This post was authored by Matthew Loescher, Esq.

Michael and Brenda Gainer renovated a barn on their property and began using it for paid events, such as weddings. Appellees cited appellants for changing the use of the building to “public assembly” without complying with the local building and fire codes. Appellants pursued appeals of the citations through the relevant administrative bodies and were unsuccessful. The appellants filed appeals of the administrative decisions with the Stark County Court of Common Pleas. In this case, Appellants, Michael Gainer, Brenda Gainer and Storybrook Barn, LLC, appealed the decision of the Stark County Common Pleas Court upholding the determination of the Stark County Board of Building Appeals and the Ohio Board of Building Appeals that the use of the appellants’ barn was not exempt from safety regulations as a result of the agricultural exception provided in R.C. 3781.06

On appeal, appellants first contended the trial court erred by failing to find that the use of their barn was incident to the agricultural use of the land and thereby exempt from regulation under R.C. 3781.06. The court noted that the Revised Code required examination of the use of the entire building to determine whether it was incident to the use of the land for agricultural purposes. Here, the barn was not “incident to the agricultural use of the land” but was used for assembly purposes for “close to 18 years” and was promoted on a website as an event and wedding venue. The trial court found that the housing of an event venue accommodating as many as 200 individuals created safety and sanitation risks to guests that were also not “normal in the world of agriculture.” Accordingly, the court held that the record contained a preponderance of reliable evidence to support the Boards’ decisions. Thus, the trial court did not abuse its discretion finding against Appellants.

The Gainers next argued that the trial court erred by allowing Tim Thompson to testify regarding whether the fire code was separate and apart from the building code and whether it would apply to their event venue, While the trial court summarize all of the new evidence presented at the August 20, 2020 hearing, including the testimony of Thompson, it made no findings regarding the application of the fire code. As such, Gainers’ second assignment of error was denied and the judgment of the Stark County Court of Common Pleas was affirmed.

Gainer v Cavanaugh, 2021 WL 2646168 (OH App. 6/28/2021)

This post was authored by Matthew Loescher, Esq.

The Gretna City Council adopted ordinances Nos. 2003 and 2004, which together annexed 2,953 acres contiguous or adjacent to the municipal boundaries. On the same date, the Gretna City Council adopted ordinance No. 2005, which extended Gretna’s extraterritorial zoning jurisdiction as a result of the annexations. Sarpy County brought this action in the district court for Sarpy County, seeking to enjoin the ordinances adopted by Gretna and have them declared invalid. Sarpy County contended that because the annexed area included 22 parcels with agricultural land that was rural in character, Gretna exceeded its annexation authority under Neb. Rev. Stat. § 17-407(2) when it adopted the ordinances. The district court issued its order granting Sarpy County’s motion for summary judgment and denying Gretna’s motion for summary judgment.

At the outset, the court found that the district court failed to give sufficient consideration to contemplated future development of the annexed area. Under the city’s 2017 comprehensive plan update, the proposed I-80 interchange at 192d Street and the existing Highway 370 corridor were designated as community entrance and special character areas and were expected to develop the contested areas into the city’s future growth areas. The city, the county, the state, and other governmental agencies all had plans to develop the area, because it was the fastest growing area in Nebraska. The court determined that these were characteristics “belonging to a city” and not “pertaining to the country” and were therefore urban or suburban in nature.

Parcels 19 through 21 were zoned “AG-HC,” for agricultural use with a highway corridor overlay, and were used for interim crop production at the time of this case. Parcel 22 was zoned “AGD,” for agricultural development, and was used for interim crop production and for operating a highway commercial business which operated under a special use permit. Sarpy County’s future land use plan designated these subject properties for general commercial use. Having considered the present uses of the annexed territory, as well as its contemplated future uses and existing plans for development, the court held that the annexed area is urban in character and that the ordinances were therefore a lawful exercise of the city’s annexation powers.

County of Sarpy v City of Gretna, 309 Neb. 320 (NE 5/28/2021)

This post was authored by Matthew Loescher, Esq.

