The applicant proposed to construct a 7,776-square-foot stable, a 16,000-square-foot indoor riding ring, and two outdoor riding rings in an R-1 Residential District. The facilities were intended to be used for the boarding of horses, riding lessons, a summer day-camp, and an annual horse show.  A neighboring landowner challenged the Zoning Hearing Board’s grant of special exception on several grounds, including that the indoor riding arena could not be considered to be an accessory use because it was planned to be much larger in size than the stable. Rejecting this argument, the Pennsylvania Commonwealth Court ruled that “[t]he size of the structure does not dictate the status as primary or accessory.” The court further found that the facts “support[ed] the conclusion that an indoor riding arena [was] a use …subordinate and „customarily incidental to a stable.” The court rejected all other contentions raised by the neighbor, and the grant of special exception to the stable owner was affirmed.

Tennyson v. Zoning Hearing Board of West Bradford Township, 2008 WL 2415271 (Pa. Commw. June 17, 2008).

The opinion can be accessed at: http://www.courts.state.pa.us/opposting/cwealth/out/1045cd06_6-17-08.pdf

Special thanks to Prof. Anthony Schutz of the University of Nebraska School of Law for forwarding this abstract from the Penn State Dickison School of Law’s Agricultural Law Center.  See,  http://www.dsl.psu.edu/centers/aglaw.cfm.  

In a case where the United States had instituted condemnation proceedings to acquire easements for the Western Area Power Administration (WAPA), Sawyer and several other plaintiffs challenged the use of eminent domain. The plaintiffs alleged that the taking was unauthorized, that it was not for a public use, and that it violated California law.

The court held that WAPA had authority to condemn land for the purpose of constructing electric power transmission upgrades. Regardless of the fact that the various Congressional authorizations for the project did not specifically mention WAPA’s ability to use eminent domain, the court found that this power was implied: “When Congress mandates the construction of a new high-voltage transmission line and appropriates funds to carry it out, it implies, by necessity if not common sense, the authority on the part of the executing agency to acquire land on which the transmission line may be constructed.”

As to the question of whether the condemnation was for a public use, the court held that it was, even though “the beneficiaries of the project arguably [were] the customers of the privately-owned utilities, as opposed to the public at large.” The court emphasized the Supreme Court’s broad reading of the public use requirement, and pointed out that the taking in this case “hardly entail[ed] a private-to-private transfer at all.” The court, moreover, refused to question Congress’ determination that the power upgrade would be a public use.  

Finally, the court rejected Sawyer’s contention that the taking was invalid because WAPA did not first obtain approval from California Public Utility Commission. This claim was waived, because Sawyer did not raise it in a timely fashion, but in any event, the claim was precluded by the Supremacy Clause (U.S. Const. Art. VI, cl. 2). As the court explained, “[p]reemption of state law ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’”

Sawyer also raised a number of procedural challenges, but these were rejected. The district court’s grant of summary judgment in favor of the government was affirmed.

 United States v. Sawyer, No. 05-17347 (9th Cir. 6/24/2008).

 

 

The opinion can be accessed at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/88DF26E0FA056C0C8825747100819717/$file/0517347.pdf?openelement

 

 Thanks to Amy Lavine, Esq. of the Government Law Center for this posting.  Visit Amy’s blog on community benefits agreements at: http://communitybenefits.blogspot.com

In a unanimous decision, a New York Appellate Court upheld a jury’s finding that the Port Authority of New York and New Jersey had failed to implement adequate security measures despite repeated warnings that the World Trade Center’s underground parking garage was vulnerable to an “event of potentially catastrophic magnitude,” amounted to negligence. Terrorists drove a rental van laden with explosives into the public parking garage, lit a 10-minute fuse and fled. The opinion noted that the attack occurred despite internal and outside consultants’ reports advising that the WTC garage was susceptible to attack and the exact manner by which terrorists could carry out a car bombing. The Port Authority rejected recommendations as to ways to stave off an attack. The Port Authority’s argument that it had no duty to increase the garage’s security was rejected. The court noted that the Port Authority had “ample notice that a car bombing was not merely possible, but could very well occur if obvious, specifically identified vulnerabilities were not addressed.” Practice Pointer: Potential premises liability, especially for terrorist-sensitive facilities, should be considered in land use decisions.

