This post was authored by Matthew Loeser, Esq.

Mr. James G. Derbes was the owner of a reception facility located in a HU-RDI zoning district. Although this property was located within a zoning district that did not allow reception facilities, it had been determined that it had a legal non-conforming use to operate as a reception facility because the property had continuously held commercial activities without the City bringing an action to stop the commercial use of the property. Derbes then decided to build a bandstand at the edge of his property, and therfore applied for a building permit with the City’s Department of Safety and Permits to build the bandstand in conjunction with an existing shed on the property. The adjoining property owners, Rose and Frank Peterson, objected to Derbes’ plan and filed an appeal with the zoning board. The BZA granted the Petersons’ appeal on February 19, 2018, overturning the decision of its Director of Safety and Permits. Derbes filed a permit application for construction of a 950 square foot “Accessory Pavilion” on his property to use in conjunction with events staged at his reception facility; however, the permit was denied by Department of Permits and Safety, and the BZA denied Mr. Derbes’ appeal – upholding the decision of the Director of Safety and Permits to deny the permit.

In this case, Derbes contended that although the BZA determinations were not consolidated before the BZA because the BZA considered the two actions separate, it was error for the district court to grant the exception of improper cumulation when he attempted to appeal the two decisions in one proceeding. Although both BZA decisions related to Derbes’ property and his attempt to build an additional structure on it for commercial purposes, the BZA decisions arose from different permit applications and procedural postures with separate BZA docket numbers and records. Moreover, the district court specifically ordered Derbes to proceed with the appeal of one BZA decision and file a separate action in Civil District Court to appeal the other BZA decision. As it was within the district court’s discretion as to whether to order separate trials of the actions or to order Derbes to proceed in separate actions, the district court’s decision was upheld.

Derbes v. City of New Orleans, 2019 WL 6542127 (LA App. 12/4/2019)

This post was authored by Matthew Loeser, Esq.

In 2006, Clewiston Commons LLC purchased property in Clewiston that was zoned residential and was being used as a mobile home park. Less than one year later, Clewiston Commons sought to rezone the property from residential to commercial. After a public hearing, the City’s Board of Commissioners passed an ordinance granting Clewiston Commons’ rezoning request. In 2016, the City began to deny Clewiston Commons permits related to its use of the property as a mobile home park. Clewiston Commons applied to the City for a special exception to allow it to operate and be able to repair and replace RV/mobile units within the park. The Board of Commissioners denied Clewiston Commons’ application for the special exception. Following this, a City code enforcement officer issued two violation notices to Clewiston Commons for failure to comply with the commercial zoning designation. A special magistrate ordered the removal of all mobile homes and that Clewiston Commons cease its use of the property as a mobile home park within 180 days.

On appeal, the City argued the federal due process claim should be dismissed because state remedies existed. The court agreed, finding that since Clewiston Commons did not complete its appeal of the Special Magistrate’s opinion, it could not bring any due process claim arising out of that opinion, even one alleging bias. Furthermore, because the Special Magistrate’s opinion was appealable and not final, Clewiston Commons’ bias argument failed.

Clewiston Commons next contended that its claim should not be dismissed because the City did not provide “pre-deprivation review” of its claims and that any post-deprivation remedies were not “meaningful”. Here, however, even construing all of the facts in the Fourth Amended Complaint as true, the court determined the City’s actions did not arise to the level of a constitutional violation because the existence of a legal remedy for the alleged due-process violations was conclusive. Accordingly, the claim was dismissed without prejudice, pending the state-court case’s outcome.

Clewiston Commons, LLC, v. City of Clewiston, 2019 WL 6614220 (MD FL 12/5/2019)

This post was authored by Matthew Loeser, Esq.

