This post was authored by Matthew Loescher, Esq.

Property owner, Mr. May initiated declaratory judgment action, which sought to have the discriminatory restrictive covenant governing his property, stating that “no race or nationality other than the white race shall use or occupy any building on any lot,” declared void, striking that same subsection from public record, and eliminating it from the title of the property. The Superior Court denied May’s summary judgment motion, holding that RCW 49.60.227 did not oblige county auditors to physically remove void provisions from the public record.

The related provision RCW 49.60.227(2) set forth an alternate procedure whereby a property owner can avoid going to court to void a discriminatory provision in a recorded instrument. While Mr. May conceded that subsection (2) contemplated that a remedial document would be self-executing, he nevertheless argued subsection (1) must have a different meaning or the two provisions would be redundant. According to Mr. May, the difference between subsections (1) and (2) was that subsection (1) provided a broader remedy that actually involved physically altering existing records.

The court found that RCW 49.60.227 plainly contemplated that a court order striking a voided provision in a recorded instrument was self-executing. It reasoned that this conclusion was consistent with existing practices of how corrections are made to property records, as set forth in the trial court declaration of the Spokane County auditor, Vicky Dalton. Despite this, the court concluded that a policy of whitewashing public records and erasing historical evidence of racism would be dangerous. Thus, while the order should be included as part of the official property record, there was no additional need to physically alter existing records.

May v Spokane County, 481 P. 3d 1098 (2/23/2021)

This post was authored by Olena Botshteyn, Esq.

The Supreme Court concluded that the board of adjustment of Cerro Gordo county illegally granted an area variance for construction of a pergola in violation of setback requirements. The court vacated the judgment of the court of appeals and reversed the judgment of the district court, which previously made a distinction between the requirements for an area variance and a use variance, determined that a lesser showing was required for an area variance, and concluded that the variance was legal.

Sauls own a property located in a district zoned as R-3, single family residential district, in Cerro Gordo County, Iowa. The county ordinance requires to avoid construction in this district within a six-foot setback of property lines. Unaware of this requirement, Sauls constructed a pergola and a patio, which had a twenty-one inches setback. Property owners were then notified by the local planning and zoning administrator that their construction violated the zoning ordinance. Following these events, Sauls applied for a variance. The variance application form required an explanation of unnecessary hardship, which would be suffered if the variance was not granted. Sauls failed to provide the proper evidence of such hardship, as they did not provide the reasons why the property without a pergola cannot yield a reasonable use, what is unique about their property and merely stated that the pergola is a great use of space and would shade the front yard, which would allow to save energy. At the public hearing for a variance, the applicants did not provide any additional evidence of the unnecessary hardship, and although it was noted that there was no walking space between the patio and the neighboring fence, there were no complaints from the neighbors. Two of the board members concluded that a pergola was a nice addition to the neighborhood and granted a variance. The owner of the neighboring property then challenged the board’s action, the district court concluded that the board’s determination was legal and the court of appeals affirmed. The Supreme Court then reviewed for the correction of legal error.

The court concluded that the court of appeals erred in determining that standards for granting an area and use variance differed. When making its judgment, the court of appeals relied on Christenson case. This case explained the difference between two uses and stated that a lesser showing for an area variance is required, as an area variance does not involve a use prohibited by an ordinance, but is rather a deviation from certain requirements (such as setback requirements). Having stated that an area variance traditionally requires “a slightly lesser showing”, Christenson however did not adopt a proper standard.

The court then concluded that a Deardorf standard, which was mirrored in the county zoning ordinance shall be strictly applied here. By stating so, the court referred to legal academia, and particularly to Williams Hines, the former dean of the Iowa College of Law, who stated that regardless of different purposes of the area and use variance, “two-thirds of U.S. states, including Iowa, apply the same strict requirements for granting them both”. The court also referred to the relevant case law and determined that Deardorf standard was consistently applied in the past. Pursuant to this standard, it must be shown that if the variance is not granted, a land cannot “yield a reasonable return”, that the land is unique, and that the use “will not alter the essential character of the locality”. The court concluded that Sauls failed to meet this standard, as they did not provide sufficient evidence for either factor. They did not fully fill out the application form; moreover, the planning and zoning administrator submitted a letter to the board stating that prohibiting the pergola would not cause a hardship, as there was an existing reasonable use of the property. Further, the court concluded that their will to shade the property was not a unique circumstance distinct from general conditions in the neighborhood. The court thus determined that the board of adjustment acted illegally in granting the Sauls’ application for a variance, and reversed. 

