This post was authored by Matthew Loescher, Esq.

 

Petitioner 54 Marion Avenue, LLC owned a vacant lot in the City of Saratoga Springs, Saratoga County, in a zoning district where commercial uses were generally forbidden. Petitioner Maple Shade Corners, LLC agreed to purchase the property if it was permitted to build a nonconforming dental office on the site. This resulted in an application to respondent Zoning Board of Appeals of the City of Saratoga Springs for a use variance. The ZBA denied the application, and Petitioners commenced this CPLR article 78 proceeding and plenary action. The Supreme Court, following joinder of issue, found a rational basis in the record for the ZBA’s determination and dismissed the petition on the merits.

 

Here, although the property’s proximity to the intersection of a residential street and a thoroughfare exposed it to traffic and congestion that impacted its value, the ZBA found that these problems affected “a substantial portion of the neighborhood,” which included residences lying along the thoroughfare itself. Additionally, the record contained maps and photographs reflecting the surrounding commercial buildup and correspondence from nearby homeowners complaining about how traffic and commercialization have affected them. Based on the aforementioned, the ZBA rationally found that the development in the area did not cause a unique hardship for the property.

 

As for whether the hardship was self-created, the record reflected the property was zoned for residential use when the owner’s affiliated predecessor-in-title acquired it in 1982. The ZBA further found commercialization in nearby areas was foreseeable by then, since businesses were already present on the thoroughfare. The ZBA also noted that the owner and its related predecessors had long expressed interest in putting the property to nonconforming commercial use, which was reflected in a 1987 application for a use variance and later efforts to market the property for commercial use. As such, there was a rational basis for the ZBA to hold that the hardship was self-created.

 

54 Marion Avenue, LLC v. City of Saratoga Springs, 175 A.D.3d 1660 (3 Dept. 2019)

This post was authored by Matthew Loescher, Esq.

 

Petitioner purchased property in the City of Ithaca, Tompkins County, which consisted of a lot and house that had a preexisting side yard deficiency. Petitioner applied to subdivide the lot and create two lots; the existing house would be part of one lot and petitioner intended to construct a multifamily dwelling on the other lot. Since petitioner’s proposal required an area variance due to the side yard deficiency, petitioner submitted an application for an area variance to respondent. Following public hearings, respondent denied the application. Petitioner thereafter commenced this CPLR article 78 proceeding challenging respondent’s determination. The Supreme Court of New York granted the petition, and respondent appealed.

 

The record reflected that Respondent’s findings demonstrated that an environmental review of the proposed project concluded that there would be no significant impacts to aesthetic or historic resources, the air, land, drainage or open space area. Furthermore, petitioner’s proposed use of the property was a permitted use in the neighborhood. The findings also indicated that the City of Ithaca Planning Board was merely “unsure” whether the requested variance was consistent with the neighborhood and that it was “conflicted” about petitioner’s appeal. Because the views of the community in opposition to petitioner’s request by themselves were insufficient to deny a variance, the court held respondent’s determination lacked a rational basis.

 

209 Hudson Street, LLC v. City of Ithaca Board of Zoning Appeals, 182 A.D.3d 851( 3 Dept 2020)

 

 

This post was authored by Matthew Loescher, Esq.
In 2015, Lateef submitted an application for approval to operate a neighborhood convenience store and to obtain conditional use permits to sell tobacco products, beer and wine. On December 8, 2015, Charles Rigby, who was a sitting councilmember and the city’s mayor pro tem, sent an email to the commission’s members urging them to vote against the application. The commission denied the application, and Lateef appealed the commission’s denial to the city council, and the city council voted four to one in favor of granting Lateef’s appeal and reversing the commission’s decision to deny his application. After the roll call was taken, the city clerk stated “Motion passes 4 to 1.” The city attorney then stated, “actually it needed five-sevenths to pass. That’s on the appeal.” The city clerk declared, “correction for the record, motion fails.”
On appeal, Lateef challenged the denial of his writ of administrative mandamus, arguing the proper interpretation of subsection 10-3.1310(E) was that it “requires that five-sevenths of those councilmembers present and voting at the appeal hearing vote in favor of granting the appeal in order for the appellant to prevail on appeal….” Pursuant to that section, the city council’s four-to-one vote in his favor was sufficient to grant his appeal.

The court further found that Subsection 10-3.1310(E) could not be read as Lateef proposes without omitting the word “whole.” By its plain language, “whole of the Council” referred to the entire city council, or all seven members. Having obtained only four favorable votes, the court held that the city council properly denied Lateef’s appeal.
Lateef next argued that if the city’s interpretation of the ordinance was correct, he was deprived of a fair hearing because the recused councilmember and vacant council seat were included as councilmembers when determining the number of votes needed to grant his appeal. Under California law, a vacant council seat is included in determining whether a quorum exists. As such, Lateef could have requested a continuance of the hearing until the vacant seat was filled to better increase his chance of prevailing. Even had the city council excluded the recused councilmember from the calculation, Lateef still would not prevail, however, as five-sevenths vote of six was a number greater than four. Accordingly, the trial court properly denied his petition for administrative mandamus.
Lateef v. City of Madera, 258 Cal.Rptr.3d 553 (2020)

This post was authored by Matthew Loescher, Esq.

