Tag: Zoning enforcement

Failure to comply with previous ZBA SUP conditions does not render “illegal” ZBA’s decision to grant same party another SUP

Gary Taylor

by Gary Taylor

Brinkley v. City of Milford Zoning Board of Adjustment

Iowa Court of Appeals, November 2, 2022

In May 2021, Okoboji Community School District (OCSD) submitted applications to the Milford Zoning Board of Adjustment (ZBA) seeking special use permits for the construction of a bus barn and a multipurpose building on its high school campus. The next month, the ZBA discussed OCSD’s applications during a special meeting, which the Brinkleys and their representatives attended. The Brinkleys raised multiple issues with the project, primarily focusing on OCSD’s failure to fully comply with a 2004 ZBA decision imposing a condition that OCSD must “plant, cultivate and maintain vegetative screening in an adequate and appropriate manner on the School’s property adjacent to the north, west and south of the Brinkley property” to receive a special use permit. It was essentially indisputable that OCSD had not installed or maintain the required vegetative screening along substantial portions of the border between the properties. Nevertheless, at the conclusion of the hearing on the special use permit the ZBA approved the application. One of the conditions attached to the approval was that “The vegetative screens plan as presented by the school must be planted within 12 months after the ‘substantial completion’ of the school project.” The Brinkleys filed a petition for writ of certiorari, arguing the ZBA acted without substantial evidence and illegally by granting the special use permit despite OCSD’s failure to plant the vegetative screen required in the 2004 ZBA decision. The district court found the ZBA acted legally, and this appeal was taken.

The Court of Appeals found nothing illegal or arbitrary about the ZBA’s decision. Upon review the court concluded that the ZBA was not unreasonable in concluding that OCSD met the criteria for special use permits found in the Milford zoning ordinance, nor was it unreasonable to allow the 12-month window from project completion to install new vegetative screening. On the issue of the city’s failure to enforce the screening condition from 2004, “[a]lthough the city had an obligation to enforce its zoning requirements, such [failure to carry out its] duty does not equate to an illegality.” Mandamus action could have provided the Brinkleys a vehicle to compel compliance with the 2004 decision, but that avenue was lost when the ZBA granted the current permit.

Conditional Uses/Special Uses, Iowa Court of Appeals, Zoning board of adjustment, Zoning enforcement , , ,
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Fine for zoning violation can only be imposed “upon conviction” in court

hdankbar

by Hannah Dankbar and Gary Taylor

Claybanks Township v Paul and Tana Feorene
Michigan Court of Appeals, December 8, 2015

Paul and Tana Feorene own 40 acres of land in Claybanks Township. They built a greenhouse, gazebo and hay barn on their property without obtaining zoning permits according to the Claybanks Township Zoning Ordinance (CTZO). The Township sued the Feorenes and requested that the trial court order them to remove the structures, but the Township was ordered to issue the zoning permits at the standard fee for the three structures.

The Township argued that the trial court did not follow CTZO and Michigan Zoning Enabling Act (MZEA). CTZO §§ 203 and 207 require a zoning permit to be obtained before construction begins and that any construction before a permit is obtained is a nuisance and must be abated. There is no question that the Feorenes violated CTZO by building the structures without permits; therefore the issue becomes the abatement of the nuisance.  The abatement could be accomplished either by razing the buildings or issuing the permits, and courts have broad discretion in granting relief appropriate to the circumstances. Once the Feorenes were notified that they needed zoning permits for the structures they attempted to get them; however, the Township conditioned granting the permits on the payment of a $3,100 fine it had already imposed on the Feorenes for violating CTZO. The Feorenes refused to pay the fine and built the buildings anyway.

CTZO §208 imposes a $100 fine “upon conviction” of violation of the CTZO, and each day the violation continues shall be deemed a separate offense.  Applying the rules of statutory interpretation, the court concluded that because the Township had not brought an action in court there could be no “conviction.”  As a result, the $3,100 fine was inappropriate.

