This summary was contributed by Knauf Shaw

The City of Ithaca Fire Chief was also chair of the NYSDOS Syracuse Regional Board of Review. He informed a developer of a student housing development in Ithaca that it would require a variance from the Board for the uniform fire code. Though he recused himself from the review of that application before the Board, he presented in favor of that application at the hearing. The Court annulled the grant of a variance because the Fire Chief’s participation in the hearing gave the appearance of impropriety.

Grout v. NYSDOS, Supreme Court Onondaga County, Index No. 009764/2019 (4/17/2020)

 

This post was contributed by Knauf Shaw

Prospective developer of a waste to energy facility challenged an amendment to zoning ordinance which prohibited the proposed project. Though the Town did refer the proposed amendment to County Planning, it subsequently amended the ordinance and did not resubmit the language to County Planning. The Court annulled the legislation, finding that, because “the changes literally added matters of substance to the zoning ordinance,” “a new referral under GML § 239-m was required.”

Circular EnerG v. Town of Romulus, Supreme Court Seneca County, Index Number 20180124 (5/15/2020)

 

This summary was contributed by Knauf Shaw

 

Citizen group challenging a greenhouse development sought to appeal determination of zoning compliance to ZBA ahead of Planning Board hearing on site plan approval. Town attorney refused to hear appeal on basis that no appealable decision had been made. Court annulled all approvals and remanded to ZBA, finding that a determination of zoning compliance was a determination subject to ZBA appeal, and that a planning board was not empowered to determine zoning compliance.

Webster Citizens for Appropriate Land Use v. Town of Webster, Supreme Court Monroe County, Index Number E2019011898 (5/18/2020)

 

This post was contributed by Knauf Shaw

A Neighbor group opposed redevelopment of divinity school campus in the City of Rochester into mixed use project. The Court found that lead agency took the appropriate hard look in issuing negative declaration, and that this decision was not arbitrarily contrary to a decision involving a nearby parcel which resulted in a positive declaration. That parcel was new development of undeveloped land, whereas the project at issue in this case was redevelopment and reuse of already developed land. Spot zoning claim related to rezoning for project failed to satisfy reasonable doubt standard.

Colgate Neighbors v. City of Rochester, Supreme Court Monroe County, Index Number E2019008556 (5/12/2020)

This post was authored by Matthew Loescher, Esq.

Hummingbird Storage, LLC, appealed an order dismissing its action for certiorari review of the decision of the City of Milwaukee’s Board of Zoning Appeals (“BOZA”), which allowed a use variance for a self-service storage facility (“Morgan Avenue property”), owned by Acquisition B, in the City. In this case, Hummingbird claimed that the trial court erred as a matter of law by granting BOZA and Acquisition B’s motion to dismiss the action based on Hummingbird’s lack of standing to challenge BOZA’s decision. 

On appeal, Hummingbird first contended that the allegations of the complaint prove that it is both a person aggrieved and a taxpayer that will sustain pecuniary losses. Conversely, Acquisition B contended that the term taxpayer should be construed “to be similar to the definition of” a person aggrieved in the same statute. Acquisition B further argued that a taxpayer may only appeal if he or she has sustained a loss or has been negatively impacted by a BOZA decision, and that a taxpayer appealing a BOZA decision would have standing for the same reason as would a plaintiff in a taxpayer’s action. As Hummingbird failed to address Acquisition B’s arguments, the court found Hummingbird had conceded that its allegations did not establish its standing under § 62.23(7)(e)10., either as an aggrieved person or as a taxpayer.

Hummingbird next alleged it had an independent basis for standing based on its claim that BOZA’s grant of the use variance violated the City’s comprehensive plan for the area where the Morgan Avenue property was located. The BOZA contended that WIS. STAT. § 62.23(7)(e)10. unambiguously created two categories of individuals with standing to seek review of a BOZA decision – aggrieved persons and taxpayers – and that Hummingbird failed to explain why the court should interpret § 62.23(7)(e)10. as creating a third basis for standing. As Hummingbird did not address BOZA’s arguments in its reply brief, and failed to address Acquisition B’s argument that it cited no supporting authority, the court found that Hummingbird conceded those arguments. As such, the court affirmed the trial court’s order dismissing Hummingbird’s action based on its lack of standing. 

Hummingbird Storage, LLC v City of Milwaukee Zoning Board of Appeals, 2020 WL 2391103 (WI App. 5/12/2020)

This post was authored by Matthew Loescher, Esq.