Verizon filed the instant action under the Communications Act of 1934, as amended by the Telecommunications Act of 1996, alleging that defendant Desoto County, acting through its Board of Supervisors, violated federal law by denying it permission to construct the wireless telecommunications tower at issue in this case. Verizon alleged that a gap existed in its cell phone coverage in the area, which required the building of an additional wireless tower. In furtherance of this, Verizon filed a conditional use application to build a one hundred ninety-foot monopole wireless communications tower in western Desoto County. The Desoto County Board of Supervisors held a public hearing on Verizon’s application, and unanimously voted to deny the application.
The court first found the expert report which Verizon relied on, prepared by its engineer Gil Tomlinson, was written in vague terms of “offloading Verizon’s existing sites” as a result of “heavy usage stemming from the new Verizon Unlimited Data Plan.”

Additionally, Verizon did not offer a single case suggesting that, if a provider made a business decision to offer an Unlimited Data Plan, and suffered congestion as a result, then it could use the TCA as a means of forcing local governments to approve, over the objections from residents, new cell phone towers which accommodate that business decision. Accordingly, the court held that the County’s finding that Verizon failed to demonstrate a sufficient need for the project was supported by substantial evidence.
Verizon next contended that the County lacked substantial evidence in support of its conclusion that there would be a significant negative aesthetic effect upon the community. The record reflected that four residents testified at the hearing regarding their aesthetics concerns about the project. As the County was faced with extremely weak proof regarding the need for the project, the court found that it was appropriate to give some weight to the aesthetics concerns expressed by these residents.

Lastly, the court turned to the county’s finding that, “the construction of the tower will adversely affect the drainage in this area.” The court’s view of the proof on this issue is similar to its view of the aesthetics issue, as it found the strength of the proof which the County should reasonably require regarding the potential harm of the project was appropriately considered in light of the strength of Verizon’s own proof regarding the need for the project. Specifically, Verizon did not present any expert testimony of its own that these concerns were ill-founded. As Verizon failed to demonstrate a “substantial gap” in coverage under federal standards, the County’s decision to reject the project in this case was supported by substantial evidence.
Verizon Wireless Tennessee Partnership v. Desoto County, 419 F.Supp.3d 950 (ND MS 12/16/2019)

This post was authored by Matthew Loeser,Esq.

Geerling Florist, Inc. owned a 46.25 acre property, formerly used as a nursery with mulching operation in the RA-Residential Agricultural Zoning District, which it sought to subdivide into forty-nine single-family dwelling units. Under the Warrington Township Zoning Ordinance, Geerling could build only fourteen single-family detached houses by right. In order to increase the number of permitted lots for the subdivision, Geerling intended to convey transferable development rights (“TDRs”) to the Township. In an effort to minimize the number of TDRs it would be required to surrender in addition to the nineteen already conveyed to the Township, Geerling argued that the baseline should be the number of dwelling units it could have had under the Ordinance’s cluster development use provision. The trial court found Section 370-411.G of the relevant Ordinance was ambiguous because it failed to specify how to calculate a baseline for determining the number of TDRs to be conveyed. As a result, the trial court looked to Section 603.1 of the Pennsylvania Municipalities Planning Code (“MPC”), and “interpreted” the Ordinance in favor of Geerling by using the cluster development number of dwelling units as the baseline for determining the number of TDRs necessary for the forty-nine lot development.

On appeal, the Board contended that this was not an “ambiguity”, but an omission, and that this omission should be filled by utilizing the rules of statutory construction and by the Board’s authority to impose reasonable conditions on conditional uses. The Board further claimed that the conditions attached to the Board Cluster Decision (preservation of 83% of the property as open space and preservation of a majority of prime agricultural soils) were reasonable as they were taken directly from Sections 370-403.B and 370-405.2.B(2) of the Ordinance and because it was not the intention of the cluster development provision of the Ordinance “to be used to greatly reduce the proportion of remaining open space by using it as a springboard to create a more intense TDR development.”

The court determined that the language of the Ordinance was not ambiguous with respect to determining a baseline, but was completely silent on the subject. As such, the application of Section 603.1 was inappropriate. Pursuant to the Ordinance as it was during the relevant time period, cluster development functioned to preserve open space and prime agricultural soils for future agricultural use – in addition to the preservation of 83% open space and other requirements specified in Section 370-405.2.B. Thus, applying deference to the Board, as the entity which adjudicates conditional uses, the court held that the Board did not err in its application of the Ordinance. Accordingly, the trial court’s holding to the contrary was reversed.