The Feorenes claimed that Michigan Right to Farm Act (RTFA) also provided an alternative basis to affirm the trial court’s conclusion. RTFA was enacted to protect farmers from nuisance lawsuits.  To assert an RTFA the Feorenes had to prove: (1) the challenged activity constitutes a “farm” or “farm operation”; and (2) the farm or farm operation conforms to the relevant generally accepted agricultural and management practices (GAAMPs). The Feorenes did not cite any relevant GAAMPs; and so the court rejected the RTFA argument.

The trial court ruling was affirmed.

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Existing landscaping insufficient to meet ordinance buffer standards

hdankbar

by Hannah Dankbar

Schall v City of Williamston
Michigan Court of Appeals, December 4, 2014

William and Melanie Schall brought suit to compel their neighbors, D&G Equipment, Inc., owned by Elden and Jolene Gustafson to comply with the City of Williamston’s zoning ordinance that requires a special use permit to allow outdoor display of farm implements for sale.  The ordinance also requires a landscaped buffer zone to shield plaintiffs’ property from the sales display. The Schalls sought a writ of mandamus to compel the city and its contract zoning administrator to enforce the ordinance. The trial court found that the Gustafson’s use of their property violated the city’s zoning ordinance and ordered for the zoning administrator to enforce the ordinance.

As an initial matter the Court of Appeals affirmed that the Schalls had standing to bring the suit.  As abutting neighbors, the Schells “have a real interest in the subject matter of the controversy.  Nothing in state law indicates that private parties are limited in their ability to ask the court to abate a nuisance arising out of the violation of a zoning ordinance.

The requirements for a landscape buffer are defined in § 74-7.101 as “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.” The planning commission can only modify this requirement with “a written request identifying the relevant landscape standard, the proposed landscaping, how the proposed landscaping deviates from the landscaping standard, and why the modification is justified.”

In the present case, there was no “written request” to modify the ordinance standards. Even assuming that the site plan and the zoning administrator’s written and oral submissions to the planning commission were sufficient to meet this standard, and that the modified landscape included utilizing existing vegetation as part of the buffer, it must “achieve the same effect as the required landscaping.” The minimum standards of the ordinance apply except if the standard is reached with existing vegetation.

At the time of the lawsuit the buffer did not meet the standard, but the question became whether the buffer will meet the standard in three years. Based on its review of the expert testimony the Court of Appeals agreed with the trial court’s conclusion that the landscaping could not meet the standards of the ordinance and, therefore, that the Gustafsons were in violation of the zoning ordinance.

The zoning ordinance is clear and unambiguous and the trial court did not err in granting  summary disposition by finding no material disputed fact that defendants’ buffer failed to comply with the zoning ordinance and therefore was an abatable nuisance per se.

 

Michigan courts, Standing to sue, Zoning enforcement, Zoning ordinance interpretation , , ,
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Landowner prevails on First Amendment retailiation claim for Township’s stop work order

Gary Taylor

by Victoria Heldt

George T. Paeth, Margaret C. Paeth v. Worth Township (Michigan)
(United States Sixth Circuit Court of Appeals, June 8, 2012)

George and Margaret Paeth own a house in Worth Township, Michigan that was not in compliance with the Township’s five-foot setback requirement when they purchased it in 1998.  They made plans to add on to the first floor and replace the roof, which would expand the house’s footprint in the northeast and northwest corners.  After communication with Barbara Cutcher, Worth Township’s zoning administrator, the property was surveyed.  The Paeths received a land use permit from the Township in April 1999 and a building permit from the County building department in June 1999.  In 2002 the Township formed a building department, which assumed the responsibilities of the County’s building department.  Cutcher became the Township’s zoning and building administrator.

In June 2004, Cutcher sent a letter to the Paeths informing them that their house was not in compliance with the setback ordinance.  It instructed them to contact zoning administrator Lynn Laughlin to address the “serious problem.”  The Paeths submitted a variance application and Laughlin requested another property survey.  The survey showed that the 1999 survey underestimated the distance between the house and the property line.  The Township claimed that, due to the survey error, Cutcher relied on false information when she originally granted the permit.  The Zoning Board of Appeals (ZBA) voted to deny the variance, meaning the Paeths would have to correct the variance by removing portions of the house.

