This post was authored by Olena Botshteyn, Esq.

GEFT Outdoor LLC (“GEFT”) is a company engaged in constructing and operating signs on the properties which it buys or leases. GEFT wanted to build a digital billboard on a property, partly located in Monroe County, and display various forms of commercial and noncommercial speech. The County has a sign ordinance (“Sign Standards”), containing certain limits on signs, including prohibition of off-premises commercial signs as well as height, area and setback requirements. In January, 2019, GEFT applied for variances from such requirements in order to construct its billboard, and the County’s Board of Zoning Appeals (“BZA”) unanimously denied the application. GEFT then commenced an action, asserting First Amendment violation and challenging Sign Standards as an unlawful content-based regulation and an unlawful prior restraint.

When considering whether Sign Standards is an unlawful content-based regulation, the court first determined that the code is facially content-based, since the government had to look at the content of the sign to determine how the sign was to be regulated. The code exempts four categories of signs from the general permitting requirement: small signs, governmental signs, sculptures, mosaics and other features that do not incorporate advertising, and temporary noncommercial signs. The latter three categories, challenged by GEFT are content-based, as the County has to read the sign and categorize it. Off-premises sign ban is also content-based, since the County must evaluate the content of the sign to determine whether it relates to the business on the premises. The court further determined the applicable level of scrutiny.

Generally, all content-based regulations must pass strict scrutiny, however, when it comes to commercial speech, intermediate scrutiny applies. The court thus concluded that intermediate scrutiny applies to the on-premises/off-premises commercial sign distinction, and further determined that the off-premises commercial sign ban passes the scrutiny. County’s asserted interests in preserving aesthetic beauty and traffic safety are substantial interests at stake which survive intermediate scrutiny. The court further concluded that strict scrutiny applies to all except of the temporary noncommercial sign exemptions to the Sign Standards’ permit requirement, and that the exemptions do not pass the strict scrutiny. When the court discussed the governmental signs exemptions, it stated: “a city’s billboard could be just as distracting to drivers as a church’s billboard. Yet, a community center would need a permit for its distracting sign, and the city would not.” The court further explained that a wordless mosaic is not inherently less distracting to drivers or prettier than the one that identifies a name “by nature of such identification or lack thereof.”

Further, GEFT argued that the County’s sign scheme is an unlawful prior restraint. A prior restraint is any law “forbidding certain communications when issued in advance of the time that such communications are to occur.” Sign Standards constitute prior restraint, as they prohibit signs unless a permit is obtained. To be constitutional, prior restraint must provide for certain procedural safeguards guiding official’s decisions. At the same time, the Supreme Court previously stated that “commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it.” Having reviewed the applicable caselaw, the court agreed with the courts that refused to apply traditional prior-restraint safeguards to regulations of commercial speech and concluded that it would not require the Sign Standards to comply with the procedural safeguards’ requirement.

Finally, the court determined that the variance process established by the County gives it too much discretion. Pursuant to the Sign Standards, the BZA has the power to approve variances contingent on any condition imposed “to protect the public health, and for reasons of safety, comfort and convenience.” This, the court stated, is too broad of a standard. Having concluded that the code’s provisions are severable, the court permanently enjoined the County from enforcing the governmental and non-identifying features exemptions and applying the variance process to variances from the sign requirements. Summary judgment was granted in part, and denied in part to GEFT.

GEFT Outdoor, LLC v Monroe County, IN, 2021 WL 3514155 (SD IN 8/10/2021)

This post was authored by Olena Botshteyn, Esq.

In November 2018, Razz Halili Trust (“Trust”) applied to the Hancock County Planning and Zoning Commission (“Commission”) for site-plan approval to operate a marina. The application stated that the Trust did not intend to process seafood in any way, only to unload oysters for further shipping. The Trust’s property is located in Zone C-4, where the use as a marina is allowed as a matter of right. The County zoning ordinance defines a marina as a “boat basin, harbor or dock, with facilities for berthing and servicing boats, including bait and fishing tackle shop and eating establishments.”

