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21.03.2016 - Lake Hendricks Improvement Ass’n v. Planning & Zoning Comm’n - Supreme Court of South Dakota

Developers obtained a conditional use permit to build a dairy on Owner’s property in Brookings County. The City of Hendricks and others (collectively, City) filed a petition for writ of certiorari in circuit court challenging the permit. The circuit court affirmed the grant of the permit. City appealed. Developers filed a notice of review to challenge City’s standing but did not serve their notice of review on Owner. City moved to dismiss Developers’ notice of review/cross-appeal, arguing that Owner was a party required to be served with the notice of review. The affirmed, holding (1) Owner was a party required to be served with Developers’ notice of review, and Developers’ failure to serve Owner required dismissal of their notice of review/cross-appeal; and (2) neither S.D. Codified Laws 15-6-5(a) nor Developers’ alleged alignment of interests with Owner excused Developers’ failure to serve Owner.

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24.12.2014 - Dembiec v. Town of Holderness - Supreme Court of New Hampshire

Petitioners Daryl and Marcy Dembiec appealed a superior court order dismissing their petition for equitable relief. In October 2011, petitioners obtained a permit from the respondent, the Town of Holderness to construct a single family home. Before the permit was issued, the only structure on the property was a two-story boathouse with living quarters on the second floor. In April 2012, when construction of the home was substantially completed, the Town's compliance officer advised the petitioners that he would not issue a certificate of compliance for their new home because the existing boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they are in the same structure, such as in a duplex. The compliance officer informed petitioners that, before he could issue a certificate of compliance, they would need either to obtain a variance or remove "all plumbing" from the boathouse. Petitioners then applied to the zoning board of adjustment for an equitable waiver from the ordinance. Two intervenors objected to the petitioners' request. The board originally granted the waiver, but on rehearing, denied it. Petitioners later sought a variance. The board denied their application. The superior court ruled that it lacked jurisdiction to hear the petitioners' municipal estoppel claim because they had failed to exhaust their administrative remedies. Petitioners argued that the trial court had jurisdiction over their claim because they were not required to first raise it before the zoning board of adjustment. The Supreme Court was persuaded that appealing the compliance officer's decision to the zoning board would have been useless because the zoning board lacked the authority to grant the requested relief. Thus, exhaustion is not required. "The plain language of the pertinent statutes does not confer general equitable jurisdiction upon a zoning board. Nor could the zoning board have granted any relief to the petitioners under the applicable statutes or the Town's ordinance because their new home violated the ordinance, and they failed to meet the requirements for either a variance or an equitable waiver from dimensional requirements. Under those circumstances, we conclude that further pursuit of administrative remedies would have been futile, and, therefore, exhaustion of remedies is not required." Accordingly, petitioners' assertion of a municipal estoppel claim for the first time in the trial court was not barred by the exhaustion of administrative remedies doctrine. The superior court's decision was reversed and the matter remanded for further proceedings.

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10.11.2014 - Cleveland Clinic Found. v. Bd. of Zoning Appeals - Supreme Court of Ohio

Appellants, Cleveland Clinic Foundation and Fairview Hospital, sought approval to build a helipad on the roof of a new two-story addition on the Hospital. The Cleveland Board of Zoning Appeals (BZA) denied a permit to construct the helipad, determining that the Cleveland zoning ordinances did not permit the building of the helipad. The Cuyahoga County Court of Common Pleas reversed, concluding that the helipad was permissible under the ordinances. The court of appeals reversed. The Supreme Court reversed, holding (1) the court of appeals applied an incorrect standard of review in reversing the trial court; and (2) the trial court correctly found that under the current version of the Cleveland zoning ordinances, a helipad was a permitted accessory use for the Hospital.