The matter was taken to the circuit court on three different occasions.  The circuit court eventually reversed the decision of the ZBA and granted the variance to the Paeths.  The Township appealed the case to the Michigan Court of Appeals, which dismissed the claim for lack of jurisdiction in July 2007.  In November 2007 Cutcher posted a stop work order on the Paeth’s property until they obtained a new permit.  The Paeths did not receive the required hearing before the order was posted.

Cutcher claimed that, had the Paeths requested a new permit, the matter would have been resolved quickly.  Instead, the Paeths contacted the State of Michigan Office of Local Government and Consumer Services to determine whether their 2003 permit was valid.  It concluded that it was and that the Paeths could continue work so long as their activities complied with code.  Cutcher wrote the Paeths a letter confirming the valid permit but insisting that she be allowed to inspect the property for code compliance before the Paeths complete any more work on their property.  The Paeths failed to contact her and the stop work order remained on the property until October when it was removed pursuant to a district court order.

In September 2008 the Paeths sued the Township in federal district court on four counts:  (1) violation of their First Amendment rights when Cutcher and the Township retaliated against them for appealing the ZBA’s variance decision; (2) violation of the Equal Protection Clause; (3) violation of substantive and procedural due process because of the issuance of the stop work order without notice or an opportunity to respond; and (4) a request for mandamus and superintending control.  After a five day trial, the court ruled in favor of the Paeths on the First Amendment claim.  It ruled in favor of the Township on count two and on the substantive due process claim in count three.  In regards to the procedural due process claim, the court also ruled in favor of the Paeths.  It noted that the Paeths have “a property interest in continuing construction on their home” and that the Township’s stop work order without the necessary prior notice deprived them of it.  It concluded that the stop work order was contrary to state law and constituted a procedural due process violation.  The court determined count four to be moot.  The Paeths were granted a little more than $200,000 in attorneys fees.

The Township appealed the procedural due process violation.  The Court noted that it is not necessary to determine if the Paeths had a property interest in the construction to determine if a procedural due process violation exists.  Procedural due process claims do not answer to local statutes or ordinances; rather a federal framework consisting of three factors must be considered to make the determination.   The Court analyzed (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest.

The Court determined there was not a due process violation.  The Paeths were given sufficient due process since the order came with instructions for how to apply for a new permit.  The process to apply for a new permit is relatively simple and the Paeths would have been only mildly inconvenienced.  In addition, the Government’s interest in the matter was fairly significant.  A fair amount of time had passed since the property was last inspected and evidence existed that the house was not in compliance with code.  The Township had a rightful interest in preventing any work that might further the property’s non-compliance.  The Court reversed the ruling and vacated the damages associated with it.

The Township also appealed the First Amendment ruling, arguing that the evidence was insufficient to prove a violation took place.  It purported that the “adverse action” and “causal connection between the action and protected conduct” requirements of a retaliation claim were not met.  The Court disagreed, concluding that the Township’s issuance of the stop work order and failure to provide notice constituted adverse actions.  Furthermore, sufficient evidence was presented to show a causal connection between the adverse action and the right to appeal the ZBA’s decision.  Testimonies from Cutcher and a member of the ZBA supported the connection.  The Court affirmed the lower court’s ruling on this claim as well as the damages for the violation and the attorneys fees.

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Landowner fails to establish city’s wrongful action when seeking to stop enforcement action

by Melanie Thwing and Gary Taylor

City of North Oaks v. Sarpal
(Minnesota Supreme Court, May 11 2011)

Dr. Rajbir and Dr. Carol Sarpal own a home in the City of North Oaks, Minnesota. The property is subject to two different restrictions. The first is a fifteen foot easement by the North Oaks Company over the northern and western edges of the property for a future trail. The second is the city’s zoning setback regulation that states no building can be within thirty feet of the property line.