In January 2019, the Commission held a hearing on the Trust’s application and unanimously voted to recommend approval to the Board of Supervisors of Hancock County (“Board”). Further, at the meeting with the Board, the Trust clarified the intended use of the property, stating that they would merely be unloading oysters at the site, and the only equipment there would be a conveyor to get them to the trucks. The Board members were not certain whether unloading oysters does not mean processing them, as seafood processing is a prohibited use in Zone C-4. The Board referred to a state licensing statute, defining a seafood processor as a person “engaged in the canning, processing, freezing, drying, or shipping of oysters, fish, saltwater crabs, or saltwater shrimp.” The Board then concluded that the site plan was for seafood processing and not a marina, because the Trust intended to ship oysters, and rejected the application. The Trust appealed to the circuit court, which concluded that there was no evidence in the record, indicating that seafood processing would occur at the site and reversed the Board’s decision. The Board then appealed.

On appeal, the court concluded that the Board’s decision was arbitrary, capricious and not supported by substantial evidence, and affirmed. First, the court stated that the Board’s decision to rely on state licensing statute’s definition rather than the definitions in its own ordinance to determine the Trust intended to have a marina at the site or process seafood was unreasonable and showed that the Board disregarded the facts in this case. The court further clarified that the Trust’s status as a seafood processor is irrelevant here; what was relevant was whether the Trust actually intended to process seafood at the site. Nothing in the record indicated that the Trust intended to do anything beyond unloading oysters for further shipping. In other words, even if the Trust was a seafood processor by classification, this did not mean that it would be engaged in processing oysters at the site. The court ultimately concluded that the Board misunderstood the facts and failed to apply them to the law, held that that the Board’s decision was arbitrary and capricious, and affirmed the decision of the circuit court.

Board of Supervisors of Hancock County v Razz Halili Trust, 2021 WL 2587103 (MS 6/24/2021)

This post was authored by Olena Botstheyn, Esq.

Styller family owned a family house in a single-resident zoning district in the town of Lynnfield (“Town”). Between 2015 and 2017 the house was used for short-term rentals and rented out multiple times to a group of six or more guests. In 2016, the Town building inspector notified Styller that use of his home for short-term rentals violated the town’s zoning bylaw, as it constituted a lodging or rooming and qualified as additional use under the bylaw and required a prior authorization. The building inspector then ordered Styller to stop offering the house for short-term rentals, and Styller appealed to the board. While the appeal was pending, the town amended its bylaw expressly to prohibit short-term rentals in single-resident zoning districts, without prior authorization. The board then upheld the decision of the building inspector. Styller commenced an action with the Land Court, which affirmed the board, having concluded that before the bylaw was amended, “short-term rental use of the property constituted an additional use because it was functionally equivalent to use as a “tourist home” or “lodging house.” Styller appealed.

On appeal, the court first considered the issues of standing and mootness, as after the trial in the Land Court, but before judgment entered Styller sold the property. The court concluded that Styller had standing, since the use of the property is not such that is linked with a particular party. With regard to mootness, despite the fact that the ownership transferred and Styller may no longer have personal stake in the litigation, the court decided to exercise discretion and decide this case in the public interest, stating that it is “an important public question whose resolution will affect more persons than the parties to the case.”

Further, the court stated that it agreed with the plaintiff that the short-term rental was not an additional use, but ultimately concluded that it was not a specifically permitted principal use either. The court evaluated the terms of a “lodging house” and a “tourist home” and came to a conclusion that short-term rentals do not qualify for either one, as both terms entail that only part of a property is occupied by a person that comes for a short stay, and the rest is occupied by the owner, who remains on the property. During short-term rental of Styller’s house, tourists occupied all rooms in the house and the owner was not on the property. Nonetheless, the house did not constitute a permissible primary use as a one family detached house either, according to the court. The primary purpose of the single-residence zoning district is to preserve the residential character of the neighborhood. Where short-term rentals are at issue, there is an “absence of stability and permanence of the individuals residing in those districts, [and] the goal is necessarily subverted.” A “residence” is commonly understood to mean a place where one stays permanently, not temporarily. The court thus concluded that the plaintiff’s use of the property for short-term rentals was not a permissible use under the Town’s zoning bylaw and affirmed.

