This post was authored by Matthew Loeser, Esq.

In this case, the Raeslys’ appealed a decision by the ZBA, affirming the Building Inspector’s determination that the Raeslys were using the property known as 109 Hobart Street, Danvers, Massachusetts for animal husbandry.

 On appeal, the Raeslys contended that the bylaw was inapplicable to their goats because it only applied to animals kept for animal husbandry uses, and Dean and Deluca (the goats) were kept as pets. The relevant bylaw defined “animal husbandry” as “the raising and keeping of animals, as an accessory use to a single family dwelling, where all accessory uses, such as barns, pens, cages, water/feeding stations and waste storage/disposal areas shall be located at least fifteen feet from an abutting residential lot line.” The Raeslys claimed that “the raising and keeping of animals,” which was not further defined, meant the breeding and raising of domestic animals for commercial use, such as meat, milk, or eggs. Accepting that definition, “animal husbandry” would exclude the goats, which were neutered and not used for any commercial purposes. The ZBA’s position was that the bylaw did not address how the animals were used, but instead regulated the keeping of large or disruptive animals outdoors on residential property in order to prevent nuisances created by such animals.

The court noted that the bylaw unambiguously identified “goats” as included in the category of animals not permitted in the residential-1 zoning district under the bylaw. As such, the ZBA’s interpretation of the bylaw was found reasonable and valid. Accordingly, the court held that the animal husbandry bylaw was not unreasonable as it had been applied by the Building Inspector to the property.

Raesly v Boughner, 2019 WL 5842623 (MA Land CT. 11/7/2019)

This post was authored by Matthew Loeser, Esq.           

Bobbi Jo Maffeo owned a two-acre property located at 769 Railroad Street in the Borough of Windber, Somerset County, Pennsylvania. The Windber Borough Zoning Hearing Board required Maffeo to remove livestock from her property – which was located in a residential zoning district. Maffeo appealed, and the Court of Common Pleas of Somerset County affirmed the Zoning Board’s decision.

On appeal, Maffeo first argued that the Board improperly excluded a letter from Leann Stewart, an officer of the Somerset County Humane Society, setting forth that “basically the animals are well kept”, from the evidentiary record. The court noted that Section 1005-A of the Pennsylvania Municipalities Planning Code (“MPC”) authorizes a court to accept, upon motion, additional evidence in a land use appeal; however, a court is only required to hear additional evidence pursuant to Section 1005-A if “the party seeking the hearing demonstrates that the record is incomplete because the party was denied the opportunity to be heard fully, or because relevant testimony was offered and excluded.” Here, Maffeo presented the letter and had it marked as an exhibit at the hearing before the Board. Additionally, the common pleas discussed the letter in its opinion and treated it as part of the record by weighing it against other evidence before the Board before concluding that the Board did not abuse its discretion. Accordingly, the court upheld the common pleas’ order with regard to its denial of the Motion with respect to the Stewart letter.

The court next addressed Maffeo’s request to present new survey evidence. The court found that Maffeo failed to demonstrate: that she did not have an opportunity to submit her own survey, that a survey she did offer was excluded, or any compelling reason why common pleas should now allow her to submit a survey into evidence. Furthermore, with regard to the evidence of uneven enforcement of the Ordinance, Borough resident Mark Horner testified at the hearing that Borough officers assured him that no ordinance prohibited the chickens, ducks, and rooster he kept on his property. Appellant did not suggest in her Motion, however, that she was prevented at the hearing from eliciting other testimony about uneven enforcement.

Finally, the record indicated that the Board considered the 2017 survey together with Appellant’s admission of the survey’s accuracy. Here, the survey evidence before the Board supported its determinations that Maffeo was operating in a primarily residential district, and even if the animals were restricted to the portion of the property zoned for conservation, they would still be kept “within 200 feet of a residential lot.” Accordingly, the court affirmed the common pleas’ order, and held the Board had substantial evidence of the property’s zoning.

City Club of New York v. Extell Development Company, 2019 WL 5791430 (NYAD 1 Dept. 11/7/2019)

This post was authored by Matthew Loeser, Esq.