In 2006 the Sarpals wanted to build a shed on their property. The Architectural Supervisory Committee (ASC) required the plans for the building before they could apply for a building permit. The ASC also required a “as-built survey” with the specific location of the shed. A City employee provided a survey and told the Sarpals that was the document they needed. This survey shows the “proposed house” and does not encroach on either restriction.

The ASC approved the shed and the Sarpals signed and submitted an application to the City for a building permit that was granted. As the Sarpals started construction they measured from the house as it was built on the property.

After the foundation was laid and the frame was constructed the City inspector approved the construction. However, one year after construction the Sarpals received a letter from the City stating that the shed encroached on the trail easement. It was at this point that the Sarpals noticed the survey obtained from the City was not an “as-built” survey but rather for a “proposed house.”

The Sarpals applied for a variance, which was denied. They then requested an extension of time because concrete foundations poured during winter run a higher risk of cracking. This City approved this request.

After the Sarpals failed to move the shed later in the year the City filed an action in district court requesting an order for the Sarpals to remove it. After a bench trial the court found that the City was equitably estopped from enforcement of the zoning ordinance because they provided the survey. The City appealed to the Court of Appeals, which affirmed.

The City then petitioned for review with the Minnesota Supreme Court. The City argues that the district court abused discretion when it equitably estopped the city from enforcing the zoning ordinance.

For an equitable estoppel claim there must be: 1.) Wrongful conduct on the part of the government, 2.)  the party must have reasonably relied on the wrongful conduct, 3.) The party must have incurred a unique expenditure in reliance on the wrongful conduct,  and 4.) The balance of the equities must weigh in favor of the estoppel.

The City argues that the mistake with the survey does not constitute “wrongful conduct,” because government action that is erroneous does not automatically constitute “wrongful” action, nor is it established by a simple mistake or imperfect conduct. The Supreme Court agreed.  In this case the government action was nothing more than a simple mistake. This does not fulfill the first element necessary for a equitable estoppel.

The district court had also found that the City acted wrongfully when granting a permit based on the plans. However, the City is entitled to rely on the accuracy of the documents provided by landowners. The Sarpals certified the information in the application packet was correct. There is no reason why the City should have noticed or corrected the error in regards to the survey. The district court abused its discretion when it dismissed the City’s claims against the Sarpals. The Minnesota Supreme Court reversed the Court of Appeals decision and remanded the case for further proceedings.

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Contempt order contingent on future action was not final, and therefore unappealable

by Melanie Thwing

City of Portage Des Sioux v.  Lambert
(Missouri Court of Appeals, October 26, 2010)

Klaus Lambert and Constance Alt own real property in the City of Portage des Sioux, Missouri. Early in 2004, the city filed a petition for an injunction against them for violations of several ordinances about the safety and sanitation of buildings on their properties. An order was entered on April 27, 2004 that within 60 days of the judgment a red building and a boat be removed from the premises.  The remaining structures on the property also were found to be in such a state of disrepair that they constituted a danger.  The April 27 order included a directive that those buildings be restored, elevated or demolished within 180 days of the judgment.

By October 2006 the Lamberts and Alts had not complied, and on October 19, 2006 a second judgment was entered extending the deadline another 60 days for the red building, and another 180 days for the other buildings.

On August 4, 2009, the city filed a motion for contempt against each defendant. After a hearing, the court entered an order adjudging defendants guilty of contempt of court because of their failure to comply with the April 27, 2004 and October 19, 2006 orders. The court ordered defendants to pay a fine of $100.00 per day “until such time as they have purged themselves of this contempt by demolishing and removing the first building and the remaining buildings on the property.” It further ordered that “to ensure defendants[‘] compliance with the judgment of April 27, 2004, as extended by the order of October 19, 2006, and this judgment/order, if [defendants] fail to demolish and remove the red/rust colored building and remaining buildings on the property by November 30, 2009, the [city] is hereby authorized to demolish and remove the structures.” 