Styller v Zoning Board of Appeals of Lynnfield, 487 Mass. 588 (MA 6/7/2021)

This post was authored by Olena Botsthyen, Esq.

Dipal Corporation (Dipal) leases a one-story property in the town of Houston, Pennsylvania and operates two businesses there: Quick Stop, a convenience store, and Gabby’s, a bar and a restaurant. Both businesses were opened before the area was zoned as residential, and are grandfathered nonconforming uses. Dipal sought to expand Gabby’s license for the sale of beer and wine at the convenience store, and to do that, Dipal was required to add seating for at least 30 people at Quick Stop. When Dipal added the seating, the Zoning Officer inspected the property and then informed Dipal that it had improperly expanded nonconforming use of the property. Dipal appealed to the Zoning Board. At the Board hearing, Dipal’s owner, Patel, testified that for about 12 years the convenience store had a kitchen and that when he added seating, he intended merely to expand the alcohol license and not to sell alcohol for consumption inside the store. Patel also testified that he was uncertain whether this was an expansion of an existing nonconforming use or an accessory use, but emphasized that the kitchen was already there. After hearing the testimony, the Board denied the application, having concluded that adding seating to a convenience store constitutes an improper expansion of a nonconforming use, as such an expansion does not fall within the category of a natural expansion. Dipal then commenced this action, and the trial court concluded that since Dipal intended to use the existing kitchen to provide prepared food to its customers, the Board “reasonably could conclude that said food preparation constituted an eating establishment,” and further explained that the right to expand does not include the right to add a second nonconforming use. Dipal appealed to this court.

On appeal, Dipal invoked the doctrine of natural expansion, which permits a landowner to develop or expand a business as a matter of right notwithstanding its status as a nonconforming use. It further argued that no evidence showed that the addition of seating inside Quick Stop would change its primary business, which would remain the sale of food and beverage for household consumption, and the seating is intended merely to allow Dipal “to sell beer and wine to go as well as utilize the preexisting kitchen to sell prepared deli items for on-site consumption.” The court agreed with this argument. It determined that Patel’s testimony showed Dipal’s intention to increase in “magnitude” while maintaining an existing nonconforming use, and remain competitive on the market. Further, the court was unconvinced by the Board’s concerns about the possibility of increased patron activity and increased parking requirements, and determined that they were not supported by evidence. The court ultimately concluded that the Board abused its discretion when it denied Dipal’s application to expand its existing nonconforming use, and reversed.

Dipal Corporation v Chartiers Township Zoning Hearing Board, 2021 WL 3438863 (PA Cmwlth 8/6/2021)

This post was authored by Olena Botstheyn, Esq.

In the Fall 2016, Stephen Henry rented a property in the City of Somerton (“City”) with an intention to establish a church there (“Iglesia”). The City’s zoning ordinance (“Ordinance”) required a conditional use permit (“CUP”) to start a church in this location. When Henry leased the property, he did not apply for a CUP, but proceeded with opening the Iglesia without a permit. Prior to opening the church, he conducted certain electrical repairs, and although he was informed by the building inspector, Lopez, that such repairs required an electrical permit, he never applied for one either. Lopez then issued a Stop Work Order for performing unauthorized electrical repairs, and Carmen Juarez, the City’s Community Development Director, informed Henry that an electrical permit would not be issued without a CUP.