In 2004, the respondent Planning Board of the Incorporated Village of Muttontown approved the application of the petitioner, WB Kirby Hill LLC, for subdivision plat approval, on the condition that the petitioner post a performance bond in the sum of $14,000,565 for the completion of certain public improvements. In 2008, the amount of the performance bond was reduced to $7,215,059. Upon the petitioner’s application for discharge of the performance bond, the Planning Board recommended that the amount of the performance bond be reduced to $3,126,524. This amount included the costs of 3 uncompleted public improvements, and 10% of the costs of 28 completed public improvements. The respondent Board of Trustees of the Incorporated Village of Muttontown approved the Planning Board’s decision.

Following this, the Supreme Court annulled the determination. The Planning Board then recommended that the amount of the performance bond be reduced to $1,911,557. This amount included the costs of 4 uncompleted public improvements, as well as 10% of the costs of 12 completed public improvements – which was approved by the Planning Board. The Supreme Court then granted the second amended petition, annulled the determination on the ground that it failed to comply with the prior judgment, and remitted the matter to the Planning Board to determine the amount of the performance bond, which amount was to include only the costs to complete the public improvements. Additionally, the court determined that the Village respondents were not entitled to additional fees from the petitioner in connection with the discharge of the performance bond. The Village respondents appealed from this judgment.

On appeal, the court found that the Village respondents were barred by the doctrines of res judicata and collateral estoppel from relitigating whether the costs of completed items could be included in the amount by which the performance bond should be reduced. The court did not, however, agree with the Supreme Court’s holding that the petitioner was not responsible for any further fees or costs related to the discharge of the performance bond. It noted that while a municipality may charge reasonably necessary fees in conjunction with a subdivision application, it could not opine as to whether the fees charged to the petitioner in connection with the instant application were reasonable. Accordingly, the Supreme Court’s determination to grant the second amended petition and to annul the determination of the Board of Trustees was affirmed.

WB Kirby Hill, LLC v. Incorporated Village of Muttontown, 175 A.D.3d 1537 (2019)

 

This post was authored by Matthew Loeser, Esq.

The Billes, joint owners of real property in Duluth, sought a zoning variance to build a home on their property. The Neighbors, joint owners of land adjacent to the Billes, opposed the Billes’ variance because they alleged that construction of the Billes’ home would obstruct their view of Lake Superior. The Commission granted the variance, and the Neighbors appealed to the Town of Duluth Board of Supervisors. The Board granted the Neighbors’ appeal and denied the Billes’ variance application. The Billes then filed an amended variance application with the Commission. The Commission granted the Billes’ variance soon thereafter, and the Neighbors again appealed. The Board denied the Neighbors’ appeal and granted the Billes’ variance application. The district court dismissed the Billes from the case, because they had not been timely served, and then dismissed the entire action. The court of appeals affirmed, and the Neighbors timely appealed.

On appeal, the court noted that although the 30-day appeal period had run under the local Duluth ordinance, the district court was not prevented from adding the Billes to the case since the court had jurisdiction by way of the Neighbors’ proper service on Duluth. Additionally, as the parties had already appeared before the court, joinder and service of process were feasible. Moreover, the district court was aware of the Billes’ presence and was therefore required by Rule 19.01 of the Minnesota Rules of Civil Procedure to join them as parties. As such, the court reversed the decision of the court of appeals and remanded to the district court with instructions to reinstate the action.

Schulz v. Town of Duluth, 2019 WL 6519674 (MN 12/4/2019)

This post was authored by Matthew Loeser, Esq.

Defendant Pasquale Pisano, on behalf of Pisano Brothers, applied for a used car dealer license from the Department of Motor Vehicles, and listed himself as vice president and his brother as president. The Zoning Board of Appeals of the City of Stamford unanimously voted to approve the Pisano application, and plaintiff, One Elmcroft Stamford, LLC, appealed to the Superior Court. In this case, the plaintiff appealed from the judgment of the Superior Court denying its appeal from the decision of the Zoning Board of Appeals.