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21.10.2014 - Lane v. Comm’r of Envtl. Prot. - Supreme Court of Connecticut

The Department of Environmental Protection (Department), acting through its office of Long Island Sound Programs (Office), ordered Plaintiffs, Gail and Thomas Lane, to remove a boardwalk and dock from their property because they had been installed without the statutorily required permits. The Office then denied Plaintiffs’ application for a certificate of permission to retain and maintain the structures and to install a new boardwalk pursuant to Conn. Gen. Stat. 22a-363b(a)(2). The Department upheld the Office’s rulings. The trial court dismissed Plaintiffs’ administrative appeal. The Appellate Court affirmed. The Supreme Court affirmed, holding that the Appellate Court properly interpreted section 22a-363b(a) in concluding that the trial court properly dismissed Plaintiffs’ administrative appeal.

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20.10.2014 - American Tower Corp. v. City of San Diego - U.S. Court of Appeals for the Ninth Circuit

ATC filed suit challenging the City's denial of its Conditional Use Permit (CUP) applications for three of its San Diego telecommunications facilities. ATC raised claims under, among other provisions, the California Permit Streamlining Act (PSA), Cal. Gov't Code 65956(b); the Federal Telecommunications Act (TCA), 47 U.S.C. 332; California Code of Civil Procedure 1094.5; and the Equal Protection Clause. The court reversed the district court's grant of summary judgment in favor of ATC on the PSA claim because the court concluded that the CUP applications were not deemed approved before the City denied them. The court affirmed the district court's grant of summary judgment on the TCA claim where the City evaluated the CUP applications under the proper provision of the Land Development Code and supported its decision to deny them with substantial evidence; the City did not unreasonably discriminate among providers of functionally equivalent services because ATC and the City are not "similarly situated" providers; and ATC has failed to show effective prohibition because it has not demonstrated that its proposals were the least intrusive means of filling a significant gap in coverage. ATC could not prevail on California Code of Civil Procedure 1094.5 because it does not have a fundamental vested right to the continued use of the Verus, Border, and Mission Valley Facilities. There was no violation of the Equal Protection Clause because the City's decision to deny the CUP applications was rationally related to the City's legitimate interest in minimizing the aesthetic impact of wireless facilities and in providing public communications services. Accordingly, the court reversed in part and affirmed in part.

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18.10.2014 - CEnergy-Glenmore Wind Farm #1 v. Town of Glenmore - U.S. Court of Appeals for the Seventh Circuit

CEnergy filed suit against Glenmore claiming a denial of its right under the Fourteenth Amendment to substantive due process and a violation of the town's state law obligation to deal in good faith. While CEnergy obtained a conditional use permit from Glenmore to develop a wind farm, the company failed to obtain required building permits in time to take advantage of a lucrative opportunity to sell electricity generated by wind turbines to a Wisconsin power company. The court concluded that the town board's decision to delay action on CEnergy's building permit requests could not have been arbitrary in the constitutional sense. Even if the board's treatment of the building permit applications had been arbitrary in the constitutional sense, CEnergy still would have failed to state a substantive due process claim where a plaintiff who ignores potential state law remedies cannot state a substantive due process claim based on a state-created property right. Accordingly, the court affirmed the judgment of the district court.

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18.10.2014 - Hollis v. Chestnut Bend Homeowners Ass'n - U.S. Court of Appeals for the Sixth Circuit

The Hollis family, with five children, lived in a house in Franklin, Tennessee. The two youngest children have Down Syndrome and developmental disabilities. The parents wanted to attach a sunroom to their house to permit the children to enjoy the therapeutic benefits of sunlight, as recommended by a pediatric cardiologist who treated the children. The house is in a residential subdivision, which is subject to restrictive covenants. The homeowners association rejected several applications for approval to build the addition. The Hollises sued under the Fair Housing Act, 42 U.S.C. 3604, individually and as “next friends” of the children. The district court dismissed their personal-capacity claims for want of standing and then, applying the McDonnell Douglas burden-shifting test to the claim under the reasonable-modification provision of the Act, awarded summary judgment to the association on the “next friend” claim. The Sixth Circuit vacated and remanded. Intent is irrelevant in reasonable modification claims: a reasonable modification plaintiff must prove the reasonableness and necessity of the requested modification; that she suffers from a disability; that she requested an accommodation or modification; that the defendant refused to make the accommodation or to permit the modification; and that the defendant knew or should have known of the disability at the time.