In October 2016, Henry sent a letter to the City, arguing that the City Ordinance conflicted with Arizona and Federal laws protecting the free exercise of religion and that he did not intend to apply for a CUP. The Iglesia opened in November 2016, and has been operating ever since. Legal proceedings followed, including a criminal proceeding, pertaining to Henry’s work in the church without required permits. In August 2017, Arizona Attorney General’s office informed the City that the Ordinance appeared to violate Arizona’s Free Exercise of Religion Act (“FERA”). In September 2017, the City amended the Ordinance and a CUP was no longer required to establish a church. The criminal charges were later dismissed, and Henry commenced this action, bringing claims for FERA violation, First Amendment right to free exercise of religion violation, malicious prosecution under state and federal law, a claim that the City’s Zoning Code constitutes a prior restraint on religious exercise and an equal protection violation under federal and state law. Both the Plaintiffs and Defendants filed motions for summary judgement, and the parties had to show no genuine factual dispute to obtain one.

First, the court addressed the Plaintiffs’ motion, and specifically a claim that the City’s Ordinance contains language that constitutes a prior restraint on their First Amendment rights. The court concluded that this claim was not ripe, and therefore Plaintiffs had no standing for this claim. To assert this claim Plaintiffs had to apply for a CUP and receive a negative decision. Since they had never done that, the court dismissed the motion with regard to this claim.

The court went on to consider Defendants’ motion for summary judgment on all remaining claims and on qualified immunity for the City officials. With regard to immunity, the court engaged in a requisite test and concluded that both Juarez and Lopez were entitled to qualified immunity. The main issue was whether a reasonable official in their position would have known that acting in line with the zoning ordinance and requiring Henry to obtain the necessary permits would violate his constitutional rights. The court determined that they would not have known that and that the City shall be the only Defendant.

Further, the court entered the summary judgment on the FERA claim for the Plaintiffs, having concluded that the CUP requirement contained in the unamended version of the Ordinance treated the Iglesia on less than equal terms with nonreligious assemblies. FERA generally provides that “[g]overnment shall not impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly.” Since the Ordinance did not require that nonprofit fraternal or social club organizations apply for a CUP, the court concluded that it treated the Iglesia on less than equal terms, and granted summary judgment for this claim to the Plaintiffs.

The court then granted summary judgment for all other claims to the Defendants. When arguing their free exercise of religion claim, the Plaintiffs were required to show that the Ordinance was only enforced against religious institutions and failed to do so, as the Ordinance applied both to religious and secular uses. Further, when arguing malicious prosecution, Plaintiffs failed to show that criminal proceedings against Henry were instituted without probable cause. Defendants argued that the mere fact that Henry conducted services in his church without a CUP constituted a probable cause, and the court agreed. Finally, when arguing equal protection claim, Plaintiffs failed to show discriminatory intent in the actions of the City’s employees and identify individuals who were treated differently than Henry after refusing to obtain a CUP. The court found that “to the contrary, if the City had not required Mr. Henry to apply for a CUP, then it would have been treating him differently that those who had been required to obtain one.” The court thus granted the Defendants summary judgment on all claims, except for the FERA claim.

Henry v City of Somerton, 2021 WL 2514686 (D AZ 6/17/2021)

This post was authored by Olena Botshteyn, Esq.

Barris owns a 4.66 parcel of land in the Stroud Township (“Town”). With the aim of regulating discharge of firearms, in 2011 the Town enacted Ordinance No. 9-2011 (“Ordinance”), which provided that a firearm shall not be discharged “within 150 yards of an adjacent occupied structure” and that a shooting range required a zoning and occupancy permit, issued by the township zoning officer. In December 2012, Barris submitted a zoning permit application to have a shooting range on his property. The zoning officer denied the application, as the zoning ordinance allowed shooting ranges only in O-1 Open Space and Preservation Zoning District, and S-1 Special and Recreational Zoning District, and Barris’ property was located in R-1 Low Density Residential Zoning District. The zoning ordinance also required a minimum parcel size of five acres for a shooting range use.