This case arose from a zoning decision by the Town of Carolina Beach, which approved a conditional use permit for respondent Carolina Beach Development Company, LLC (“CBDC”) to develop a Publix grocery store in a shopping center owned by respondent Wilmington Holding Company (“WHC”). This decision affected the adjacent commercial parcel owned by petitioner Jubilee Carolina, LLC, which had been granted a conditional use permit to construct a Harris Teeter grocery store on its property. The Town Council approved Jubilee’s site plan with interconnectivity to common access points between WHC’s property and Jubilee’s property for vehicular traffic; however, the Town Council approved CBDC’s conditional use permit but did not adopt the recommendation to include interconnectivity to Jubilee’s property (“CBDC Permit”). Specifically, the CBDC found that interconnectivity was not required under the Town’s ordinance.

Following the Town Council’s decision, Jubilee filed a petition for writ of certiorari before the New Hanover County Superior Court seeking review of the decision to grant the CBDC Permit. In its petition, Jubilee asserted that the Town acted arbitrarily and capriciously, that the decision was not supported by substantial evidence, and that Jubilee had a statutory vested right to interconnectivity in its conditional use permit. The Superior Court held that Jubilee’s vested rights argument was not properly before it, and upheld the decision to grant the CBDC Permit without interconnectivity.

On appeal, the court first found that since the decision to grant the CBDC Permit never addressed whether Jubilee acquired a statutory vested right, it was improper for Jubilee to assert the issue for the first time before the superior court, as the review was limited to errors of law.

Jubilee contended that the superior court erred in affirming the Town’s decision to grant the CBDC Permit because the findings of fact were not supported by substantial evidence and the Town Council’s decision was arbitrary and capricious. Here, the record reflected in both the transcript and in the video recording of these proceedings that the decision of the board was the result of a deliberative process and that consideration was given to the arguments made by Jubilee regarding interconnectivity. As such, the decision was not found to be arbitrary or capricious. Furthermore, there was no evidence presented that any member had a fixed opinion prior to the hearing that was not susceptible to change. Accordingly, the court affirmed the holding of the superior court.

Jubilee Carolina, LLC v Town of Carolina Beach, 2019 WL 5206274 (NC App. 10/15/2019)

This post was authored by Amy Lavine, Esq.

 Zoning ordinances are often enforced through criminal actions, but the procedural requirements tend to be stricter than in civil enforcement actions and defects may result in the charges being thrown out. This was the case in a 2019 criminal action brought against a gas station owner in Rye, New York for maintaining a sign without a valid permit. People v Vera & Magda Realty Corp., 2019 NY Slip Op 32650(U) (N.Y. City Court, City of Rye, Westchester County August 29, 2019).

The court explained that “a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution,” and “in order for an information to be facially sufficient, the factual part of the information (along with any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged.” With the exception of the hearsay requirement, which is waived if not timely raised during trial, the failure to comply with any of these requirements can be asserted at any time.

Applying these rules to the ordinance in this case, the court found that the information had to allege that a sign was constructed or maintained on the defendant’s property in the City of Rye, and that the sign did not have a valid permit. The information filed by the building inspector, however, merely alleged that defendant “did willfully commit a[n unspecified] violation at the property….” It did not explain how the defendant was responsible, however, nor did it state the particular violation that was committed, and it accordingly had to be dismissed as facially insufficient. As the court explained, the “the bald, conclusory allegation that the defendant committed a violation does not suffice. The information does not specify the offending signs, nor how the illuminated gas price signs at the gas pumps or the freestanding sign are in violation of the law. It does not assert there was no permit for either sign.”

Although it was unnecessary for resolution of the case, the court also addressed various arguments raised by the defendant. On the defendant’s first point it found that the sign, which displayed illuminated gas prices and was mounted on a freestanding pole, did not qualify for the ordinance’s exemption for “informational signs” since the ordinance specifically limited informational signs to the owner’s name, phone number, location and/or hours of operation and required them to be placed on a window or door. The court also rejected the defendant’s claim that it was not responsible for the sign, which had been installed by its gas station tenant, because another provision in the city code specifically provided that property owners would be considered responsible for all signs displayed on their property.