A property owner applied to the City of Phoenix for a permit and zoning variances to allow a medical marijuana dispensary on the property. Numerous neighbors objected, including the appellants. On April 5, 2018, the Board of Adjustment overturned the Zoning Administrator’s decision denying the application and approved the permit and variances. On April 30, the appellants requested that the Board reconsider its decision based on manifest error. The Board next met on May 3, and documented the request for reconsideration in the minutes of that meeting but noted: “No motion to reconsider was made by a Board member; previous BOA decision stands.” On May 31, the appellants filed a special action in the superior court. The Superior Court granted the motion to dismiss, concluding that the statutory review period began to run on April 5. 

At the outset the court acknowledged that § 9-462.06(K) and Zoning Ordinances § 303(C)(4) contemplated that unspecified “proceedings on the decision sought to be reviewed” may continue while a special action is pending in the superior court: Specifically, it found that “Filing the complaint does not stay proceedings on the decision sought to be reviewed, but the court may, on application, grant a stay.” However, the court determined that the possibility of “proceedings”—which could refer to legal proceedings or conduct undertaken pursuant to legal decisions—that could proceed at the same time as judicial review, did not necessarily mean there was a legislative intent that agency reconsideration and judicial review must be concurrent. Thus, the court held that pursuant to § 9-462.06, appellants had thirty days from the Board’s May 3 meeting to file their petition in the superior court. As the petition was filed within that period, the Superior Court had jurisdiction. 

Houser v City of Phoenix, 463 P. 3d 232 (AZ app. 4/9/2020)

 

This post was authored by Matthew Loescher, Esq.

House Recovery Residence, Inc. and its founder, Kevin Weikum, brought discrimination claims under the brought under both the Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“ADA”) against Cobb County, Georgia. Before 2010, recovery residences in Cobb County were considered halfway houses and could not qualify as group homes. After 2010, the subject Ordinance allowed recovery residences to qualify as group homes where the relevant conditions of the County’s zoning ordinance were met. The parties filed cross-motions for summary judgment, and the district court denied His House’s motion for summary judgement and denied in part and granted in part summary judgment in favor of the County.

On appeal, His House contended that the district court erred when it granted summary judgment on its disparate treatment claim, as it had presented both direct and circumstantial evidence of disparate treatment sufficient to survive summary judgment. The court rejected this contention, finding His House failed to provide sufficient evidence that the County treated them differently from similarly situated non-disabled citizens. Additionally, the mere fact that the Ordinance was amended as a result of a complaint by an advocacy group did not demonstrate that His House had been treated differently than similarly situated non-recovering people or that there was discriminatory intent behind the amendment. Moreover, His House failed to provide evidence that the “members of the Board were aware of the motivations of the private citizens” or that, despite these motivations, the Board was not justified in denying the Temporary Land Use Permit (“TLUP”).

His House lastly claimed that the Ordinance was facially discriminatory. This claim was also denied as the Ordinance did not, on its face, treat recovering individuals any differently than non-recovering individuals. Specifically, none of the Ordinance’s provisions distinguished based on the presence of disability. Here, the limitation on the number of residents applied to all group homes, as did the requirement that group homes have a resident caregiver, the provision allowing review of the schedule of activities by periodic inspections, and the prohibition against persons on parole or on probation. The judgement of the district court was therefore affirmed.

His House Recovery Residence, Inc v Cobb County, GA, 806 Fed. Appx 780 (11th Cir. CA 3/26/2020)

This post was authored by Matthew Loescher, Esq.

Hodne Homes, LLC purchased a lot in Lake County to build a facility to store and display boats. After the purchase, Hodne Homes sought a variance and conditional-use permit (“CUP”) from the Lake County Board of Adjustment, as the proposed facility exceeded the setback and size restrictions for the lot under the Lake County Zoning Ordinance. The Board approved both requests over the objection of Karen Dunham, an adjoining landowner. Dunham then petitioned the circuit court for a writ of certiorari challenging the Board’s decision. Hodne Homes was joined as an indispensable party to the certiorari proceedings. Following a hearing, the court denied the writ of certiorari. In this case, Dunham appealed that decision.

Dunham first argued that the Board was not authorized to grant the variance sought by Hodne Homes to relax the setback requirements. Section 505 authorized the Board to relax the lot setback requirements. Here, the Board found that the variance “would not be injurious to the neighborhood or detrimental to the public welfare.” Nevertheless, the Board failed to consider the second prong requiring the existence of special conditions to grant a variance. The record reflected that the Board only made a terse finding that special conditions existed on the property, but failed to meaningfully address the special conditions required by Section 505 for the Board to have authority to grant a variance. As such, the court reversed the circuit court’s denial of certiorari relief to Dunham on the Board’s decision granting a variance to Hodne Homes.