In September 2015, Barris filed a complaint with the trial court, alleging that the Ordinance violates the Second Amendment to the United States Constitution, Article I of the Pennsylvania Constitution and is preempted by the Pennsylvania Uniform Firearms Act of 1995 and the range protection statutes. The trial court dismissed the claim, stating that the Ordinance expressly allows discharge of firearms for self-defense as authorized under Pennsylvania law. With regard to the Firearms Act, the court concluded that discharge of firearms is omitted from its scope, and therefore it does not preempt the Ordinance. On appeal, the court vacated the trial court’s order and remanded, stating that the trial court “failed to conduct any constitutional analysis” of the Barris’ claim. On remand, the trial court granted summary judgment to the Town, having concluded that the Ordinance did not violate Barris’ Second Amendment right to conduct target practice on his residential property, and Barris appealed.

On appeal, Commonwealth Court concluded that the trial court erred in granting summary judgment to the Town. Relevant caselaw on the topic leads us to a conclusion that that the right of armed defense provided by the US Constitution includes a right “to acquire and maintain proficiency in firearm use through target practice at a range.” In several cases courts required that municipalities establish a close fit between the zoning restrictions as applied to shooting ranges and the public interests they serve.

Here, the court employed a two-step inquiry to determine whether a constitutional violation took place. The first step required the court to determine “whether the Ordinance imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” The court concluded that it does, as the Ordinance prevented Barris and other individuals from target practicing on their property, regardless of characteristics of such property. The second step was to determine the appropriate level of scrutiny to weigh government’s justification that the Ordinance is constitutional, and the court concluded that intermediate scrutiny shall be applied. The Town stated that it had a reasonable interest in public safety, and “that interest in public safety is well served if its citizens are not shot by accident, especially those visiting the mall nearby,” but the court was not convinced that a person’s right to maintain proficiency in firearm use should be contingent on residing in zoning districts O-1 and S-1. The court’s ultimate opinion was that the Ordinance burdened more conduct than was reasonably necessary.

Senior Judge Leadbetter in his dissenting opinion disagreed with the majority, stating that the right to maintain proficiency in firearm use does not mean that the shooting ranges shall be permitted in every zoning district, particularly residential districts. He also found 5-acre lot size or 150-yard setback requirement to be reasonable restrictions.

Barris v Stroud Township, 2021 WL 2177376 (PA Cmwlth 5/28/2021)

This post was authored by Olena Botshteyn, Esq.

David Meyberg commenced this action after being denied an operating permit for his surf school, asserting violation of the Sherman Antitrust Act, as the city limited the number of permits available, as well as violation of the First Amendment rights, arguing that the City employee prevented him from operating his surf school in retaliation for prior litigation. The district court dismissed the action, and Meyberg appealed.

On appeal, the court concluded that both Meyberg’s claims fail. First, it determined that the city is immune from a claim under the Sherman Antitrust Act. The Supreme Court has previously held that local governments are immune as long as the challenged action was “undertaken pursuant to a ‘clearly articulated and affirmatively expressed’ state policy to displace competition,” authorized by the state. Both the California Government Code and the Coastal Act provide for expressly delegated zoning authority by the state to the city, and with the aim of promoting conservation of coastal zone resources the city was authorized to limit business activity on public beaches. Accordingly, the court concluded that the city was entitled to limit the number of surf school permits available.

Further, with respect to the First Amendment violation, Meyberg claimed that a City employee, Carol Scurich, was a party in a 2007 lawsuit in which he acted as counsel, and therefore, her actions in denying a permit can be regarded as retaliation. The court ultimately concluded that Meyberg failed to provide evidence that “the protected activity was a substantial or motivating factor in Scurich’s conduct.” The court thus affirmed the decision of the district court.

Meyberg v City of Santa Cruz, 2021 WL 3630226 (9th Cir CA 8/17/2021)

This post was authored by Olen Botshteyn, Esq.