Geerling Florist, Inc. v. Board of Supervisors of Warrington Township, 2020 WL 697509 (PA App. 2/12/2020)

This post was authored by Matthew Loescher, Esq.
After the granting of the People’s motion in limine to exclude evidence of preexisting non-conforming use of the premises, defendant was convicted at nonjury trial in the City Court of New Rochelle, Westchester County, of city code violations for causing or allowing use of second-floor of single-family home as a separate dwelling unit, causing or allowing use of single-family home as three-family dwelling, causing or allowing non-conforming use under city’s zoning ordinances, having two sheds and a deck without a building permit, and using an altered and finished third floor without a building permit. Defendant appealed, and the Appellate Term reversed and remanded for new trial. Following new nonjury trial in the City Court of New Rochelle, Westchester County, defendant was convicted of the same code violations.
On appeal, defendant claimed that the informations under City Court docket Nos. 70064 and 70097, each charging him with violating Code § 331-11(A) due to nonconforming use of the third and second floors of his home, “duplicated the same charge” of the information under City Court docket No. 70098, that charged nonconforming use of his home as a multifamily dwelling. Defendant’s multiplicity argument was not preserved, however, as he made no such motion to the City Court. Nevertheless, the court addressed this issue and reversed two of the three judgments convicting defendant of violating Code § 331-11(A) as multiplicitous, and dismissed those informations.
The court next found that the People failed to present any compelling trial evidence that the third floor bathroom and kitchen were later alterations to defendant’s home, as opposed to a part of the dwelling’s initial construction. Even assuming that the bathroom and kitchen were later alterations, the People did not present any evidence that they postdated, rather than predated, defendant’s purchase of the dwelling. As such, the judgment convicting defendant under City Court docket No. 70063 was reversed and the information under that docket number dismissed.
Similarly, the court found that the single charge, based upon allegations that defendant erected both sheds and a deck without first obtaining a permit, was duplicitous. However, as defendant never raised this issue prior to trial or on appeal, the court had no cause to address it in the interest of justice. Notwithstanding the above, the People presented no evidence that the addition of the deck postdated, rather than predated, defendant’s purchase of the dwelling. Accordingly, the weight of the evidence did not support the People’s duplicitous claim that defendant violated Code § 111-8.
People v. DeRaffele, 66 Misc.3d 41 (NY Spec. Ct Appellate Term 12/12/2019)

This post was authored by Matthew Loescher, Esq.
Petitioner Lisa Cradit purchased property located in an R–40 low-density residential zoning district in the Town of Southold. In 2014, Cradit began using the residence on the property for short-term rentals. In 2015, Southold amended its zoning code to prohibit “transient rental properties” in all districts. Subsequently, Cradit received a notice of violation which stated that on December 17, 2015, she had violated Southold Town Code §§ 280–4 and 280–111(J). The Board concluded that Cradit had not established that her use of her property for short-term rentals was a legal nonconforming use. The Supreme Court granted the Board’s motion to dismiss the complaint, and Cradit appealed.
The court found that in renting out the residence on the property on a short-term basis, Cradit was not using the residence as a one-family dwelling. Pursuant to the Town Code, property that is used as “a boarding- or rooming house, hotel, motel, inn, lodging or nursing or similar home or other similar structure, shall not be deemed to constitute a ‘dwelling unit.” Thus, the Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280–4 and 280–111(J), Southold Town Code § 280–8(E) explicited provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, as Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use was a legal nonconforming use.
Cradit v. Southold Town Zoning Board of Appeals, 179 A.D.3d 1058 (2 Dept 1/29/2020)

This post was authored by Matthew Loeser, Esq.

Plaintiff, FLM Enterprises, LLC purchased an 80-acre tract of land near Chillicothe for the purpose of mineral extraction. The Peoria County Department of Planning and Zoning confirmed that the nonconforming use certificate was still valid and issued a letter to FLM stating the same. In 2016, FLM received notification from the Department revoking the nonconforming use certificate “due to evidence that the covered uses were abandoned for approximately 10 years” and ordering FLM to cease and desist. FLM appealed the Department’s decision to the Zoning Board. Peoria County Zoning Board of Appeals approved the Peoria County Department of Planning and Zoning’s decision to revoke a nonconforming use certificate, and the circuit court confirmed the Board’s decision.

On appeal, FLM argued that the equitable doctrines of estoppel and laches barred the Department from revoking the nonconforming use certificate. Here, it was undisputed that Lowder, acting as the Department’s assistant administrator, informed FLM on two occasions that the certificate was valid because storage had continued on the property. Furthermore, Lowder sent a follow-up letter that expressly stated that the nonconforming use certificate allowed for “mining and extraction of stone, sand, and gravel” and was “still valid.” Based on the Department’s communication and its promise to send written verification, FLM purchased the property for $640,000 and initiated plans to develop it for mineral extraction. The court therefore found that FLM justifiably relied on the Department’s that the nonconforming use certificate was valid.