Earley v Board of Adjustment of Cerro Gordo County, 2021 WL 744513 (IA 2/26/20201)

https://www.planetizen.com/node/112396?utm_source=newswire&utm_medium=email&utm_campaign=news-02252021&mc_cid=c3b203ffe6&mc_eid=kyxWseu4h6

The Berkeley City Council voted unanimously this week to eliminating single family zoning, citing its historical use as a form of exclusionary zoning. See also, Berkeley to eliminate single-family zoning, cites racist ties (mercurynews.com)

This post was authored by Olena Botshteyn, Esq.

UJ-Eighty sought judicial review under the state and federal constitutions, arguing that Bloomington improperly granted its legislative authority to Indiana University (IU), when it allowed IU to define fraternities and sororities. The trial court concluded there was violation of constitutions and the appellate court affirmed. The Supreme Court reversed the decision, concluding that there was no improper delegation of authority to the IU by the town of Bloomington, as the town merely defined fraternities and sororities in its zoning law based on their relationship with IU. The court concluded that this cannot be viewed as an impermissible delegation of legislative power, and thus, there were no constitutional violations.

In 2002, UJ-Eighty purchased the property, located in Bloomington’s zoning district with a limited residential use. One of the permitted residential uses in this district is a fraternity or sorority house. At the time of purchase, Bloomington zoning Ordinance defined a fraternity or sorority house as a “building or portion thereof … for groups of unmarried students in attendance at an educational institution.” The Ordinance was amended later on to require for such students to be enrolled at IU and be recognized by IU as being members of a fraternity or sorority. In February 2018, IU revoked its recognition of Tau Kappa Epsilon, Inc. (TKE), a fraternity that occupied the building, owned by UJ-Eighty. While most of its members vacated the property, two remained. Bloomington further mailed a Notice of Violation to UJ-Eighty, stating that UJ-Eighty engaged in an illegal land use. UJ-Eighty further sought judicial review and argued that Bloomington unlawfully delegated zoning authority to IU, when it allowed IU to define fraternities and sororities.

First, the court concluded that Bloomington did not delegate its legislative authority IU and thus, did not violate Indiana Constitution. According to the Indiana Constitution, “no one can modify or change the law except the legislature”. Bloomington was the sole entity that enacted the Ordinance, defining permitted uses and zoning districts. While the Ordinance did provide a definition of “fraternity” and “sorority”, such definitions were similar to others that referenced an outside entity, similar to IU. In summation, the court stated that nothing indicates that the legislative power was granted to IU here.

Further, the court concluded that Bloomington did not deprive UJ-Eighty of due process and thus, did not violate US Constitution. While proving their argument, UJ-Eighty referred to cases, where the landowners were required to obtain their neighbors’ consent to use their land. Here, UJ-Eighty never had to seek IU’s consent to use its land. IU had no direct power to prohibit UJ-Eighty from lawfully using its land. Instead, IU has power to regulate the status of fraternities and sororities, however, this power comes from its General Assembly, and not from Bloomington. “IU’s decision to recognize or sanction a fraternity may have had “collateral effects” on land use in Bloomington”, but such a decision cannot be viewed as a delegation of legislative power.

City of Bloomington Board of Zoning Appeals v UJ-Eighty Corporation, 2021 WL 717972 (IN 2/23/2021)

This post was authored by Olena Botshteyn, Esq.

Intervenors’ residence is located in the rural residential district of the town of Madison. The current structure is not in conformance with the setback requirements of the district. With respect to the preexisting nonconforming uses and structures, the zoning ordinance provides that such structures may be expanded in size subject to certain conditions. One of the conditions is a limitation on expansion to a “total of fifty-percent (50%) of the square foot area of the first floor footprint of the existing structure”. Another condition requires the expanded structure be “no taller above sea level than the highest roofline of the existing structure”. In 2009, the prior owners of the property sought and obtained a variance from the ordinance’s height requirement to add a second story to the existing structure. The variance was not realized, however, it never expired. Intervenors were planning to demolish the existing structure and construct a new structure in its place. When doing so, they relied on the 2009 variance. In this case, plaintiffs who own an abutting property argue that intervenors’ proposed expansion of property violates the conditions of the variance and the ordinance’s “50% limitation.”

First, the court concluded that the proposed new structure is not in full conformance with the variance. The variance allowed the height of construction to be 513.92 feet above sea level, and the proposed structure was in conformance with such a requirement. However, the variance further required that “[t]he existing footprint shall not expand laterally.” The town argued that this was not a condition of approval, since this statement simply referred to the fact that the prior owners sought to expand the structure only vertically. The court concluded that since the variance expressly states that the grant is “subject to … conditions,” prohibition of lateral expansion of the existing footprint shall be viewed as condition. The court further stated that since the proposed structure expanded the footprint, such construction would be in violation of the variance and interveners cannot rely on it.