Prior to 2015, the City of Santa Barbara encouraged the operation of short-term vacation rentals (“STVRs”) along its coast by treating them as permissible residential uses. In June 2015, the City began regulating STVRs as “hotels” under its municipal code, which effectively banned STVRs in the coastal zone. The City did not seek a coastal development permit (“CDP”) or an amendment to its certified Local Coastal Program (“LCP”) prior to instituting the ban. Theodore P. Kracke, whose company manages STVRs, brought this action challenging the new enforcement policy. After a bifurcated trial, the trial court granted Kracke’s petition for a writ of mandate enjoining the City’s enforcement of the STVR ban in the coastal zone unless it obtained a CDP or LCP amendment approved by the California Coastal Commission or a waiver of such requirement.

The record reflected that although the City, rather than a private entity, imposed the coastal STVR ban, it also was accomplished without the Commission’s input or approval. The LCPs in both cases were certified in the 1980s, decades before STVRs became popular due to the availability of Internet booking services. Thus, the court rejected the City’s argument that because STVRs were not expressly included in the LCP, they were excluded and the City had the right to regulate them without regard to the Coastal Act. The court further found that the City could not act unilaterally when it not only allowed the operation of STVRs for years but also benefitted from the payment of transient occupancy taxes.

The court next noted that when the City abruptly changed the existing policy, it necessarily changed the intensity of use of and access to land and water in the coastal zone. Specifically, instead of 114 coastal STVRs to choose from, City visitors were left with only six. This regulatory reduction determined to be inconsistent with the Coastal Act’s goal of “improving the availability of lower cost accommodations along the coast, particularly for low-income and middle-income families.” The trial court’s order enjoining the City’s enforcement of the STVR ban was therefore affirmed.

Kracke v City of Santa Barbara, 2021 WL 1746301 (CA App. 5/4/2021)

This post was authored by Matthew Loescher, Esq.

In June 2019, Duncan applied to the City of Pittsburgh’s Division of Zoning and Development Review for dimensional variances from the Pittsburgh Zoning Code for a Lawrenceville property currently zoned for single attached dwellings. Duncan planned to develop the property by demolishing an existing detached single residence, subdividing the parcel, and building five new four-story attached single-family dwellings with garages, rear decks, and rooftop decks. In this case, Appellant, Duncan Ventures, LLC appealed from an order of the Court of Common Pleas of Allegheny County reversing the decision of the Pittsburgh Zoning Board of Adjustment to approve his variance applications.

On appeal, Duncan argued that the nature of the property, particularly its shape and orientation in the streetscape, was such that the project must be implemented as proposed, including the requested dimensional variances. Duncan also contended that five townhouses were necessary to outweigh the purchase price and the costs associated with demolishing the existing detached single residence and constructing the new townhouses.

Notwithstanding the above, Duncan did not present any testimony indicating that due to the property’s irregular shape, there was no possibility that the property could be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance was necessary to enable the reasonable use of the property. Instead, the bulk of Duncan’s argument in favor of the requested variances was purely economic in nature. The court noted that if the variances were ultimately denied, Duncan can cancel the agreement of sale because it has already acknowledged that the sale is conditioned upon zoning approval. Moreover, to allow Duncan’s “quest for profitability” to fulfill the hardship requirement, would mean that any variance applicant could agree to a purchase a property at a higher cost than the actual zoning would warrant and then receive a variance for its proposal that was only necessary to overcome the self-created economic hardship. Here, Duncan did not dispute that the property could be developed with fewer than the five townhouses it proposes and without the requested variances. Accordingly, the legal standards for dimensional variances were not met and the grant of variances by the Board was reversed as a matter of law.