The record further reflected that the Department waited nine years before revoking the nonconforming use certificate. As such, the court determined it would be inequitable to allow the Department to revoke the nonconforming use certificate. Accordingly, the court held that the Zoning Board’s finding that FLM’s reliance was unreasonable was against the manifest weight of the evidence and the doctrine of equitable estoppel applied. Having determined that the Department was estopped from revoking the nonconforming use certificate, the court did not consider FLM’s alternative argument of laches. The case was reversed and remanded based on the application of the doctrine of equitable estoppel.

FLM Enterprises, LLC v. Peoria County Zoning Board of Appeals, 2020 IL App (3d) 180634 (1/29/2020)

This post was authored by Matthew Loeser, Esq.

In 2006, the petitioner Lisa Cradit purchased property located in an R–40 low-density residential zoning district in the Town of Southold. In 2014, Cradit began using the residence on the property for short-term rentals. In 2015, Southold amended its zoning code to prohibit “transient rental properties” in all districts. Shortly thereafter, Cradit received a notice of violation stating that she had violated Southold Town Code §§ 280–4 and 280–111(J). The Southold Town Zoning Board of Appeals found that Cradit’s use of her property for short-term rentals was “similar to a hotel/motel use,” which had never been permitted, rather than to the permitted use of a one-family dwelling. As such, the Board concluded that Cradit had failed to establish that her use of her property for short-term rentals was a legal nonconforming use. Cradit then commenced this CPLR article 78 action, which was dismissed by the Supreme Court of New York.

Pursuant to the Southold Town Code, a one-family dwelling is a building that contains a single dwelling unit. Additionally, where property is used as “a boarding- or rooming house, … hotel, motel, inn, lodging or nursing or similar home or other similar structure, it shall not be deemed to constitute a “dwelling unit”. Therefore, in renting out the residence on the property on a short-term basis, Cradit was not using the residence as a one-family dwelling. Thus, the Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280–4 and 280–111(J), Southold Town Code § 280–8(E) specifically provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, since Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use was a legal nonconforming use.

Cradit v. Southold Town Zoning Board of Appeals, 2020 WL 465419 (NYAD 2 Dept. 1/29/2020)

This post was authored by Matthew Loeser, Esq.

In April 2005, Yamhill County issued a Measure 37 waiver that allowed Glenn and Diane Gregg to “make application to subdivide the subject property into 12 lots.” In 2006, the County issued another waiver allowing Glenn and Diane to divide the property into 13 lots. In this case, Steven, Thomas, and Donald Gregg and the Board of Commissioners of Yamhill County appeal from a judgment entered in a writ of review proceeding that reversed Yamhill County’s determination that Steven, Thomas, and Donald Gregg had a right to complete a subdivision to their property. The circuit court reversed the county’s determination, finding that none of the relevant parties was an “applicant” for purposes of a vesting decision under Ordinance 823 and that Steven and Thomas were not “claimants that filed a claim under Ballot Measure 37,” as required by section 5(3) of Measure 49. The court further found that ORS 215.130, which required nonconforming uses to be continuous, extinguished the claims under section 5(3) of Measure 49.

On appeal, Steven and Thomas first argued that the text quoted above should not be read as requiring a Measure 49 claimant to be the same person “that filed a claim under Measure 37 on or before June 28, 2007.” In support of that contention, Steven and Thomas cited a provision enacted in 2007 that applied to Measure 37 claims during a special extension of the claims review process, ORS 197.353(3), and a provision of Measure 49 regarding calculation of a claimant’s acquisition date, ORS 195.328(1). The court found, however, that their argument was defeated by the text of section 5(3) itself. Pursuant to that section, to obtain relief under section 5(3), a claimant must be a person “that filed a claim under Measure 37.” Given that express requirement, the circuit court’s determination was upheld.

Donald and the County’s argued that Donald’s “status as a Measure 37 waiver holder and qualified applicant under Ordinance 823 for a vested rights determination” was unquestionably established earlier in the proceedings and could not be relitigated now. The court rejected this contention, finding the court’s holding in Beck v. City of Tillamook, 313 Or. 148, 831 P.2d 678 (1992), upon which Donald and the county relied, was specific to Land Use Board of Appeals (“LUBA”) and based on the statutes governing LUBA’s review of land use decisions. As such, those statutes did not apply to writ of review proceedings. Accordingly, because Beck has no application in the writ of review context the circuit court’s holding on this claim was affirmed.

Kleikamp v. Board of Commissioners of Yamhill County, 301 Or.App. 275 (2019)