With regard to the 50% limitation requirement, the court concluded that the proposed structure is not in compliance with it. While the Town argued that this provision applies only to horizontal expansions, the court interpreted this provision differently, referring to the context, and decided that 50% limitation applies both to horizontal and vertical expansions of structures. Thus, the court concluded that an expansion of 4,546 square feet over the existing building would be beyond the 50% limitation, as the existing one-story structure is 2,310 square feet and the allowed expansion is 1,155 square feet.

The New Hampshire Supreme Court reversed the decision of the trial court, concluding that the intervenors’ proposed structure was not in conformance with the conditions of pre-existing variance and with the square-footage limitation defined in the zoning ordinance.

Connolly v Town of Madison, 2021 WL 688667 (NH 2/23/2021)

This post was authored by Matthew Loescher, Esq.

In 2017, Zeus Land Holdings LLC acquired a lot in a subdivision located in Salt Lake County, Utah, and conveyed that lot to Jupiter Land 1 LLC. Since the subdivision’s inception, its lots have been subject to a set of restrictive covenants (“CC&Rs”). Despite opposition from many of its neighbors, a lot owner subdivided its lot into two smaller lots. After the lot owner completed its subdivision, some of the neighbors sued, claiming that the subdivision violated restrictive covenants applicable to the property. The district court entered summary judgment in favor of the lot owner, holding that the subdivision did not violate the restrictive covenants.

At the outset, the court noted that a landowner’s knowledge that its neighbors oppose its actions, or that they “may even decide to amend the applicable covenants at some unknown time in the future,” did not qualify as “actual notice of a legally-cognizable prior interest in real property.” Here, the record reflected that the 1978 amendment— which lowered the minimum resubdivided lot size to 8,000 square feet—was operative at the time Owner re-subdivided its lot. As there was no valid basis for Neighbors’ objections to Owner’s resubdivision under the governing CC&Rs, the court held the release of the lis pendens was warranted.

Walker v Zeus Land Holdings, LLC, 2021 UT App. 9 (2/4/2021)

This post was authored by Olena Botshteyn, Esq.

Crown Castle, a telecommunications services provider, filed applications to install and operate its facilities in public rights-of-way in the city of Charleston (“City”), South Carolina. In its operations, Crown Castle uses fiber optic lines and equipment called “Nodes” or “small cells”. When authorizing such projects, the City requires to obtain an engineering permit from the Department of Public Service, which is issued subject to recommendations of the Design Review Committee (“DRC”).

In the previous case before this court Crown Castle argued that the City refused to process Crown Castle’s permit applications. In June 2018, the parties entered into mediation and reached a memorandum of understanding, subject to which the City was to enact a small cell ordinance (“the Ordinance”). In September 2018, the Federal Communications Commission (“FCC”) issued a declaratory ruling with regard to wireless services. In November the City adopted the Ordinance and design guidelines for small cells infrastructure. Crown Castle further notified the City that in its view the Ordinance was contrary to the FCC’s declaratory ruling.

In May 2019, Crown Castle filed an amended complaint, arguing that the City effectively prohibited Crown Castle from providing telecommunications services when it adopted the Ordinance, and that the City failed to act in a timely manner on Crown Castle’s sixteen applications. On March 23, 2020 the court granted summary judgment in favor of Crown Castle and directed the City to act on its applications within 90 days. The City acted on them on June 22, 2020. Crown Castle then sought judicial action with respect to seven of those applications, four of which were denied and three of which were conditionally granted.

The two issues this court considered when providing this summary judgment was whether the City’s denials of Crown Castle’s applications were supported by substantial evidence and whether the City acted on three of the conditionally granted applications in a timely manner.

1. Court refused to grant summary judgement with regard to denied applications

The court followed a two-prong inquiry process and first looked to the applicable zoning ordinance and then determined whether substantial evidence supports the denial.

Crown Castle argued that the way the City reached its decision was not conforming with the local law, as the mayor unilaterally made the decision. The court stated that it is authorized only to determine whether the reasons for making a decision are supported by local law, and may not decide whether it was made by an appropriate authority. Furthermore, in the previous case the court stated that DRC acts as an advisory body to the mayor and it is implied that mayoral approval is ultimately required for such projects.