Lawrenceville Stakeholders v City of Pittsburgh Zoning Board of Adjustment, 247 A. 3d 465 (PA Commwlth 3/5/2021)

This post was authored by Matthew Loescher, Esq,

Plaintiff Lamar Company, LLC sought to digitize several of the signs it owned in the Lexington area. Citing the sign regulations in force in 2020, Defendant Lexington-Fayette Urban County Government denied Lamar’s permit applications because they requested non-permitted sign types. Lamar then brought this suit, alleging that Lexington’s sign regulations violated the First and Fourteenth Amendments to the U.S. Constitution and Sections 1, 2, and 8 of the Kentucky Constitution.

Lexington made an alternative motion to stay the case pending a decision of the United States Supreme Court in City of Austin v. Reagan National Advertising of Texas, Inc. That case presented a single question: “is the city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert, 576 U.S. 155 (2015)”. The court determined that should the Supreme Court resolve City of Austin with a substantive ruling, its result would undoubtedly control the answers to the key legal questions presented by Lamar’s Complaint. As such, it was found to be inevitable that final resolution of the merits of this matter should be delayed until City of Austin case is resolved.

The court found that the recent grant of certiorari for the Supreme Court’s October 2021 term means the delay here “will be, in all likelihood, less than a year.” The hardship imposed by this delay was further reduced because only Lamar’s damages claims remained, and the challenged ordinance here was no longer in force. Therefore, the benefits of granting the stay were found to outweigh the limited hardships it entailed.

Lamar Company, LLC v Lexington-Fayette Urban County Government, 2021 WL 2697127 (ED KY 6/30/2021)

This post was authored by Olena Botshteyn, Esq.

WBY, Inc. (“Follies”) is a strip club located in the City of Chamblee, Georgia. Before the City incorporated as an independent entity, Follies had an agreement with DeKalb County, which allowed Follies to offer fully nude dancing, sell alcohol, and remain open until 4:55 am. Upon its incorporation, Chamblee enacted a resolution, stating that it was not bound by the DeKalb Agreement, but it nevertheless permitted Follies to continue operating. In 2018, Chamblee passed several ordinances, which prohibited the sale and consumption of alcohol at strip clubs, fully nude dancing and required such bars to close at midnight. The city also changed the requirements for an establishment to qualify as a restaurant, stating that such places must “derive at least 50 percent of total revenue from the sale of food prepared and consumed on the premises.” Prior to passing the ordinances, Chamblee obtained extensive evidence of negative secondary effects of strip clubs and similar establishments. Being convinced that the new ordinances and their economic impacts will get Follies out of business, Follies commenced this action, asserting violation of the freedom of speech under the First and Fourteenth Amendments to the US Constitution as well as the state constitution, equal protection violation and impairment of contract. The district court reviewed the parties’ motions for summary judgment.

Under both the First Amendment and the free speech provision of the Georgia Constitution, nude dancing is protected as a form of expressive conduct and generally regulations restricting content-based speech are subject to strict scrutiny. However, when laws are enacted not on the basis of the content, but rather to combat negative secondary effects, they are subject to intermediate scrutiny. The court thus had to determine whether the ordinances were “designed to serve a substantial government interest and allow for reasonable alternative channels of communication,” and it concluded that they were. Chamblee relied on extensive evidence, showing the negative secondary effects of strip clubs serving alcohol, including prostitution, violence, alcohol abuse, and other crimes, and passed the ordinances that would serve a substantial government interest in reducing these. It also left alternative channels of communication, such as semi-nude erotic dancing open. The court therefore granted Chamblee summary judgment for the freedom of speech violation claim.

Further, Follies failed to successfully assert the impairment of contract claim, as related to the agreement it signed with DeKalb County. To establish impairment of contract the court has to make determinations on three components: “whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.” Follies failed to show that there was a valid contract here, as Chamblee was not a party to its agreement with DeKalb County and specifically rejected the position that being an independently incorporated entity it was still bound by the terms of the agreement Follies had with the county.

Finally, Follies failed to show that its equal protection rights were violated. It failed to show a discriminatory intent of the ordinances, and also could not show Chamblee’s differential treatment when it denied Follies’ applications for an alcohol license. Follies failed to show that a bowling center which it cited as a comparator was indeed similarly situated, since Follies was categorically prohibited from obtaining an alcohol license in its capacity as a strip club, unlike from the bowling center. The court thus granted Chamblee summary judgment on all counts and rejected its state law counterclaims, having refused to exercise supplemental jurisdiction over them.

