Daily Development for Tuesday, July 10, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu
I’m posting this a bit early because I leave
in the morning for Zuhai, supposedly a pleasant Chinese coastal city,
and the next day will cross the bridge to Macau. Internet access
may be spotty. Be sure to read at least the first one - it’s a
honey!!
Here is one of those ever popular (and
overlong) “theme” DD’s, where the editor has identified a number of
recent cases all dealing with the same subject matter, albeit different
legal issues. Today class, kiddies, is on Garages:
ZONING AND LAND USE; ZONING ESTOPPEL;
VARIANCES: Landowner may invoke estoppel doctrine to obtain zoning
benefits conferred in error where landowner has relied upon such
benefits and where the error resulted from a plausible, albeit
incorrect, reading of the zoning rules.
Hartung v. Baker, 2006 Westlaw 1063291, Docket No. BER-L-1499-05 (N.J. Super. L. 4/21/06) (unreported decision)
Although an unpublished opinion, this is a
really superb example of a winner in the elusive chase to invoke zoning
estoppel, and is worth a read for anyone with a problem in this
area.
In 1997 Hartungs purchased a home with a
detached garage. The garage was five feet five inches from their
neighbor’s boundary - within the five foot sideyard setback
requirement.
By 2004, the home was too cramped, and
Hartungs elected to undertake a major remodel. The remodel would
add a half story to the house and a wing that would extend to and
incorporate the garage into the structure of the house. They
submitted an informal inquiry to the city building department, with a
chart indicating setback dimensions for their project. A diagram
clearly indicated that the addition would result in the garage, now
incorporated into the house, being five feet, five inches from the
boundary, and the chart indicated that this satisfied the five foot
sideyard setback. Hartungs did not take into account the fact
that the zoning code had a ten foot sideyard setback for
residences. The five foot setback was only for free standing
ancillary structures.
The building department inspector also
missed the significance of connecting the house to the garage, and
certified the rough plans as approved. Hartungs then retained an
architect and undertook a more formal design which they submitted to
the same inspector for a building permit, and he again approved the
plans and issued the permit. The appeals court noted that the
inspector signed the architectural plans as “approved” less than six
inches from the point on the plans that showed the five foot five inch
side yard setback. Hartungs then set out to construct their
project, and four months of construction commenced, during which the
foundation works clearly showed that the completed project would be
within five feet, five inches of the boundary.
Ultimately, a neighbor complained to the
City and the building department issued a “stop work” order. In
the dispute the affected neighbors filed a tax appeal, alleging that
the proximity of the Hartungs’ new residence to their property
diminished the value of their property, entitled them to an adjustment
in their appraised value. The city cited this tax appeal as
evidence that it would be inequitable to permit Hartungs to continue on
their unlawful course of construction, due to an error that the city
characterized as “self created” by Hartungs.
The appeals court judge cited to Jantausch
v. Borough of Verona, 41 N.J. Super. 89, 94 (Law Div. 1956), aff’d 24
N.J. 126 (1957), as the “polestar” decision in this area.
Jantausch took the position that for an estoppel claim to lie,
administrative officials must have made an “erroneous and debatable
interpretation of the ordinance” in “good faith and within the ambit of
[their] duty” upon which the owner relied in good
faith. A subsequent New Jersey decision arguably
amended the test by stating the approval agency’s original decision
must be based upon “an issue of construction of the zoning ordinance or
statute, which, although ultimately not too debatable, yet was, when
the permit was issued, sufficiently substantial to render doubtful a
charge that the administrative official acted without any reasonable
basis or that the owner proceeded without good faith.”
The court characterized a successful zoning estoppel case as a kind of “holy grail” that many seek but few actual obtain. It provided a chronological list of all important New Jersey appellate decisions on the subject to demonstrate that a successful outcome for the landowner in these cases is indeed elusive. It then set forth nine factors that might be taken into account in the “totality of circumstances” analysis to establish whether estoppel is appropriate, assuming the preliminary requirement of Jantausch is satisfied:.
1. What is the size or scope of the deviation from the zoning ordinance?
2. What is the nature or quality of the deviation from the zoning ordinance?
3. What is the impact of the deviation from the zoning ordinance upon the immediate neighborhood?
4.What is the impact of the deviation from the zoning ordinance upon the overall zone plan and zoning ordinance?
5. What is the respective culpability of the parties?
6. What is the status of the party claiming the benefit of the equitable estoppel.
7. Is there evidence of collusion or the potential for collusion?
8. What is the harship to the party claiming the benefit of equitable estoppel?
9. What is the detriment to the public interest if the estoppel is applied?
Despite the city’s assertion that Hartungs
misled the City building inspector, which led to the erroneous
approval, the court held that the Jantausch test was satisfied
here. It characterized estoppel as the “proud champion of
justice, morality, and common fairness.” (Put that in your
“useful quote” file.)
Comment: The case is a real “keeper,” but
unfortunately states a relatively narrow basis for estoppel. It
is sensible, however. If the city official’s error is patent, it
is up to the landowner to identify the error and inappropriate to rely
on it. But it this the only situation in which other
jurisdictions will grant an estoppel?