Crown Castle further argued that when making its decision, the authority relied on broad statements of purposes and goals, set forth in the Ordinance. The City specifically stated that the proposed tower is not consistent with design review guidelines and does not integrate with the surrounding historical area. Petitioner claimed that the authority should rely on substantive provisions instead of those containing the background and purposes, including the impact on the City’s aesthetics, and the court disagreed.

The court concluded that “aesthetic and preservationist concerns lie at the heart of each of the City’s denials. Both the Small Cell Ordinance and the Design Guidelines explicitly authorize the DRC to engage with such considerations in considering an application.” The court further stated that the legislative intent of the Telecommunications Act of 1996 (“TCA”), which regulates this issue was “to ensure the preservation of local authority over the decision to erect and modify wireless facilities”. It thus found that the City was authorized to deny applications on such grounds under local law.

The court further found that the City’s decisions were supported by substantial evidence. The court reviewed the photo simulations and determined that they “provide clear evidence for the aesthetic concerns expressed in each of the City’s denial letters” and stated that there is clear evidence of visual impact of the towers.

• The Court granted summary judgment with regard to conditionally granted applications

The City conditionally granted three of the Crown Castle’s applications, subject to entering into “pole-use agreements” with the City. Crown Castle further provided the City with a copy of a draft pole-use agreement, and the City failed to respond. Crown Castle argues that the City failed to take final action on these applications within reasonable time.

The court agreed that although the City granted applications within the 90 days as prescribed by the court order, it failed to timely negotiate the pole-use agreement. The court thus considered it reasonable to order the City to act on the proposed pole-use agreement within 30 days.

Crown Castle Fiber, LLC v City of Charleston, 2021 WL 538148 (D. SC 2/15/2021)

This post was authored by Olena Botshteyn, Esq.

The town of Pelican (“Township”) blocked the proposed animal feeding operation project, as it determined that the project was not compliant with the setback requirements. The court of appeals determined that the Township erred in applying the law and remanded to the Township to reconsider the petition.

Grand Prairie Agriculture, LLP (“GP”) proposed an animal feeding operation project in an agricultural district to the Township and asked it to determine whether this project would be in compliance with the zoning provisions of the town. After considering GP’s petition at the meeting, the Township determined that the project would not be compliant with the setback requirements, stating that the campground was located within the setbacks of the proposed facility. The Township stated that pursuant to its zoning code, the setback requirement is 3/4 mile or 1/2 mile pursuant to the state zoning regulations, while the distance between the campground and the proposed facility is 1340 feet. The district court affirmed the Township’s decision. GP further appealed, arguing that the Township misinterpreted and misapplied the law by using the campground to measure the setbacks.

On appeal, the court concluded that the Township indeed erred in using the campground as a measurement point. Pursuant to state law, townships are allowed to impose setbacks measured from the “nearest occupied residence, the nearest buildings used for nonfarm or nonranch purposes, or the nearest land zoned for residential, recreational, or commercial purposes”, and the court agreed with the petitioner that the campground belongs to neither of these classifications. Although the primary purpose of a campground is recreational use, it is located in the land zoned as agricultural, and thus, the setbacks shall not be measured from it. Having concluded that the Township misinterpreted and misapplied the law, the court remanded to the Township to reconsider Grand Prairie’s petition for an animal feeding operation project.

Grand Prairie Agriculture, LLP v Pelican Township Board of Supervisors, 2021 WL 630804 (ND 2/18/2021)

This post was authored by Matthew Loescher, Esq.

Deuel Harvest Wind Energy, LLC and Deuel Harvest Wind Energy South, LLC applied for special exception permits (“SEP”) from the Deuel County Board of Adjustment to develop two wind energy systems (“WES”) in Deuel County. Despite several residents of Deuel County and neighboring counties objecting, the Board unanimously approved the permits. Appellees petitioned the circuit court for writ of certiorari challenging the SEPs, including a claim that several members of the Board had interests or biases which disqualified them from considering the SEPs. The circuit court determined that two Board members had disqualifying interests and invalidated their votes. The court then reversed the decision of the Board granting the SEPs, and Deuel Harvest appealed.

On appeal, Deuel Harvest first argued that none of the Board members had a direct pecuniary interest in the WESs at the time of the hearing, as required by SDCL 6-1-17, and the Board made no collective determination that any member had an “identifiable” conflict of interest. As such, Deuel Harvest posited there was no basis to disqualify any Board member. Appellees responded that the circuit court properly disqualified DeBoer and Dahl, but the disqualification should have been made under due process standards rather than SDCL 6-1-17. Appellees further claimed that Kanengieter and Brandt were subject to disqualification under SDCL 6-1-21 and the Due Process Clause.