WBY, Inc. v City of Chamblee, GA, 2021 WL 3005379 (ND GA 7/15/2021)

This post was authored by Olena Botshteyn, Esq.

Several homeowners (“Homeowners”) own residential properties in the City of Arlington that they have leased on a short-term basis. The influx of temporary visitors to the City caused noise disturbances, wild parties, and excessive street parking, and many residents complained. In an effort to find a balance between the interests of residents and short-term rental (“STR”) owners, in April 2019, the city council enacted the Zoning Ordinance and the STR Ordinance, which created an STR zone, where residences can be used as STRs, and imposed various regulations on STR owners and tenants. Among other things, the STR ordinance prohibited gatherings of occupants outside at the premises between 10:00 p.m. and 9:00 a.m., limited the number of occupants, imposed parking restrictions etc. Some of Homeowners’ properties are located in STR zone, and others are not. In this action, Homeowners claim violation of STR tenants’ freedom of assembly and freedom of movement rights as well as violation of Homeowners’ substantive due course of law rights and equal protection rights under the Texas Constitution. They also claim that the ordinances are the acts that exceed the City’s and the mayor’s zoning powers. The trial court denied the Homeowners’ temporary injunction request and they appealed.

When asserting the substantive-due-course-of-law rights claim, Homeowners claimed that the City’s STR limitations are not rationally related to a legitimate governmental interest. Generally, an ordinance must be “designed to accomplish an objective within the government’s police power” and be rationally related to the governmental purpose. The City argued that it passed the ordinance with the goal of safeguarding the life, health and safety of the neighborhoods and presented evidence that STRs had created noise disturbances, parking congestion and extensive amount of trash in the streets. The court concluded that enaction of the ordinance served a legitimate governmental interest in reducing the negative impacts of STRs.

Further, when Homeowners argued their freedom of assembly and freedom of movement claims on behalf of STR tenants, the City argued that they lacked standing. To challenge a statute, a plaintiff “must contend that the statute unconstitutionally restricts the plaintiff’s rights, not somebody else’s.” Since Homeowners did not contend that the ordinance violates their own assembly and movement rights, the court concluded that they lacked standing to assert this claim.

Finally, when considering the equal protection claim, the court concluded that Homeowners failed to demonstrate that they were similarly situated to property owners that lease their properties long-term. The court ultimately found that the City’s decisions to restrict STRs to the STR Zone and impose certain restrictions on the operation of STRs are rationally related to objectives within the City’s police powers and affirmed the trial court’s order.

Draper v City of Arlington TX, 2021 WL 2966139 (TX App. 7/15/2021)

This post was authored by Matthew Loescher, Esq.

The Hinckley Township Board of Zoning Appeals (“BZA”) conducted a public hearing and issued a decision granting two variances in favor of applicant John Sumodi. Due to an error incorrectly stating the length of the second variance, a special meeting was conducted on August 12, 2020, and an amended decision correcting the error and granting the variance was issued. Lisa and Scott Rushworth, who live adjacent to Mr. Sumodi’s property, filed a notice of appeal from the BZA’s decision in the Medina County Court of Common Pleas. The Court of Common Pleas granted the BZA’s motion and dismissed the case for lack of jurisdiction.

On appeal, the Rushworths contended that the BZA’s decision did not become an appealable final order until they obtained a copy of the signed minutes from the July 22 meeting on September 10, 2020. The Rushworths claimed they requested the minutes to both the July 22 and August 12 meetings several times in the weeks following August 12, 2020, but were told they were waiting to be processed and were thus unavailable. The Rushworths further alleged that they did not receive a signed copy of the July 22 meeting minutes until September 10, 2020. Nevertheless, from the 30-day period from August 12, 2020, the Rushworths had through September 11, 2020, to perfect their appeal in accordance with R.C. 2505.07. Since they failed to do so, the appeal was not perfected and the Court of Common Pleas correctly determined that it was without jurisdiction to hear the appeal.