Compare: The following cases are all prior DD’s.
Congregation Etz Chaim v. City of Los
Angeles, 371 F. 3d 1122 (9th Cir. 2004) (City will be estopped from
reneging on building permit after applicant has invested substantially
in project, even when permit issued erroneously and in violation of
settlement agreement that applicant previously had entered into with
City) (the editor thought this case to be clearly wrong); Bonaventure
International, Inc. v. Borough of Spring Lake, 350 N.J.
Super. 420, 795 A.2d 895 (App. Div. 2002) (When a municipality is aware
of long-established but unlawful use and implicitly approves it by
referring to it as apparently lawful in public documents, the
municipality is equitably estopped from challenging the expanded use as
against a good faith purchaser of the property); Equicor Dev. v.
Westfield-Washington Tp., 758 N.E.2d 34 (Ind. 2001) (Zoning
commission is subject to the doctrine of equitable estoppel when
it fails to point out a formal deficiency in a plat and an applicant
reasonably relies o
n the commission's silence);. Pingitore v. Town of Cave Creek, 981 P.2d 129 (Ariz. App. 1998). (Town government may be estopped from enforcing zoning ordinance that conflicted with construction plan where town officials had approved significant elements of proposed project based upon compliance with earlier ordinance.) But see: Ogar v. City of Haines, 51 P.3d 333 (Alaska 2002) Issuance of building permit for a part of landowner's project does not constitute an "assertion of a position" with respect to other aspects of the project sufficient to invoke equitable estoppel permitting the project to proceed.
ZONING AND LAND USE; VARIANCES;
INTERPRETATION:. A variance for the construction of a garage extending
beyond setback restrictions is limited to the contruction of a
structure for storage only, and cannot be relied upon to construct a
structure providing living space, even where the “footprint” might be
the same.
Lussier v. Zoning Board of Appeals of Peabody, 854 N.E.2d 1236 (Mass. 2006).
Lussier purchased a home in 1996. The
seller had obtained a variance for the home in 1995 (the “1995
variance”) to construct a one-story, two-car garage that, though
otherwise zoning compliant, maintained only a one foot setback rather
than the required twenty feet. After purchasing the property, Lussier
constructed the garage.
In 2003, Lussier sought and received a
building permit and began construction on a second story of the garage,
that would exceed the footprint, to be used as living space. Sheehans
own the abutting property burdened by the decreased setback.
Sheehans made a demand on the building inspector for an enforcement
action, and when refused, appealed to the zoning board of appeals of
Peabody. The Board granted the Sheehan’s request on two grounds:
(i) violation of the zoning ordinance’s setback requirement and (ii)
violation of the 1995 variance.
The Board found that the addition required a
new variance or modification of the 1995 variance, and overturned the
building inspector’s refusal for an enforcement action. Lussier
appealed.
The Superior Court entered summary judgment
for Lussier with no explanation. The Board and the Sheehans
appealed.
The Supreme Judicial Court, after
transferring the case from the Appeals Court, found that variances,
which are subject to limits of time, use and structure, are to be
sparingly granted. Therefore, the words of the variance are to be
construed against the individual and in favor of a board.
The Supreme Judicial Court looked to
language of the variance, a garage with stated dimensions. While
the term “garage” is not defined in the zoning ordinance, it does have
a common understanding and usage as being where motor vehicles and
household items are stored.. Because the use of a garage is for
such storage activities, it is significantly less disruptive and
intrusive than living space. Therefore, the court found that the
word garage must be read from the variance to not include living
space.
Finally, there were plans filed with the
initial variance application, but not incorporated into the variance
decision. Apparently these plans would have shown the full scope
of the “garage” project, including the second story and the proposed
dimensions. The court explained that while plans would have been
helpful in determining scope, they cannot be relied upon without such
SERVITUDES; RESTRICTIVE COVENANTS; BUILDING
RESTRICTIONS: GARAGES: Restriction permitting the construction of
a dwelling unit and a “private garage for not more than three cars”
restricts only the number of cars, and a lot owner under the
restriction could build more than one garage, but only if all garages
had collective capacity for not more than three cars.
Johnson v. Dawson, 856 N.E.2d 769 (Ind. App.
2006), also discussed under the heading: Servitudes; Restrictive
Covenants; Enforcement; Waiver.”
Plaintiffs sought to enjoin the construction
of a new detached two car garage on a property within their
subdivision. The subdivision covenants
specified that “[n]o structure shall be erected, altered, placed or
permitted to remain on any residential building lot other than one
detached single-family dwelling not to exceed two stories in height and
a private garage for not more than three cars.” Id. at 773.
In addition to the proposed detached garage,
Defendants’ lot already contained an attached two-car garage.
Plaintiffs argued that only one garage per lot was permitted under the
Covenants. Noting that covenants are a type of express contract,
the Court found that they are to be strictly construed and that
ambiguous provisions should be construed ion favor of the free use of
land.