The record reflected that at the start of the hearing each Board member stated his subjective belief that he could act fairly in the consideration of the SEPs, and there was no determination by the Board that any individual Board member had a conflict of interest. Additionally, there was no showing that any member of the Board had a direct pecuniary interest in the Deuel Harvest SEP applications. Thus, the standard in SDCL 6-1-17 did not support disqualification of any of the Board members in this instance. Furthermore, while Brandt’s business interests in Supreme Pork raised some possibility that he could potentially benefit financially from the Deuel Harvest projects, the court found the presumption of fairness under SDCL 6-1-21 could not be rebutted by the mere possibility that his business may indirectly receive business in the future because of the Deuel County projects. The court further found that Kanengieter’s prior advocacy for wind energy in Deuel County, and his prior opposition to more stringent ordinance requirements for WESs, were insufficient to rebut the presumption of objectivity under SDCL 6-1-21. Accordingly, the court held that the circuit court properly determined Appellees failed to establish Kanengieter and Brandt should have been disqualified.

Appellees next contended that the court did not consider all the evidence of bias set forth in the depositions, such as: the relationship of DeBoer’s brothers with Deuel Harvest; Kanengieter’s existing wind agreements with other wind developers and prior advocacy for wind development in Deuel County; and Brandt’s agreements with other wind developers and ownership interest in a company that has previously done substantial business with a wind turbine manufacturer. The court found that there was no question that several Board members supported wind energy development in Deuel County and have financially benefitted from its development. Nevertheless, Appellees failed to present clear and convincing evidence that any of these other interests would be enhanced or detrimentally impacted by the approval of the SEPs or otherwise “demonstrate prejudice or unacceptable risk of bias” in the Board’s consideration of Deuel Harvest’s SEP applications. The court therefore held that the circuit court erred in disqualifying DeBoer and Dahl from voting on the SEPs.

As a final matter, the court upheld the circuit court’s finding that the Board’s interpretation of the term “business” was not erroneous or inconsistent with the purpose of the Ordinance: to avoid the placement of wind turbines in close proximity to non-participating businesses and residences. Specifically, there was no language in the Ordinance suggesting that the setback requirements were aimed at rural locations where individuals do not regularly live or work; in fact, the Ordinance’s exclusion of “agricultural uses” from of the definition of a business suggested the opposite. Thus, the Board’s decision to exclude unimproved land from the definition of a “business” was not erroneous because this interpretation was consistent with the provisions of the Ordinance and the purposes of the setback requirements.

Holburn v Deuel County Board of Adjustment, 2021 WL 501343 (SD 2/10/2021)

This post was authored by Matthew Loescher, Esq. 

Fairfield Commons owned an approximately 3.6 acre parcel of property known as 1125 Kings Highway in Fairfield. The plaintiff was an abutting landowner. In 2006, Fairfield Commons filed an application for a special permit to construct a 36,000 square foot retail building on the property. Fairfield Commons also submitted an application for a coastal site plan review. On April 11, 2006, the commission approved the special permit and the coastal site plan review. Thereafter, a nonparty to this matter appealed from the commission’s decision to the Superior Court, challenging a condition of the special permit requiring the removal of an existing billboard.

On appeal, plaintiff contended that the trial court incorrectly determined that there was no statutory authority enabling a zoning authority to restrict the duration of the special permit, which came in the form of a condition requiring the completion of development attendant to the permitted use within two years, subject to extensions. The court found that § 8-2 (a) empowers a zoning authority to impose a temporal condition on a special permit, such as by requiring the completion of development attendant to the permitted use within a set time frame. As such, the court improperly concluded that there was no statutory authority enabling a zoning authority to impose this condition.

The plaintiff next argued that the trial court improperly relied on the legal tenet that special permits ‘‘run with the land’’ in concluding that special permits, once recorded pursuant to § 8-3d, are valid indefinitely and cannot be temporally restricted. In the cases relied on by the trial court, the courts concluded that various land use permits ‘‘run with the land’’ in that they are not personal to the applicant and remain valid notwithstanding a change in the ownership of the land. Thus the court held that the trial court misapplied the legal principle that special permits ‘‘run with the land.’’

Based on the aforementioned, the judgment was reversed only with respect to the trial court’s conclusion that the special permit approval granted to Fairfield Commons, LLC had not expired, and the case was remanded with direction to render judgment sustaining the plaintiff’s appeal as to that claim.

International Investors v Town Plan and Zoning Commission of the Town of Fairfield, 2021 WL 502235 (CT App. 2/16/2021)