This case concerns a dispute between the Cayuga Nation (the “Nation”), a federally recognized Indian tribe, and the Village of Union Springs (the “Village”) over a parcel that is located within the bounds of both the Village and the Cayugas’ historic reservation. Over the history, different federal policies applied towards Native Americans, including forced segregation in the eighteenth century, allotment era in the nineteenth century, which was aimed at forced assimilation and finally the period of restoration of lands to tribal ownership as well as exemption of land from state and local taxation, which began in the twentieth century. In a series of litigation that followed these changes, the Supreme Court held that allotment of tribal lands that previously took place did not by itself terminate existing treaty reservations, and that only the Congress has a power to establish and terminate reservations. In the 1970s, following the Court’s reaffirmation that states generally lack authority to regulate Native Americans on reservation land, tribes began opening and using gambling facilities as a means of generating revenue. Then in 1988, with the purpose of reducing tensions between the tribes and local governments which arose after this, the Congress enacted Indian Gaming Regulatory Act (IGRA) “to provide a statutory basis for the operation of gambling by Indian tribes.” IGRA preempts all state and local regulations over gambling with the bounds of an Indian reservation.

In the 1970s, the Cayuga and Oneida Nations filed a series of cases in federal court, seeking to establish that in the past New York illegally acquired land that belonged to the reservations. Having successfully asserted its rights over its historic reservation, the Oneida Nation started purchasing land within the reservation’s bounds and subsequently refused to pay local property taxes. It then sued the City of Sherill, claiming tax immunity, and won. Meanwhile the Cayuga Nation pursued similar efforts. In 2003 it acquired a parcel in the Village and began construction on the property, without following the permitting process, established by the Village’s laws. After the Village issued a series of stop work orders, the Nation sued the Village claiming Nation’s sovereignty over the parcel. In 2004, the district court granted summary judgment to the Nation, and while the Village’s appeal was pending, the Nation opened a gaming facility on the property.

In 2005, however, the court reversed Oneida’s tax immunity case, having concluded that permitting the Oneida Nation to revive “present and future Indian sovereign control, even over land purchased at market price, would have disruptive practical consequences.” In light of this reversal, on appeal, the Nation’s case against the Village was remanded and the district court concluded that the Nation’s efforts to prevent the application of zoning and other local land use laws were “even more disruptive” than Oneida Nation’s efforts to avoid the payment of local taxes, and the gaming facility closed. In 2013, however, it reopened and the Nation informed the Village that the gaming offered at Lakeside (the facility) was governed by IGRA which preempts state and local laws, and that it was not required to obtain a license from the Village. The Nation then applied for a certificate of occupancy and the Village refused, claiming that operation of a gaming facility without a license was in violation of a 1958 games of chance ordinance. The Nation then commenced this action, seeking to establish that the 1958 Ordinance is preempted by IGRA and it was not required to obtain a license from the Village to operate Lakeside. In March 2020, the district court granted summary judgment to the Nation, and the Village appealed.

On appeal, the Village asserted issue and claim preclusion and argued that IGRA preemption was actually litigated in 2003 or, in the alternative, that the Nation was required to litigate it then. The court disagreed. The 2003 litigation arose from the claim of tribal immunity from the Village’s zoning laws and the Nation did not premise its claim on IGRA preemption. In addition, when the 2003 complaint was filed, the Nation had not begun gaming, and the Village had not sought to enforce the 1958 Ordinance, and all in all the cause of action was different than in the present case. Further, on the merits, the court came to a conclusion that IGRA applies here, as the parcel is considered a part of the Indian reservation. “By 1988, it was well understood that once a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise,” and based on this argument, the parcel is the part of the Nation’s reservation. The court thus concluded that the parcel qualifies as “Indian lands” within the meaning of IGRA and that IGRA preempts state and local laws that purport to regulate or limit gaming on the parcel.

Cayuga Nation v Turner, 2021 WL 3160077 (2nd Cir. CA 7/27/2021)

This post was authored by Olena Botshteyn, Esq.