The defendants appealed this August 2009 order; however, the Missouri Court of Appeals determined that the August 2009 order could not be enforced without an additional evidentiary hearing or external proof regarding defendants’ compliance (or noncompliance) with that part of the order requiring them to demolish their buildings by November 30, 2009.  This rendered the enforcement conditional upon the occurrence or nonoccurrence of a future act, the performance of which was outside the record, making the judgment “not final,” and unappealable at the present time.  “Generally, where the enforcement of a judgment is conditional upon the occurrence or nonoccurrence of future acts, the performance or non performance of which is outside the record, the judgment is deemed indefinite and unenforceable.”  The Court of Appeals could not rule on a future act, which may or may not occur. The defendants’ appeal was dismissed.

Missouri Courts, Procedural Issues, Zoning enforcement , ,
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Landowner’s defense in zoning enforcement action barred by issue/claim preclusion

Gary Taylor

by Gary Taylor

Sharkey v. Dubuque County Zoning Board of Adjustment
(Iowa Court of Appeals, November 24, 2010)

Dennis Sharkey owns two parcels in Dubuque County.  Parcel A is zoned M-1 Industrial and M-2 Heavy Industrial. Parcel B is zoned R-3 Single Family Residential.  The properties, and Mr. Sharkey, have been the subject of numerous disputes since the 1980s.  In 1988 Sharkey entered into a stipulated agreement with the county to resolve a zoning enforcement action.  Under the terms of the agreement Sharkey was “permanently enjoined from conducting or permitting any vehicle salvage operation or storage of any vehicles or junk” on the property.  In 1989 Sharkey was found in contempt of the order.  In 1994 Sharkey was convicted of unlawful storage and disposal of hazardous waste on the property and sentenced to prison.

In March 2007, the Dubuque County zoning administrator sent Sharkey two letters outlining problems with his property. In regard to Parcel A, the letter stated there were semitrailers, scrap metal, wood, appliances, and vehicles being stored outside on the property, in violation of zoning ordinances. In regard to Parcel B, the zoning administrator stated there were boats, junk cars and trucks, scrap metal, tires, and piles of wood being stored outside on the property, in violation of zoning ordinances. The letters also noted no flood plain management permit had been issued for either property.

Sharkey appealed the zoning violations to the Dubuque County Zoning Board of Adjustment, and at a June 5, 2007 hearing the Board determined both properties were being used as illegal junkyards and that the proper flood plain permits had not been obtained.  Sharkey challenged the decision in district court raising several defenses, including that he had a permissible existing nonconforming use and that the definition of “junkyard in the Dubuque County zoning ordinance was impermissibly vague.  The district court found that Sharkey was barred from using these defensed by the legal doctrine of “issue preclusion” – that these issues were decided when Sharkey and the county entered into the 1988 stipulated agreement.  Sharkey appealed to the Court of Appeals.

A party asserting issue preclusion – in this case Dubuque County – must show (1) the issue concluded in the previous action is identical to that in the present action; (2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition of the prior action; and (4) the determination of the issue was necessary and essential to the resulting judgment.  The Court of Appeals concluded that issue preclusion did apply.  The issue of whether Sharkey’s property is subject to the Dubuque County Zoning Ordinance, as well as the issue of whether the Flood Plain Management Ordinance applies, was determined in the 1988 action. The district court found the use of the property for auto salvage and the storage of vehicles and junk constituted a public nuisance and was not permitted under the Dubuque County Zoning Ordinance. The court also found Sharkey needed to follow the Dubuque County Flood Plain Management Ordinance.

The Court found that “claim preclusion” applied to Sharkey’s assertion that the term “junkyard” is impermissibly vague.  Claim preclusion involves the following elements: (1) the parties in the two actions were the same; (2) the claim in the second action could have been fully and fairly adjudicated in the prior case; and (3) there was a final judgment on the merits in the prior action.  The Court found that the issue concerning the definition of “junkyard” could have been fully and fairly adjudicated by Sharkey in 1988.

Finding sufficient evidence that Sharkey was impermissibly storing semitrailers, scrap metal, appliances, boats, junk cars and trucks, tires, and piles of wood on property in the M-2 Heavy Industrial District without a special use permit, the Court affirmed the decision of the district court.

Iowa Court of Appeals, Junkyards, Procedural Issues, Zoning enforcement , , ,
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