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15.10.2014 - Reardon v. Zoning Bd. of Appeals - Supreme Court of Connecticut

Plaintiff property owner sent a letter to a zoning enforcement officer for the Town of Darien, asserting that permits obtained by her adjoining neighbor had been illegally issued. Plaintiff received no response to that letter. Plaintiff filed an application to appeal. The town zoning board of appeals dismissed Plaintiff’s application for lack of a timely appeal and lack of a “decision” from which an appeal could lie. The trial court dismissed Plaintiff’s appeal from the decision of the board, concluding that substantial evidence supported the board’s determination that the town zoning enforcement officer did not make a decision that could be appealed. Plaintiff appealed, contending that the zoning enforcement officer rendered a decision that could be appealed either because (1) he actually made a determination regarding the merit of the violations alleged in her letter that he declined to communicate, or (2) because town zoning regulations obligated him to respond to or act upon the illegality alleged in Plaintiff's letter. The Supreme Court affirmed, holding that the zoning enforcement officer’s action or inaction with respect to Plaintiff’s letter did not give rise to an independent “decision” from which an appeal to the board would lie.

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15.10.2014 - T-Mobile Northeast LLC v. The Loudoun Cty. Bd. - U.S. Court of Appeals for the Fourth Circuit

T-Mobile filed suit under the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B), challenging the Board's denial of T-Mobile's application for permits to build two telecommunications towers in Loudoun County - one disguised as a bell tower and one disguised as a silo on a farm. The district court concluded that the Board improperly denied T-Mobile's application for the silo tower and affirmed the Board's decision denying permits for the bell tower. The court concluded that the Board's decision to deny T-Mobile's Bell Tower Site application was supported by substantial evidence; did not have the effect of prohibiting the provision of personal wireless services in view of the possibility of other alternatives; and was not made on the basis of health concerns about radio frequency emissions. In regards to the Silo Site, the court concluded that while the aesthetic concerns that the Board gave for denying T-Mobile's application were supported by substantial evidence, its decision to base the denial of T-Mobile's application on improper environmental concerns about radio frequency emissions was prohibited by the Act. Accordingly, the court affirmed the judgment of the district court.

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15.10.2014 - Doherty vs. Planning Board of Scitutate - Planning Board of Scituate

Plaintiff was the owner of two adjacent unimproved lots in the town of Scituate. The lots were located in a flood plain and watershed protection district (FPWP district). Plaintiff applied for special permits from the Town’s planning board to construct residential dwellings on the lots. The Board denied the applications, concluding that Plaintiff had not demonstrated that her lots were not “subject to flooding” within the meaning of the applicable zoning bylaw. A land court judge affirmed the Board’s decision. The appeals court reversed. The Supreme Judicial Court reversed, holding that the appeals court adopted an incorrect definition of the phrase “subject to flooding,” and the land court judge adopted the correct meaning of the phrase.

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To portal www.spatialplandev.gr δημιουργήθηκε στα μέσα του 2014 από την εταιρεία Spatial Planning & Development Ε.Π.Ε.

Επιστημονικός Υπεύθυνος της προσπάθειας αυτής έχει οριστεί ο κ. Κωνσταντίνος Τσάντζαλος, Δικηγόρος Αθηνών, πτυχιούχος της Νομικής Σχολής του Εθνικού και Καποδιστριακού Πανεπιστημίου Αθηνών, κάτοχος μεταπτυχιακού τίτλου σπουδών (MSc) στο γνωστικό αντικείμενο Χωροταξίας – Πολεοδομίας – Περιφερειακής Ανάπτυξης του Τμήματος Μηχανικών Χωροταξίας, Πολεοδομίας & Περιφερειακής Ανάπτυξης της Πολυτεχνικής Σχολής του Πανεπιστημίου Θεσσαλίας και υπ. Διδάκτωρ του Τμήματος Πολιτικής Επιστήμης και Δημόσιας Διοίκησης της Σχολής Οικονομικών και Πολιτικών Σπουδών του Εθνικού και Καποδιστριακού Πανεπιστημίου Αθηνών.

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