Dunham next challenged the Board’s decision to grant Hodne Homes’ application for a CUP allowing the construction of an oversized facility on Lot 1. In granting the CUP, the Board determined the oversized facility would not be detrimental to other uses and would be in the general character of uses in LP-3. Additionally, the Board made findings pursuant to Section 504, which required the Board, before granting a CUP, to find the “granting of the conditional use will not adversely affect the public interest.” Thus, Dunham failed to establish that the Board exceeded its authority by granting the CUP for the construction of an oversized storage facility on Lot 1.

Lastly, Dunham contended that Section 1105 – which allowed for a CUP that was “not detrimental to other uses and is in the general character of the other uses in the LP-3 district” – created ambiguity and left the determination to the arbitrary opinion of the Board in each instance. The court found that Section 504 of the Ordinance set forth a detailed list of specific criteria the Board must consider before granting a CUP, in addition to the considerations in Section 1105. Here, the Board made findings on the considerations in Section 504 before granting the CUP. Accordingly, Dunham failed to show that the criteria for granting a CUP under the Ordinance was vague, or otherwise arbitrary, capricious, or unconstitutional.

 Dunham v Lake County Commission, 943 N.W. 2d 330 (N.D. 4/29/2020)

 

This post is republished with permission from the Rocky Mountain Sign Law Blog.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs.

In a relatively short order, the district court found that the Billboard Act was unconstitutional, both facially and as applied.  Although the court relied on Thomas v. Bright, a recent Sixth Circuit decision that invalidated the Tennessee Billboard Act as applied to noncommercial speech, it still found that the on-premises/off-premises distinction failed intermediate scrutiny.  The court observed that the Lion’s Den billboard did not interfere with aesthetics or traffic safety along I-65, and certainly not in a manner worse than an on-premises sign of the same nature would have.  Because the state failed to provide evidence supporting its arguments that off-premises billboards more seriously injure the state’s interests in aesthetics and traffic safety, the court found the Act unconstitutional.

The court further refused to sever the unconstitutional portions of the law from the remainder of the law, instead choosing to invalidate the entire Kentucky Billboard Act, reasoning that the state would not have enacted the law without the unconstitutional portion.

The decision in this case was issued by Judge Justin Walker, the same judge that recently invalidated Louisville’s ban on religious gatherings during the COVID-19 crisis.  Judge Walker received some media fame when he was nominated for his current seat, as the American Bar Association rated him unqualified due to his age (he is 37) and relative inexperience.  He has now been nominated by President Trump to the federal appeals court of the District of Columbia Circuit.  The results of these cases suggest that Judge Walker takes a strict view of First Amendment liberties, as this case further chips away at commercial speech restrictions.

L.D. Mgmt. Co. v. Thomas, ___ F. Supp. 3d ___, 2020 WL 1978387 (W.D. Ky. Apr. 24, 2020).

This post is republished with permission from Ancel Glick’s Municipal Minute Blog

In Evans v. City of Joliet, four individuals brought a motion for a temporary restraining order (TRO) and preliminary injunction on Monday asking a judge to issue a TRO against the City to stop it from conducting a meeting on a proposed annexation relating to a controversial warehouse, distribution, and manufacturing development called NorthPoint.

Plaintiffs made two arguments in their TRO motion. First, they claimed that the meeting was not “necessary” under the Governor’s Executive Orders, including the Governor’s stay at home order and the Governor’s order allowing remote meetings of government bodies. Plaintiffs argue that there is no indication that the City will be harmed if the vote on the annexation is postponed until an “open” meeting can be held. Second, they claimed that the proposed remote meeting did not comply with the OMA requirement that meetings be “reasonably accessible.” Specifically, plaintiffs argued that some residents may not have access to cable TV or the Internet to be able to watch the meeting. Plaintiffs argued that the City should have gone further in providing technical assistance to residentsit is  in how to attend the meeting and should have provided a phone number to answer questions and assist residents, or alternatively, should have made accommodations for residents to attend the meeting in person.

The motion was filed on Monday morning, and the Court held a hearing by conference call on Monday afternoon. The Court first determined that the issue of whether a meeting is necessary or not is up to the City and its elected officials, and not the Court, to decide. Second, the Court determined that the City had provided a “reasonable opportunity to participate” to members of the public by announcing the meeting five days in advance, permitting the public to comment by telephone and email, streaming the meeting live on the City’s website and on public access television, and recording the meeting and making it available on the City’s website after the meeting. The Court noted that a very small segment of the population may not have access to the Internet or cable TV but that did not make the City’s meeting illegal.

In sum, the Court did not find a violation of the OMA and denied the request for a TRO to stop the meeting.