Next, while the Rushworths contended they were deprived of time to prepare for the meeting on August 12, 2020, they failed to show that the alleged late notice had prejudiced them in any way. The minutes of the August 12, 2020, special meeting indicated that the purpose of the meeting was to correct an error made in granting the variance during the July 22, 2020, meeting. Chairperson Calabro stated: “we are not here this evening to discuss the reasons to grant or not grant this variance. This was already done at the public hearing of July 22, 2020. We will not be repeating the same information.” Accordingly, the dismissal of the Rushworths’ claims was affirmed.

Rushworth v Board of Zoning Appeals, Hinckley Township, 2021 WL 2694868 (OH App. 6/30/2021)

This post was authored by Olena Botshteyn, Esq.

Anne Veilleux and Charles Williams (“Owners”) own a parcel in the town of Hull (“Town”). The parcel comprises two adjacent lots (“Lot 2” and “Lot 3A”) with a private way (“Way 1”) running to the north alongside the borders of both lots. To the south, the Lot 3A borders the property of Don Perry and a private way (“Way 2”) running from east to west, intersecting Way 1 and terminating in the middle of it. It was previously established that the Way 2 length along the Lot 3A is sixty-nine feet, and in this case against the Town and the Owners Perry argues that the Owners are not entitled to build a house on their property, because their parcel’s frontage on Way 2 does not satisfy the seventy-five-foot requirement of the bylaw. Owners argue that they satisfy the requirement, as the frontage length shall include the part of Way 2 intersecting Way 1. In other words, Way 2 borders the parcel from two sides and both sides shall be counted to satisfy the frontage requirement. The Land Court agreed with the Owners and affirmed the ZBA decision, allowing the Owners to build a house on their property. Perry appealed.

The bylaw defines that the ends of incomplete streets shall not be counted towards lot frontage. When deciding that the incomplete street exception shall not apply here, both the ZBA and the Land Court distinguished between “private ways” and “streets” and concluded that the exception shall apply to streets only. The Way 2 is a private way and not a street. On appeal, Perry argued that the bylaw uses the terms “way” and “street” interchangeably, and while the court agreed that in certain instances that is true, the court concluded that when it comes to the “incomplete streets exception” the bylaw refers specifically only to streets and does not include ways.

Perry further argued that since the bylaw requires seventy-five feet of “frontage in linear feet” and the parcel’s border is not in a straight line, it does not meet the requirement. The court disagreed, stating that “measuring something in “linear feet” merely means that the size of something is measured without reference to its other dimensions, such as width or height.” The court rejected other arguments and affirmed the decision of the Land Court.

Perry v Zoning Board of Appeals of Hull, 2021 WL 2932855 (MA App. 7/13/2021)

This post was authored by Matthew Loescher, Esq.

Following the DeKalb County Board of Commissioners’ decision to deny Appellant Nancy Gastel’s request for a variance and to rezone her DeKalb County property, Gastel sued both the Board and the County. Appellant sought declaratory and injunctive relief, and she asserted various constitutional claims, including a purported takings claim and a Section 1983 claim. The trial court granted Appellees’ motion to dismiss, characterizing Appellant’s lawsuit as an improper “mandamus action.”

Here, neither Appellant’s complaint nor the amended complaint made any mention of mandamus relief. While the record did not include a transcript of the hearing on Appellees’ motion to dismiss, there was no indication in the record or in the trial court’s order. Furthermore, there was no argument by Appellees that Appellant somehow amended or recast her complaint during that hearing. As the trial court’s ruling was based solely on the mischaracterization of Appellant’s claims, the court did not need to consider the claims actually raised in Appellant’s complaint. The judgment of the trial court was reversed, and the case was remanded for further proceedings.

Gastel v Dekalb County, 2021 WL 2701417 (GA. App. 7/1/2021)