The plaintiff first contended that Pisano Brothers, in its business capacity, sought a used car dealer’s license from the Department of Motor Vehicles, yet the certificate of approval application – and the subsequent hearing notification – listed the defendant as the applicant. As a result, the plaintiff argued that the board’s approval of the Pisano application was improper because its decision was rendered in favor of a person rather than in the name of the proposed licensee. The plaintiff failed to cite any authority in support of this proposition, however. Here, while Pisano Brothers was not the named applicant on the certificate of approval application, the court found the “totality of the circumstances” sufficiently linked the defendant to Pisano Brothers, so that no one was misled by or misunderstood the nature of the application. Furthermore, at the outset of the public hearing, the defendant was introduced as one of the owners of Pisano Brothers, along with his brother. Accordingly, the court held that the trial court did not err in finding that the defendant, as a representative of Pisano Brothers, had standing to apply to the board for location approval.

The court next noted the record reflected that on several occasions the Pisano application was referred to and treated as an application for a variance. Specifically, in approving the Pisano application, the Board issued one finding, in which it directly quoted the following variance standard provided in the Stamford zoning regulations: “Strict application of the provisions of these Regulations would deprive the applicant of the reasonable use of such land or building and the granting of the variance is necessary for the reasonable use of the land or building.” Despite the fact that the Board heard evidence that could pertain to suitability, and issued several conditions of approval that accommodated potential concerns within the neighborhood, the Board failed to issue any findings as to the suitability factors enumerated under the requisite §14-55. Moreover, when the court reviewed the record to determine whether the evidence could, nevertheless, support a conclusion that the suitability requirement was satisfied, the court erroneously substituted its own judgment for that of the Board. Accordingly, the judgment was reversed and the case was remanded to the trial court with the instruction to remand the case to the Board for further proceedings.

One Elmcroft Stamford, LLC v. Zoning Board of Appeals of City of Stamford, 192 Conn. App. 275 (9/3/2019)

This post was authored by Matthew Loeser, Esq.

Up State Tower Co., LLC developed and built telecommunications facilities on behalf of Blue Wireless, a telecommunications carrier licensed by the Federal Communications Commission (“FCC”). In 2015, made an application which sought permission to construct a wireless telecommunications tower at 1710 Foote Avenue, in Jamestown, New York. The Town Board of the Town of Kiantone denied the application. The court denied reconsideration, and Plaintiff filed a notice of interlocutory appeal. The United States Court of Appeals for the Second Circuit affirmed both decisions.

Defendant first argued that plaintiff failed to adequately investigate other potentially viable sites for constructing a new tower or placing an antenna. The record reflected, however, that in its initial Site Selection and Justification Report, submitted along with its application, plaintiff evaluated nine commercial properties along Foote Avenue. The defendants then requested that plaintiff evaluate additional properties that were not properly zoned, and which would have accordingly required another variance. Plaintiff further demonstrated that, for the alternative sites evaluated, either suitable lease terms could not be reached with the property owners, the owners did not respond to the proposed leases sent to them, or the owners decided not to pursue entering into a lease. Based on the aforementioned, the court found the Board’s conclusion to the contrary was not based on substantial evidence.

Defendants next contended that there was not competent evidence to establish that Plaintiff’s Proposed Site was the least intrusive means to close a wireless coverage gap in the Town. Instead, the evidence indicated that the Proposed Site would not result in any significant adverse impacts on the environment so as to excuse Plaintiff from preparing an environmental impact statement. Here, in the SEQRA review, the Board evaluated and discussed each of the factors to be considered relative to potential environmental impacts. Furthermore, the Board considered the Proposed Site’s “Consistency with Community Plans” and “Consistency with Community Character” and found that it was consistent both with adopted land use plans and community character. Thus, the court found the negative SEQRA declaration was relevant to rebut Defendants’ conclusory and general assertions about intrusiveness of the Proposed Site and demonstrate that they were not supported by substantial evidence. The court therefore affirmed the denial of Defendants’ Motion for Reconsideration.