The court agreed with the defendant, however, that the city’s sign ordinance would be preempted to the extent that it conflicted with a state law requiring gas stations to post price signs on their pumps. It mentioned on this point that “the apparent problem with the price signs on the gas pumps is due to them appearing illuminated in red where Code section §165-4(H)(3) restricts illumination to appear white when illuminated. This restriction makes little sense3 as a matter of optics since white contains red within its spectrum and red light is less visible than white light. It seems more likely the enacting City Council was concerned with the intensity of the lighting rather than its color. Perhaps, the City Council might consider regulating light intensity rather than color, thus legalizing the gas pump signs.”

This post was authored by Amy Lavine, Esq.

 A New York appellate court held in July that dismissal was appropriate in an action challenging a zoning board’s interpretation of a buffer area requirement between the petitioners’ properties and a subdivision proposed on adjacent land. The petitioners conceded that they failed to timely serve the zoning board, and the court rejected their request for an extension of time because there was no evidence that they had made any attempt to serve the zoning board during the statutory appeals period. The court emphasized that the petitioners didn’t seek an extension until more than four months after appeals period had expired and more than three months after the respondents had moved to dismiss the case. “Those factors, considered as a whole,” the court concluded, “weigh against extending petitioners’ time for service in the interest of justice.”

Matter of Janiga v Town of W. Seneca Zoning Bd. of Appeals, 2019 NY Slip Op 05859 (N.Y. App. Div. 4th Dept. 7/31/19).

This post was authored by Amy Lavine, Esq.

An application for a special exception to operate a wildlife educational center was found to be consistent with the comprehensive plan in a Delaware case decided in 2019, but the court nevertheless affirmed the denial of its permit application because it failed to provide sufficient evidence regarding its impacts on odors and traffic.

In finding that the wildlife center was consistent with the comprehensive plan the court explained that the application supported the plan’s goal of encouraging “existing businesses… but not large-scale, regional retail uses” as well as the goal of promoting wildlife and natural habitat education. Moreover, by designating wildlife educational centers as a specially permitted use, the court found that the town legislature had already determined that the use conformed to the comprehensive plan.

The court nevertheless upheld the board of adjustment’s denial of the wildlife center’s application because it failed to satisfy all of the ordinance’s requirements for granting special exceptions. First, there was substantial evidence for the board of adjustment to conclude that the wildlife educational center would cause objectionable odors. As the court explained, “Considering that the animals are to be housed outside, the number of total animals is uncertain, and several of the animals are scent marking, a reasonable person could find that odors from urine and other animal waste would produce objectionable odors to neighboring property owners, even though the animals are considered ‘small’, ‘low waste producing’ and Barn Hill provides cleaning and maintenance.” The wildlife education center also failed to provide sufficient evidence for the board of adjustment to determine whether the proposed use would have detrimental impacts on traffic. The only evidence that it submitted regarding traffic consisted of the size of the parking lot and estimated attendance figures, but as the court noted, this evidence provided little to no information about the wildlife center’s likely traffic impacts.

Barn Hill Pres. of Del., LLC v. Bd. of Adjustment, 2019 WL 2301991 (5/29/19).

This post was authored by Amy Lavine, Esq.

The Massachusetts Land Court held in November that the keeping of two pet goats violated a town zoning bylaw that prohibited animal husbandry in residential districts.

It was undisputed in the case that the goats, Dean and Deluca, were pets, as they were used “for pleasure rather than utility.” Although the court noted that the keeping of pets is often permissible as an accessory use even where not specifically allowed, it also noted that “the goats’ status as pets does not mean that the keeping of goats cannot also constitute ‘animal husbandry’ under the bylaw.”