North Mill Street, LLC (“NMS”) owns a parcel of commercial real estate in Aspen, Colorado. The parcel is located within a Service Commercial Industrial (“SCI”) zoning district, and when NMS purchased the parcel free market residential (“FMR”) development was allowed in the SCI zone as a conditional use. In 2017, the City Council adopted Ordinance 29, which amended the City Zoning Code and eliminated FMRs as a permitted conditional use within the SCI zone. After this, NMS applied to rezone the parcel to a Mixed-Use zoning district, which would allow NMS to have FMR use as additional to a commercial use of the property. The City’s Community Development Department (“CDD”) and Planning and Zoning (“P&Z”) Commission recommended the City Council to deny the application, claiming the proposed development was not compatible with the community character, and the Council agreed. NMS then had an option to go through the Planned Development (“PD”) review process, which allows to obtain a variance from the standard permitted zone district land uses, but rather than going through this process, NMS sued the City in the federal district court, asserting substantive due process, equal protection, and regulatory takings claims. The court dismissed the complaint for the lack of subject matter jurisdiction, having agreed with the City’s argument that because NMS never went through PD review, its claims were not ripe. NMS appealed.

On appeal, the court first evaluated the ripeness of the takings claim. Generally, in the zoning context, in order to ripen its takings claim, a developer must at least resort to the procedure for obtaining variances and obtain a final determination by the agency whether it would allow the proposed development. The court then made distinctions between jurisdictional and prudential ripeness, and concluded that the district court erred in dismissing the case for the lack of jurisdictional and not the prudential ripeness. The claim becomes ripe in the context of subject matter jurisdiction when the plaintiff shows that it “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” The court concluded that NMS adequately alleged that it suffered economic injury that was fairly traceable to the City’s adoption of Ordinance 29 and denial of NMS’ rezoning application, and therefore its claims were jurisdictionally ripe. At the same time, NMS’ claims lacked prudential ripeness, as “avenues still remain for the government to clarify or change its decision.” The City was not bound by the findings it made in denying the rezoning application, and could potentially grant a variance through the PD review process. Accordingly, the court dismissed the petitioner’s takings claim and other claims, having concluded that they have the same factual and legal bases.

North Mill Street, LLC v City of Aspen, 2021 WL 3163952 (10th Cir. CA 7/27/2021)

This post was authored by Olena Botshteyn, Esq.

Rebecca Minser and Tina Zion, appellants in this case, own a ten-acre property located in the Airport Compatibility Overlay District (“ACO”) in DeKalb County. Under the County Unified Development Ordinance (“UDO”), the goal of ACO district is to provide for safety and compatibility for the owners of land in the immediate vicinity of the airport.

In July 2018, appellants dug a hole in their property, with an intention, as they claimed, to displace dirt and raise the level of their driveway, without previously obtaining a permit. The zoning administrator then sent the appellants a notice, informing them that if they were building a pond, a permit would be required. After completing the construction of a pond, appellants applied for a development standards variance to retain it. The Board of Zoning Appeals (“BZA”) framed the issue at the hearing specifically as an application for a variance to retain a pond on the property. After appellants were denied the variance, they were instructed to fill the pond back in, and failed to comply. In June 2019, the Commission filed a complaint in the DeKalb Superior Court, requesting that appellants remove the pond and comply with the UDO. In December, 2020, the trial court granted summary judgment to the Commission, imposed a $1,000.00 fine on the appellants and ordered them to pay $7,573.68 in attorney’s fees. Appellants appealed.

On appeal, the court affirmed the decision of the trial court as related to the conclusion that the appellants’ construction constituted an unlawful pond. The UDO provides that constructing structures not expressly permitted is an actionable violation. It further provides that new retention and recreational ponds are expressly prohibited in the ACO zone. By digging a large hole appellants created a man-made body of water. They later applied for a variance for a “pond” and therefore, the court concluded, they can no longer claim they had not constructed a pond. The court thus found that Appellants violated the UDO by constructing a pond without the required approval.

The court further considered the issue of the attorney’s fees award and determined that the trial court erred in ordering appellants to pay the fees. The UDO provides that “a violator found liable for a violation shall be subject to a court-imposed fine,” however, it does not provide for payment of attorney’s fees as a remedy. The court thus concluded that the trial court had authority only to impose the fine, but not the payment of attorney’s fees, and vacated the order.

Minser v Dekalb County Plan Commission, 170 NE 3d 1093 (IN App. 4/28/2021)