment on the pleadings. Specifically, the Trust alleged that the district court erred in its resolution of the Trust’s claims arising under the Takings Clause and Equal Protection Clause, both of which stemmed from the City’s denial of the Trust’s application for rezoning of approximately sixteen acres of real property.

As to the Takings Claim, the court found that the district court erred in applying substantive-due-process precedent to determine whether the Trust holds a property interest sufficient to support its takings claim. Here, the City’s motion for judgment on the pleadings relied on the discretionary nature of its authority to deny the Trust’s application for rezoning. Since the City’s authority to deny discretionarily an application for rezoning did not preclude the Trust from holding a property interest sufficient to support its takings claim, however, the court found that the district court erred in granting the City judgment on the pleadings on this claim.

The Trust next contended that its property was similarly situated to at least the Woodlands of Mentor, which the City approved for rezoning to RVG in 2017, and that the City lacked a rational basis for denying the Trust’s substantially identical application for rezoning just two years later. The district court assumed that the Trust’s property was similarly situated to the Woodlands of Mentor, but nevertheless held that the Trust failed to allege facts showing that there was no rational basis for the City’s disparate treatment of the property. The record reflected that the court’s only potential basis in arguing that the Trust’s property was not similarly situated to the Woodlands of Mentor was the two-year gap between the two applications for rezoning. On appeal, the court held that the significance of that gap pertained to the potential for an intervening change in policy, which the Trust’s allegations sufficiently rebutted. Accordingly, the district court erred in granting the City’s motion for judgment on the pleadings as to the Trust’s class-of-one equal-protection claim.

Andrews v City of Mentor, 2021 WL 3745343 (6th Cir. CA 8/25/2021)

This post was authored by Emely Almonte, J.D. Candidate, Touro College, Jacob D. Fuchsberg Law Center

Petitioner (O’Connor) sought to subdivide a 120 foot by 57-foot lot into two 60 feet by 57-foot lots and then construct a single-family home on each lot. This required a variance from the minimum lot size set by the city of Long Beach for the neighborhood of 80 feet by 54 feet. The City of Long Beach’s zoning code requires a minimum lot size of 80 feet by 57 feet for each of the two proposed parcels in the application. The petitioner applied to the Zoning Board of Appeals (“ZBA”) for two area variances. Following a hearing, the ZBA denied the application.  Petitioner appealed alleging that the ZBA’s determination was arbitrary and capricious. The Court granted the petition and annulled the ZBA
determination and directed the issuance of the requested area variance to the petitioner, and the Defendants appealed. The court noted that although “the zoning board must weigh the benefit of the grant to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community,” local zoning boards have broad discretion in considering applications for area variances, and that courts may set aside zoning board determination only where the record reveals that the board acted arbitrarily.  The Court said that a decision is arbitrary and capricious when it does not adhere to its own precedent nor indicates its reason for reaching a different result on essentially the same facts. This court noted that where an agency reaches contrary results, it must provide an explanation and since the ZBA failed to provide a factual basis in the determination to establish why it was reaching a different result, the decision of the ZBA was arbitrary and capricious.

Matter of O’Connor & Son’s Home Improvement, LLC v. Acevedo, 197 A.D. 3d 1112 (2021)