No need to make specific finding that building qualified as accessory building when granting special exception

by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

In the end, the Cleveland Clinic got its helipad

by Hannah Dankbar

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals
(
Ohio Supreme Court, November 5, 2014)

The Board of Zoning Appeals of the City of Cleveland denied a permit to Cleveland Clinic Foundation and Fairview Hospital to build a helipad on the roof of a two-story addition to the hospital.

The land that the hospital sits on is zoned as a Local Retail Business District, meaning “a business district in which such uses are permitted as are normally required for the daily local retail business needs of the residents of the locality only.” (Cleveland Code of Ordinances (C.C.O.) 343.01(a)). The hospital has been granted many variances since this zoning was put in place.

In October 2010, the Clinic filed an application with the City’s Department of Building and Housing seeking approval of three construction projects, including the construction of the helipad. The City cited C.C.O. 343.01(b)(8), which says “accessory uses” are allowed “only to the extent necessary [and] normally accessory to the limited types of neighborhood service use permitted under this division,” and rejected all three projects.

The Clinic appealed to the Board of Zoning Appeals (BZA).  Opponents testified about potential noise and traffic problems.  The hospital representatives testified that almost all of the hospitals in the Cleveland metropolitan area have helipads, and that the use of helicopters in the transport of patients reduces travel time and, therefore, saves lives.   The BZA approved the other two projects, but denied the permit to construct the helipad citing C.C.O. 343.01(b)(8) by saying, “those uses that the Zoning Code characterizes as retail businesses for local or neighborhood needs would not involve a helipad as normally required for the daily local retail business needs of the residents of the locality.”

From here the Clinic appealed the denial to the Cuyahoga county Court of Common Pleas, who reversed the decision. This court used C.C.O. 343.01(b)(1) that provides that with limited exceptions, all uses permitted in the Multi-Family District are also permitted in the Local Retail Business District. Hospitals are expressly permitted in the Multi-Family district, and so the Court of Common Pleas concluded that a helipad is “customarily incident to” a hospital and therefore qualifies as an “accessory use.”

The BZA appealed to Eighth District Court of Appeals, who reversed again. The court found that ambiguity exists in C.C.O., and ultimately decided to give deference to the BZA and its original decision, saying “When the BZA reasonably relies on a code provision, its determination should hold so long as its decision is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record,” This is to be true regardless of the fact that the law requires any ambiguity in a zoning ordinance to be construed in favor of the property owner.

The Supreme Court of Ohio determined that the wrong standard of review was used by the Eighth District Court of Appeals. Rather than review the BZA’s decision for clear error, the Court of Appeals should have been reviewing the Court of Common Pleas decision, and only overruling the Court of Common Pleas if the decision is not supported by a preponderance of reliable, probative and substantial evidence. Reversal is only appropriate when there is an error in the application or interpretation of law.

The Supreme Court of Ohio refers to C.C.O. 325.02 and 325.721 (to define “accessory use”), 337.08 (types of buildings permissible in a Multi-Family District), and 343.01(b) (permitted buildings in a Local Retail Business District). “Given the record before us, we have little trouble concluding that the preponderance of substantial, reliable, and probative evidence supports the [Court of Common Pleas’] conclusion that helipads are customarily incident to hospitals, at least in Cleveland.”

Error to interpret list of accessory uses as an exhaustive list precluding other uses

by Kaitlin Heinen

City of Orono v. Jay T. Nygard, et al.
(Minnesota Court of Appeals, October 22, 2012)

Jay and Kendall Nygard live in a district of the City of Orono zoned as One-Family Lakeshore Residential (LR-1B). On October 13, 2010, the Nygards applied for a permit to erect a wind turbine on their property. Two days later on October 15, the City denied the Nygards’ permit application in a letter from the City’s Planning and Zoning Coordinator, which stated that wind turbines are not a permitted accessory use on property zoned LR-1B. On November 12, 2010, city employees observed a concrete footing being installed on the Nygards’ property, which they believed was being done to erect the wind turbine despite the City’s denial of their permit application. On November 16, 2010, the City issued a stop-work order and demanded that the Nygards remove the concrete footing. The Nygards disregarded this order and completed the wind turbine by February 2011.

In March 2011, the City filed suit in district court for a declaratory judgment that the Nygards’ wind turbine was not in compliance with the City’s zoning  ordinance.  In April 2011, the Nygards’ filed a separate suit against the City, challenging the City’s denial of their permit application. The district court consolidated the two cases. In March 2012, the district court granted the City’s motion and denied the Nygards’, holding that the City’s zoning ordinances clearly set forth a list of lawful accessory uses, which does not include wind turbines. The Nygards appealed to the Minnesota Court of Appeals.

The Nygards argue that the City misinterpreted 78-329 of the Orono City Code as setting forth an exhaustive list of lawful accessory uses, thereby forbidding wind turbines on LR-1B property. In contrast, the Nygards argued that section 78-329 is a non-exhaustive list and that their wind turbine is within the general definition of accessory uses. In reviewing the City’s interpretation of its zoning ordinance, the Minnesota Court of Appeals considered three principles: “First, courts generally strive to construe a term according to its plain and ordinary meaning…Second, zoning ordinances should be construed strictly against the city and in favor of the property owner…[Third,] A zoning ordinance must always be considered in light of its underlying policy.”

In regards to the first principle, the zoning ordinance should be interpreted according to its plain and ordinary meaning. It is reasonable to interpret 78-329 to mean that the nine accessory uses listed are the only lawful accessory uses in the LR-1B district. But the Nygards argue that 78-329 also can be reasonably interpreted to allow accessory uses that are not listed because the language of section 78-329 is different from the language of nearby sections of the zoning code, which are more explicit in foreclosing the possibility of other allowed uses.  Section 78-329 – the section in question – states that “the following uses shall be permitted accessory uses.”  Section 78-327, in contrast, states that “no land or structure shall be used except for” a list of specified uses, while another section – Section 78-566 – states that “no accessory structure or use of land shall be permitted except for one or more of the following uses.” Because 78-329 does not use the same type of strong language to negate the possibility of lawful accessory uses not listed within the ordinance, it is reasonable to interpret 78-329 more broadly to allow other accessory uses. Furthermore, the city conceded that it has interpreted 78-329 in other past situations to allow accessory uses that are not expressly mentioned. For example, the City has allowed structures such as flagpoles, basketball hoops or clotheslines within the LR-1B district.

In light of the City’s inconsistent interpretation of 78-329, the Minnesota Court of Appeals did not uphold the City’s denial of the Nygards’ permit application.  It ruled that the City erred when it denied the Nygards’ permit application, and that the district court also erred in entering judgment in favor of the City. The Minnesota Court of Appeals reversed the district court ruling and remanded the matter to the City for further consideration of the Nygards’ permit application.

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