The definition of “animal husbandry” in the zoning bylaw was stated as “the raising and keeping of animals,” and the property owners argued that this meant “the breeding and raising of domestic animals for commercial use, such as meat, milk, or eggs.” This interpretation would have excluded their goats, as they were neutered and had no commercial uses. The court acknowledged that this argument had some merit, but it was nevertheless outweighed by two other considerations. First, goats tended to fall within the common meaning of “animal husbandry,” as evidenced by dictionary entries for “animal husbandry” and “domestic animals,” as well as the traditional understanding that goats are farm animals. Second, and more significantly, the bylaw’s definition of “animal husbandry” specifically referred to goats in its classification for “larger animals,” which required a special permit.

The court ultimately concluded that both the property owners and the town offered reasonable interpretations of the zoning bylaw. Faced with these competing interpretations, however, the court was bound to give deference to the zoning board’s position. As the court explained, the zoning board “read the bylaw as addressing not how the animals are used, but instead as regulating the keeping of large or disruptive animals outdoors on residential property in order to prevent nuisances created by such animals. This reading, tied to the prevention of nuisance, is substantially related to the “public health, safety, convenience, morals or welfare” of the community and neighboring properties.”

Raesly v. Boughner, 2019 WL 5842961 (11/7/19).

This post was authored by Amy Lavine, Esq.

The New York Appellate Division, Second Department dismissed two challenges to the environmental review process for a waterfront redevelopment project in 2019. The first case involved a claim that a supplemental environmental impact statement should have been completed when the project’s development plan was amended, but the court concluded that the planning board sufficiently complied with the “hard look” standard for environmental review actions. In the second case, a neighboring village claimed that the project had to be restricted to certain parameters that were included in a memorandum of understanding regarding the project, but the court found that the parameters weren’t binding and that the agreement couldn’t be enforced under the term limits rule. Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 665 (Appellate Division, Second Department 2/6/19); Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 669 (Appellate Division, Second Department 2/6/19).

The Planning Board of the City of Glen Cove declared itself the lead agency for a 56-acre waterfront redevelopment project, and after determining that there was a potential for adverse environmental impacts it issued a positive declaration under the State Environmental Quality Review Act (SEQRA). Over the next several years it conducted an extensive public hearing and review process, and it eventually adopted a final environmental impact statement and granted the developer a special use permit in 2011. In 2015, the planning board approved an amendment to the development plan that would decrease the project’s overall footprint and density while increasing the area devoted to parks, public amenities, and open space. The planning board found that a supplemental environmental impact statement was unnecessary because the proposed modifications wouldn’t result in any adverse environmental impacts that hadn’t already been studied and addressed. A group of concerned residents  and a neighboring village then commenced litigation to challenge the planning board’s environmental review decisions.

Preliminarily, the court found that the petition was time barred to the extent that it sought review of the decisions made by the planning board in 2011 that adopted the environmental impact statement and approved the project’s development permit. The petitioners failed to present any reason for barring the planning board’s statute of limitations defense, the court found, because they failed to demonstrate any improper conduct such as fraud or misrepresentation.

With respect to the planning board’s 2015 determination, the court explained that the decision to prepare a supplemental environmental impact statement must be based on two criteria: the importance and relevance of the new information, and the present state of information in the environmental impact statement. The court also emphasized that judicial review was limited in the context of environmental review determinations, including decisions regarding supplemental environmental impact statements, and it could only consider “whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion. In assessing an agency’s compliance with the substantive mandates of the statute, the courts must view the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.”

Applying these standards, the court upheld the planning board’s 2015 determination. As it explained, the record showed that the planning board identified the relevant areas of environmental concern, took a hard look at them, and provided a sufficiently reasoned elaboration of the basis for its decision. Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 665 (Appellate Division, Second Department 2/6/19).

In a related action, the Village of Sea Cliff, along with its Mayor and Board of Trustees, sought declaratory and injunctive relief based on a memorandum of understanding that was executed between the village and the City of Glen Cove. The MOU provided that the village wouldn’t oppose the project as long as it complied with certain parameters, and the village claimed that the MOU was an enforceable contract that prohibited the planning board from going forward with the project to the extent that it exceeded those parameters. The court didn’t agree, however, and held that the MOU was unenforceable under the “term limits rule,” which prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so.” The court additionally found that there were no express terms in the MOU that obligated the planning board to any particular parameters. Rather, the MOU merely stated that the village wouldn’t oppose the project as long as it didn’t exceed the parameters set forth in the MOU.

Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 669 (Appellate Division, Second Department 2/6/19).

This post was authored by Amy Lavine, Esq.

A New Jersey case decided in 2019 upheld a zoning ordinance that prohibited “signs placed upon motor vehicles which are continuously or repeatedly parked in a conspicuous location to serve as a sign.”

The court rejected the defendant’s argument that the ordinance was preempted by the state’s motor vehicle code because the ordinance did not regulate motor vehicles per se, but rather prohibited “the use of a motor vehicle as the functional equivalent of a stationary sign.”

The court also found that the ordinance was not impermissibly vague because “the phrase ‘to serve as a sign’ gives notice that if a person selects a ‘conspicuous location’ and continuously or repeatedly parks a vehicle in that location — for the purpose of having the vehicle serve as a sign — the person is subject to a fine.”

While finding that the ordinance was valid, the court nevertheless agreed with the defendant that there was insufficient evidence to support his conviction. In particular, although photographs of his alleged offense were submitted into evidence, there was no testimony explaining the photographs, and this testimony was necessary to establish that the defendant’s vehicle was in a “conspicuous” location and that it was serving as a sign.

State v. Colson, 2019 WL 2536128 (NJ App. Unpub. 6/20/19).

 

 

This post was authored by Amy Lavine, Esq.

A New Jersey case decided in June addressed conditional use variance criteria for non-residential parking lots located in residential zones and concluded that the ordinance was invalid because the requirement that such parking lots be “reasonably necessary for the convenience of the community” lacked sufficient specificity.

The plaintiff requested a conditional use variance to expand the parking lot at its Dunkin Donuts franchise onto an adjoining lot in the township’s residential zone. Under the township’s zoning ordinance, the criteria for granting a conditional use variance for a nonresidential parking lot included a requirement that the parking lot had to be “reasonably necessary for the convenience of the community.” After considering testimony from the plaintiff’s experts and comments from the public, the planning board denied the plaintiff’s application on the basis that expansion of the parking lot wasn’t “reasonably necessary for the convenience of the community.” In the board’s view, street parking was available to accommodate the parking needs of Dunkin Donuts customers and the evidence failed to establish that a lack of parking had created any safety issues of other dangerous conditions.

The plaintiff challenged the planning board’s denial of its conditional use variance, asserting that the ordinance was invalid because it failed to provide sufficient specificity. The trial judge ruled in the plaintiff’s favor and the court affirmed on appeal. As the court explained: “subsection (d) of the Ordinance required the Board to ascertain whether plaintiff’s proposed parking lot was ‘reasonably necessary for the convenience of the community and [would] not be detrimental to the health, safety or general welfare of the community or the surrounding property.’ However, subsection (d) of the Ordinance lacked “definite specifications and standards” consistent with N.J.S.A. 40:55D-67(a) to enable plaintiff to know the limit and extent of the Ordinance’s provisions to satisfy the conditional use requirement. Therefore, subsection (d) of the ordinance is void, and the Board’s denial of plaintiff’s application based on the void provision was arbitrary and capricious.”

The court also affirmed the conclusion of the trial judge that the ordinance was invalid in its entirety. As the court explained, the ordinance was intended to provide flexibility in the review of parking lots located within the township’s residential zones. If the invalid criteria was merely severed from the rest of the ordinance, the plaintiff’s parking lot would comply fully with the remaining criteria and neither the planning board nor the zoning board would have the authority to review the plaintiff’s application and consider the potential negative impacts associated with non-residential parking lots in residential zones. Severing the invalid criteria would accordingly frustrate the intent of the ordinance and the trial judge correctly invalidated the entire ordinance instead.

AMEE @ 46, LLC v. Twp. of Denville, 2019 WL 2591203 (NJ App. 6/25/19).