Here the Court found the covenant to be
clear as to the number of cars for which a garage could be constructed
but ambiguous as to the number of garages allowed. In rejecting
Plaintiffs’ argument that the covenant allowed for the construction of
only one garage per lot, the Court noted the contrast between the
language allowing for “one detached single-family dwelling” and the
relatively ambiguous provision as to “a garage.” Concluding that
the description of the garage in the singular was not indicative of the
parties’ intent to restrict the number of garages, the Court agreed
with the trial court that the intention of the covenants was to limit
the number of cars for which garages may be erected and not the number
of garages. Accordingly, while the erection of a second garage on
Defendants’ property was not a per se violation of the Covenants,
erection of the garage such that total garage capacity on the lot
exceeded three cars did violate the Covenants.
Comment: Although the court found for the
plaintiffs here, this almost became a very anti-covenant
decision. The editor does not agree that the probable intent of
the parties was to permit more than one garage, but rather to restrict
the size of the single permitted garage to three car capacity. He
feels that the presumption against ambiguous covenants was almost taken
too far here.
ZONING AND LAND USE; PROCEDURE; STANDING:.
The Massachusetts statute barring unregistered foreign limited
liability companies transacting business in the Commonwealth (“LLC”s)
from bringing suit in state courts does not apply to administrative
proceedings.
Cottone v. Cedar Lake, LLC, 854 N.E.2d 456 (Mass.App.Ct. 2006).
Cottones obtained a building permit to erect
a garage and attached deck on their property. After the
improvements had been erected, Cedar Lake, LLC (“Cedar Lake”), the
owner of an abutting lot, hired a surveyor, who determined that the
Cottone’s garage was located about four feet from the property line and
that the deck encroached on Cedar Lake’s property. Cedar Lake
then filed a complaint with the building inspector, requesting
enforcement of the fifteen-foot set-back mandated by the applicable
zoning by-law.
The building inspector denied Cedar Lake’s
request for relief, and Cedar Lake filed an appeal to the seven-member
zoning board of appeals (the “Board”) which granted Cedar Lake’s
request for relief by a vote of five to two.
Cottones then brought an action in the trial
court, challenging Cedar Lake’s standing before the Board as well as
the authority of the Board to grant Cedar Lake’s request. The
trial court granted Cedar Lake’s motion to dismiss, and Cottones
appealed. The Court of Appeals affirmed. As Cottones had
removed the deck in question prior to commencement of the action, the
issues before the Court pertained only to the set-back requirement with
respect to the garage.
The first matter at issue was Cedar Lake’s
standing to appeal the decision of the building inspector to the
Board. Cedar Lake was a Connecticut LLC which had failed to
comply with the Massachusetts statutory requirement that foreign LLCs
transacting business in the Commonwealth register with the Secretary of
State. In arguing that Cedar Lake lacked standing before the
Board, Cottones cited M.G.L. c. 156C, §54, under which an unregistered
foreign LLC transacting business in the Commonwealth is barred from
bringing an action or seeking recovery in the state’s courts.
The Court rejected the argument that this
statute barred Cedar Lake’s appeal to the Board, finding no support in
the unambiguous language of that statue for Cottones’ contention that
it applies to administrative proceedings as well as judicial
proceedings.
Cottones then argued that Cedar Lake did not
qualify as a “person aggrieved” within the meaning of M.G.L. c. 40A,
§8, the statutory provision governing Cedar Lake’s appeal to the
Board. In support of this argument, Cottone cited Save the Bay,
Inc. v. Department of Pub. Util, 366 Mass. 667 (1975), which it read to
mean that standing under the M.G.L. c. 40A §8 extends only to those who
would have standing in a court of law. The Court rejected this
broad reading of Save the Bay, concluding that “standing at the zoning
board of appeals level is limited solely to an analysis of whether the
party has a specific and substantial interest, such that they are a
‘person aggrieved.’” Cottone at 459. Having asserted “a
plausible claim of a definite violation of a private right, a private
property interest, or a private legal interest,” Cedar Lake satisfied
the requirements for standing before the Board. Id. at 854,
(quoting Harvard Square Defense Fund, Inc. v. Planning Bd. Of
Cambridge,
27 Mass.App.Ct. at 492-493, 540 N.E. 2d 182).
The Court declined to decide whether Cedar
Lake would have had standing to appeal an adverse ruling by the Board,
noting however that it was not barred from defending itself in the
present action brought by Cottones.
Finally, the court rejected the argument
that the Board acted outside the scope of its authority by mandating
that Cottones take one of several specified actions within sixty days
of its decision, finding that Cottones were required only to submit a
plan for compliance by the specified date and further that any
requirement to demolish non-compliant structure would been within the
Board’s authority anyway. On the above grounds, the court
affirmed.
reference in the decision.
Comment: Note that although the issue of the
increased footprint might have decided the case, the court elected to
reach further and to define variances including “garages” and to limit
such variances to structures that fit that use.
In light of the many and varied uses of garages in modern times, it is interesting that the court felt it necessary to make such a leap. It is not uncommon, for instance, for hobbyists to use garages as workshops. They might use electric saws or other equipment that would cause considerably greater impact on neighbors than residential uses. Is such use somehow precluded by the terms of a variance? What about the general zoning law permitting, for instance, free standing “garages?” The editor sees the beginnings of a slippery slope here.
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