Up State Tower Co., LLC v Town of Kiatone, 2019 WL 6320335 (WDNY 11/26/2019)

This post originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.  See, https://www.rockymountainsignlaw.com/2020/01/texas-citys-banner-sign-limitation-found-content-based-but-survives-first-amendment-challenge/#more-2684

It is a rare free speech case where a court finds a regulation content based, but still upholds the regulation.  That very scenario played out in a federal district court in Texas, when it upheld the City of Shavano Park’s sign regulation prohibiting certain banner signs.

Shavano Park, a suburb of San Antonio, has a sign code that controls the placement of signs on private property.  The code allows one temporary sign per residential lot, with some additional allowances when properties are for sale or during election seasons.  The code also allows the placement of banner signs in residential zoning districts, with some limitations.  These limitations include that such signs may be erected by a homeowners’ association, they may be placed at entrances to residential neighborhoods, no more than one banner sign is allowed per owner, and banner signs are only permitted in the week before the first Tuesday in October, which coincides with National Night Out.  The sign code’s stated rationale for its restrictions focuses largely on aesthetics.

The plaintiff in the case, Etta Fanning, lives in a gated community called Bentley Manor.  The neighborhood hosts a party over the July 4^th holiday.  The association uses signs to communicate information about the party.  The 2018 rendition of the party was cancelled due to foul weather, and the association planned a party later in the month of July.  To communicate information about the “raincheck” party, the association hung banner signs on trees near the entry gate of the community, and posted small signs on property that the association believed to be residents’ properties, with the permission of those residents.

A city police officer noticed the banner signs and yard signs, and removed them.  He cited the city’s banner sign limitations, and removed the yard signs because he believed that they had been posted without property owner permission, and in any event, that they were located in public right-of-way.

The plaintiff filed suit in federal court in August 2018, challenging both the banner sign restrictions as well as the yard sign limitations.

On cross-motions for summary judgment, the court found for the city.  Although the city tried to get the plaintiff’s claims dismissed for lack of standing, the court found that she had standing to challenge the banner sign limitation.  Turning to the First Amendment analysis, the court concluded that the banner sign limitation was content based.  In its analysis, the court determined that, although the banner sign limitation is not expressly content based on its face, the restriction was intended to allow only those banners related to National Night Out.  The record before the court indicated that the city’s police force understood the banner sign limitation as prohibiting any banner unrelated to National Night Out.  Because the restriction was so apparently related to National Night Out, the court found that the city’s intent in enacting and enforcing the banner sign limitation was to prefer messages relating to National Night Out.

Applying strict scrutiny, the court nonetheless found the sign code constitutional.  The court concluded that the city’s regulatory interest in aesthetics was compelling, due to the small size of the city, its small population, and its focus on its “appearance, beauty, and charm.”  Because banner signs would damage that aesthetic interest, the court found that its 51-week-per-year limitation was narrowly tailored to the interest.  The court’s decision did not discuss the potential that the restriction might be underinclusive as a result of its preference for National Night Out banners.

Fanning v. City of Shavano Park, No. SA-18-CV-00803-XR, 2019 WL 7284945 (W.D. Tex. Dec. 19, 2019)

This post was authored by Matthew Loeser, Esq.

Respondent Hospital for Special Surgery (“HSS”) made an application for the renewal of a special permit to construct a new hospital building.  New York City Planning Commission granted this application, and the Supreme Court of New York denied the petition to annul this determination.

On appeal, the court found the Commission’s determination that “the facts upon which the special permit was granted have not substantially changed” was rationally based in the record and not contrary to the law. As such, the court gave deference to the Commission’s construction of the relevant statute to mean that the “facts” to be assessed referred to the scope and terms of the permitted project, rather than external factors, such as environmental impacts that could have resulted from area development during the years since the original grant of the special permit. The question of whether a full-scale reassessment of the project’s impact was needed was a matter for the Commission’s discretion.