 

Nash v. Port Authority of New York and New Jersey, 2008 NY Slip Op. 03991 (1^st Dept., 4/29/2008 ).

 

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2008/2008_03991.htm

 

Special thanks to Rufus C. Young, Jr. of  Burke, Williams & Sorensen for the abstract. See:

http://www.bwslaw.com

The city declared a retail shopping center blighted in May 2003 and entered into a redevelopment agreement with a developer in May 2004. By August 2005, the city had cancelled the agreement, and started to solicit tax increment financing (TIF) proposals for the property. In October 2005, the city re-designated the property as blighted under the TIF statute and approved a TIF plan which called for the use of eminent domain for economic development. To date, the city has never approved a TIF project nor completed condemnation proceedings against the property. As a result of the city’s actions, the owners claim their tenants have not been renewing their leases. They also claim that the city has been harassing them with inspections and code violations and interfered with their ability to attract new tenants. The property owners brought an inverse condemnation claim against the city based on the state constitution. They alleged that the city’s actions caused significant diminution of value and also increased their operating costs. The Circuit Court granted the city’s motion for summary judgment. The Missouri Supreme Court reversed, holding that actions for condemnation blight are inverse condemnation claims that property owners may advance in order to recover consequential pre-condemnation damages, abrogating State ex rel. Washington University Medical  Center Redevelopment Corp. v. Gaertner, 626 S.W.2d 373 (Mo. 1982). Further, the court held that the property owners’ claim was ripe even though their property had not been condemned.

                  

Clay County Realty Company v.  City of Gladstone, 2008 WL 2346213 (Mo. 6/10/2008).  

 

The opinion can be accessed at: http://www.courts.mo.gov/Courts/PubOpinions.nsf/0f87ea4ac0ad4c0186256405005d3b8e/81d7d669a4359e4c86257460006a5583?OpenDocument

 

Thanks to Lora Lucero, Esq., co-editor of the Zoning and Planning Law Report for sharing this abstract. For more information about ZPLR, visit:   http://west.thomson.com/productdetail/2051/14004868/productdetail.aspx

 

 

Last Monday, Mike McGrath, the Montana Attorney General issued an opinion holding that the “qualified” voters for purposes of county zoning regulation initiatives effective in all unincorporated areas of the county are all of the residents of the county, including those who reside in incorporated areas (e.g., a city). The question was presented to the Attorney General by the Hamilton City Attorney (located in Ravalli County) following the adoption of an interim resolution by the County Board of Commissioners in 2006 that placed a cap of 60,000 square feet on “large scale retail sales and retail service establishments” in all of the unincorporated areas of the County, and two subsequent citizen-sponsored zoning initiatives - one seeking to repeal the resolution and the other seeking to adopt zoning regulations limiting subdivision density to one residence per two acres for all unincorporated areas in the County. The County Attorney had concluded that only those who resided in the unincorporated areas of the County could sign the petitions and would be able to vote on the initiatives.  The City of Hamilton disagreed with the County Attorney’s opinion and argued that all county residents have a right to vote on county zoning initiatives, including those who reside in incorporated areas.

 

Reading the language of the State Constitution and subsequent legislative enactments that refer to qualified voters as residing in “each local government unit”  or “the local government,” the Attorney General concluded that the “qualified voters” for county-wide zoning initiatives include all county residents otherwise eligible to vote, including those residing in incorporated areas.  Although the County pointed to the fact that their authority, and hence jurisdiction of a zoning initiative, is limited to the unincorporated areas; and that the City only has jurisdiction to enact zoning regulations for its own incorporated area, and not for land outside of its jurisdiction, the Attorney General said that “even though the incorporated  voters of Ravalli County could not effectuate zoning regulations in unincorporated areas via their city government, they are entitled to vote on zoning initiatives within the power of the county government because they elect the board and because they could be affected by zoning regulations.”  The Attorney General distinguished the State statute dealing with “growth policies” which limits those who can vote on them to qualified electors of the area covered by the growth policy, as well as other specific regulations that impact land use, by concluding that the legislature chose a limitation in these areas, but that the nature of the general initiative provisions for zoning purposes is more inclusive.   

 

In avoiding the public policy ramifications of this opinion, the Attorney General noted that “Whether the Legislature should limit qualified voters for county-wide zoning initiatives in a similar manner is, of course, a question more properly directed to the Legislature.”

 

52 Op. Mt. A.G.6 (6/23/2008 ).

 

The opinion can be accessed at:

http://www.doj.mt.gov/resources/opinions2008/52-006.pdf

 

For a news account discussing the issues raised by this opinion see:

http://www.newwest.net/topic/article/city_residents_can_vote_on_county_issues/C35/L35

 

Thanks to Phyllis Myers for bringing this opinion to my attention.  

Hariri, an attorney and purchaser of the former Grumman Airfield in Riverhead, planned to use it to store one or more business jets. The town was developing a new plan for the enterprise park in which the property is located. Hariri lobbied in favor of a plan that would allow the use. The Long Island Pine Barrens Society opposed the use. The new plan prohibited the use and Hariri filed suit, alleging that the Society had made false accusations concerning his lobbying. The Society counterclaimed, alleging that the suit was an improper strategic lawsuit against public participation (SLAPP suit) in violation of Civil Rights Law § 76-a(1)(b). The trial court dismissed the counterclaim. The New York appeals court affirmed (1^st Dept.), reasoning that the law defines a SLAPP suit as brought by a “public applicant or permittee,” and that Hariri cannot be considered a public applicant or permittee based solely on his lobbying efforts.

 

Hariri v. Amper,  2008 WL 763285 (N.Y. A.D. 1^st Dept. 3/25/2008 )

 

Thanks to Lora Lucero, Esq. editor of APA’s Planning and Environmental Law (PEL) for sharing this abstract from the June issue.  For more information on PEL see, http://www.planning.org/PEL/index.htm

In 2001, the owner purchased the former Italian Embassy. After architects advised that the property was eligible for designation as an historic landmark, the owner apparently met with the Historic Preservation Officer, Maloney, to discuss plans to develop high-end condominiums. After September 11, 2001, the plans were put on hold. In 2004, the owner met with Maloney to discuss a new plan. Maloney expressed concern about the impact of a proposed 90-foot tower and about the amount of demolition proposed. In 2005, the owner obtained a permit to subdivide for sale as 79 condominium units, with the approval of the Historic Preservation Review Board (HPRB).  The Department of Regulatory and Consumer Affairs (DRCA) issued permits for construction staging and sidewalk usage.

 

            After the permits issued, the Historic Preservation Office (HPO) filed an application for designation as a historic landmark. The DCRA nonetheless issued permits for excavation, sheeting, shoring, and new construction. The HRPB designated the property and the HPO asked the DCRA to void the permits. The code requires historic preservation review prior to permit issuance, if a property has been designated. The owner appealed to the Mayor’s Agent, who voided the permits. The court affirmed.

 

            The code does not bar the HPRB or the Mayor’s Agent from reviewing applications for permits that were pending at the time of designation and defines “historic landmark” as including a building for which an application for designation is pending. Rejecting arguments of laches and estoppel, the court noted that those doctrines are narrowly applied with respect to governmental actions and that the authority of the Mayor’s Agent is limited to reviewing designations under the standards of the code and does not extend to balancing interests or questioning the timing of the application. The demolition of a significant portion of a historic property is inconsistent with the goals of historic preservation and the project does not have “special merit,” so it was not entitled to exemption from the requirements of the law.

 

            The court also rejected a claim that the decision resulted in unreasonable economic hardship that would amount to a taking, noting that there was no evidence that the property lost any economic use. The owner remains able to subdivide and need only propose a design that responds to concerns raised by the HPRB. The owner knew of the risks and did not have reasonable investment-backed expectations of developing the property in a way that would have a significant impact on its historic features. 

 

Embassy Real Estate Holdings, LLC v. District of Columbia Mayor’s Agent for Historic Preservation, 2008 WL 728943(D.C. Ct. App. 3/20/2008).