The court also upheld respondents’ interpretation of ZR §§ 11–42(d) and 11–43, as providing that the initiation of litigation challenging a permit determination deferred commencement of a lapse period until entry of the final order in such litigation. Here, since the prior litigation initiated by petitioner concluded on June 27, 2013, the four-year special permit lapse period was due to end on June 27, 2017. As HSS’s permit renewal application was made on June 19, 2017, the court found it to be timely.

In re Edgewater Apartments, Inc v New York City Planning Commission, 2019 WL 6313060 (NYAD 1 Dept. 11/26/2019)

This post was authored by Matthew Loeser, Esq.

In this case, a potential buyer of a gravel mine brought an action to challenge a local law that eliminated the operation of sanitary landfills and demolition landfills in town as a use allowed by special use permit. On cross-motions for summary judgment, the Supreme Court denied the buyer’s motion for summary judgment and denied, in part, the Town of Carroll’s motion for summary judgment.

On appeal, defendants argued that the doctrine of estoppel precludes plaintiffs from contending the three remaining causes of action in the amended complaint. The record reflected that although the Jones plaintiffs previously took the position that the causes of action had already been finally determined, that position did not prevail. As such, all of the elements of judicial estoppel were not present in this case.

The court next found that Supreme Court erred in denying defendant’s cross motion for summary judgment dismissing the first cause of action in the complaint, which was based on allegations of a violation of substantive due process. Specifically, the buyer, Sealand, did not yet own the property at issue, but was merely a potential buyer that had an agreement with the Jones plaintiffs providing access to the property to test its suitability for expansion of the landfill on the entire parcel. Sealand’s intention to enter into contract negotiations were contingent on the success of this testing and the permitting processes. Also because of this reason, the court determined that the trial court erred in denying the cross motion for summary judgment dismissing the second cause of action in Sealand’s complaint, which alleged a taking of property without just compensation.

Jones v. Town of Carroll, 110 N.Y.S.3d 766 (NYAD 4 Dept. 11/82019)

This post was authored by Matthew Loeser, Esq.

In 2018, respondent Scannell Properties, LLC submitted an application to respondent Town of Schodack Planning Board for site plan approval and a special permit in connection with a project involving the construction of a sales distribution center in the Town of Schodack, Rensselaer County. In July 2018, the Planning Board issued a SEQRA negative declaration and notices of decision granting the application. After this decision, petitioners commenced this CPLR article 78 proceeding and declaratory judgment action, which sought to annul the Planning Board’s determination and direct it to prepare an environmental impact statement (“EIS”). Following joinder of issue, the Supreme Court of New York dismissed the petition.

Petitioners first claimed that the Planning Board failed to comply with SEQRA by not taking a hard look at several areas of environmental concern. Specifically, they alleged the Planning Board failed to address the impact on groundwater quality, traffic, public safety and community character, and that the preparation of an EIS was required. The record reflected that, in analyzing this claim, the Planning Board had the environmental assessment form (“EAF”), a geotechnical engineering report, a stormwater management report, the recommendation of the Town Engineer, and traffic impact studies. The EAF noted that the project would comply with all water control regulations and would not significantly affect the underlying aquifer. Additionally, the Planning Board also considered traffic impact studies and analyses, and found that the surrounding roadway network and intersections had sufficient capacity to accommodate traffic generated by the project. Furthermore, the area for the project was already zoned for distribution facilities and the project was consistent with the community’s character. For the aforementioned reasons, the court affirmed the Supreme Court’s holding that the Planning Board took the requisite hard look at the areas of environmental concern and satisfied its obligations under SEQRA.

Lastly, the petitioners admitted that they participated in these hearings and submitted written comments, but contended that they did not have a chance to comment after Scannell Properties provided supplemental information to the Town Engineer in June 2018. The court found that this alone did not mandate reversal. Moreover, petitioners’ argument that the review process was rushed was found to be without merit since the regulatory scheme did not provide for a minimum time for the application process. Accordingly, the judgment was affirmed.

 Brunner v. Town of Schodack Planning Board, 2019 WL 6558226 (NYAD 3 Dept. 12/5/2019)