 

The opinion can be accessed at: http://www.plol.org/Pages/Login.aspx?d=l0Dnsocku7nGuuiaJPc9ag%3d%3d&l=Cases

 

Thanks to Lora Lucero, Esq. editor of APA’s Planning and Environmental Law (PEL) for sharing this abstract.  For more information on PEL see, http://www.planning.org/PEL/index.htm

 

 

The May/June issue of Religious Freedom in Focus (vol. 33)  published by the U.S. Department of Justice reported the following:

On April 28, the Civil Rights Division closed its investigation of the City of Gainesville, Florida under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the city amended its zoning code to remove restrictions on religious assemblies in zoning districts where nonreligious assemblies are permitted and gave permission for a Christian congregation to worship in a former Moose Lodge. The Civil Rights Division had opened an investigation in April 2007 into whether the city’s treatment of the church, Fire of God Ministries, violated RLUIPA.

Fire of God Ministries is a nondenominational Christian church that has conducted public worship services in the Gainesville area since 2001. The church currently leases a building, formerly used as a Moose Lodge. The Moose Lodge was considered a lawful nonconforming use in the single-family residential zone. In February 2006, the church applied for a zoning compliance permit to continue using the building for assembly purposes. The city denied the permit and subsequently issued a notice of violation for using the building for religious assembly without a special use permit. In September 2006, the city informed the church that if the church did not obtain a special use permit within 60 days, the city would impose fines of $100 per day.

The Division then opened an investigation focusing on the city’s requirement that the church obtain a special use permit that nonreligious assemblies such as lodges did not have to obtain. Section 2(b)(1) of RLUIPA provides that “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

While the Division’s investigation was pending, the church and the city reached an agreement that will allow the church to continue to operate as a place of worship, and the city amended its zoning code in March to remove the unequal restrictions imposed on religious assemblies.

More information about RLUIPA can be found on the Civil Rights Division’s Housing and Civil Enforcement Section homepage or at www.FirstFreedom.gov.

 

The zoning board’s denial of petitioner’s area variance application to enable her to maintain the premises as a two-family residence (a use to which the property had been put since 1967 when she purchased it) where the certificate of occupancy was for a one family residence and the structure did not meet the minimum requirements of the Town Code applicable to tow-family dwellings was upheld where the board addressed the five statutory factors set forth in State statute. The fact that the board made conclusory findings as to one of the five factors to be balanced did not outweigh the fact that the board appropriately considered the four other statutory factors.  Lastly, the Court said that variances may not be limited to the term of the petitioner’s ownership of the premises since “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning it.”

 

Fowlkes v. Board of Zoning Appeals of the town of North Hempstead, 2008 WL 2455825 (2^nd Dept. 6/17/2008 ) 

 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19612.pdf

Yesterday the American Planning Association hosted a 90 minute audioconference addressing current trends in planning law (http://www.planning.org/audioconference/advancedintensive.htm).  Among the topics addressed were the recent developments at the federal, state and local levels designed to address issues of global warming and climate change. It was astounding to listen to the volume and diversity of initiatives at the state and local levels that specifically impact local land use planning. 

  

This week, Jesse Souke reports on the Hawaii Land Use Blog (http://hilanduse.blogspot.com)  that the State legislative session ended on May 1, 2008 and while a fair number of land use bills have or are about to become law (for a complete listing see, http://hilanduse.blogspot.com/2008/06/governors-veto-list.html) the following two new initiatives relate specifically to climate change issues:

  

Act 31, HB2502 HD2, amends HRS Section 205-2 to allow the use of solar energy facilities on lands classified by the state as Agricultural, but only where the soil is classified by the land study bureau’s detailed land classification as overall (master) productivity rating class D or E (see, http://www.capitol.hawaii.gov/session2008/bills/GM662_.PDF)

 

 SB644 SD3 HD3 CD1, mandates that on or after January 1, 2010, no building permit shall be issued for a single-family dwelling that does not include a solar water heater system, and it repeals the solar energy tax credit by 2010. (see, http://capitol.hawaii.gov/session2008/bills/SB644_CD1_.htm)

 

 At the local level, planners and other land use practitioners are recommending and implementing a variety of initiatives with the goal of reducing the carbon footprint.  In addition to more compact, mixed use development, plans for walking and bike trials, sidewalks and more neighborhood (as opposed to larger scale) parks, transit oriented development and traditional neighborhood design – attention to zoning for the use of renewable energy (solar and wind) has been on many agendas.  It is clear that local governments and local planners possess the authority and tools to creatively develop workable initiatives to help slow climate change.