Preparing and Running Successful Board of Preparing and Running - - PDF document

Municipal Officials Training Academy Municipal Officials Training Academy Preparing and Running Successful Board of Preparing and Running Successful Board of Adjustment Meetings Adjustment Meetings

PR PREPARED AND PRES EPARED AND PRESENTED BY TED BY:

:

PAUL

AUL V.

• V. ROST

OST, ESQ SQ.

. CUNNINGHAM

UNNINGHAM, VOGEL OGEL & ROST OST, P.C.

P.C.

leg legal counselors to local government l counselors to local government

33 333 S.

• S. KIRKWOOD

IRKWOOD ROAD OAD, SUITE UITE 300

300

• ST. LOUIS

OUIS, MISSOURI ISSOURI 63122

63122 31 314.446.0 4.446.0800 800 www www.m .mun unici icipal alfi firm rm.com .com da dan@mu muni nicipa cipalf lfirm.co irm.com m

September 26, 2013 September 26, 2013

1 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

Preparing and Running Successful Board of Adjustment Meetings

Paul V. Paul V. Rost Rost

CUNNINGHAM, VOGEL & ROST, P.C. 333 South Kirkwood Road, Suite 300

• St. Louis, Missouri 63122

314.446.0800 paul@municipalfirm.com www.municipalfirm.com

Muni Municip cipal Officia l Officials s Trainin Training Academy Academy

September 26, 2013

I.

Board Overview

II.

Administrative Decision

III.

Preparing for the Meeting

IV.

Running the Meeting

V.

Types of and Standards for Granting Variances

VI.

Real Life Examples

• VII. Some Thoughts on Appeals

Today’s Topics

• I. Board Overview

2 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

Determine and vary the

application of regulations and restrictions of City in harmony with their general purpose and intent and in accordance with general or specific rules therein contained



§ 89.080 R.S.Mo.

What Can the Board do?

 Shall consists of 5 members and up to three 3 alternate members

may be appointed ‐‐ all members must be residents of the

• municipality. (§89.080 RSMo.)

 The Chairman or Vice Chairman may administer oaths and

compel attendance of witnesses. (§89.080 RSMo.)

Who Makes up the Board?

Board may hear and decide two (2) types of matters:

• 1. Appeals where it is alleged there is error in any order,

requirement, decision, or determination

 made by an administrative official in the

enforcement of any ordinance adopted pursuant to the zoning enabling statute (sections 89.010 to 89.140); and

• 2. All matters referred to it or upon which it is required to pass

What Can the Board Decide?

3 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

In exercising its powers to hear these types of matters:

 May vary or modify ʺapplicationʺ of regulation to avoid

ʺpractical difficulties or unnecessary hardship in … carrying out the strict letter of such ordinance.ʺ §89.090 R.S.Mo.

 Must act only to carry out the ʺspiritʺ of the ordinance, and  May not grant a variance without ʺcompetent and substantial

evidence.”

 Has all powers of the officer from whom appeal is taken.

Powers of the Board Decision Authority of the Board?

• reverse or affirm, wholly or partly; or modify the
• rder, requirement, decision or determination

appealed from

 Remember: Can add conditions to the approval

• make such order, requirement, decision or

determination as ought to be made

• II. Administrative Decision

4 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

 Written Determination by Zoning Official  Include reason(s) for denial  But not overly specific  Include right to appeal and cite time frame (if city has one)

Administrative Official’s Decision Notes

 Board may decide Appeals from: (1)

ʺaggrievedʺ persons

(2)

certain neighborhood organization or

(3)

an officer, department, or board of the city Affected by a decision of the administrative officer (89.100 RSMo.)

Appeal of Administrative Official’s Decision:

Who Can Appeal to the Board?

“…within a reasonable time, as provided by the rules of the board” Section 89.100

When Appeal Must be Taken

5 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

• III. Preparing for the Meeting

 A meeting is held at the call of the

Chairman or at such other times as the Board may determine. (89.080 RSMo. )

Who May Call the Meeting? Required Notice?

• The Board of Adjustment

shall:

 fix a reasonable time for the

hearing of appeal

 give “public notice”  give “due notice” to the

parties in interest

89.100 RSMo.

6 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

What does a “reasonable time” mean?

 There is no set rule as to what a

“reasonable time” is

 Chapter 89 silent on exact time  Check Code – some mandate 7 days –

not less than 10 days, etc.

 If Code is silent, check past practice  At minimum, comply with Sunshine

“Public Notice”

Sunshine Law OPEN MEETINGS:  Posting – 24 hours in advance

Notice – of time, place and purpose

• f meeting (agenda)

Check code for posting on property requirements

Who Are “Interested Parties” and What is Due Notice?

 Generally who are “Parties of Interest”?  The owner complaining of an order appealed to the Board  the public official making the order; and  Adjoining property owners  Neighboring property but not adjoining not interested parties  Due notice is satisfied by:  Posting on property or letter to property owners  Notice by publication is sufficient for adjoining property owners.

See Himmel v. Leimkuehler, 329 S.W.2d 264 (Mo. App. 1959)(Finding posting hearing notice on front and back of property was sufficient notice to property owner and publication was sufficient notice for parties of interest)

7 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

Others Who Must be Invited:

• 1. City Clerk or Secretary to:

 Keep minutes showing the vote (or

abstention) of each member

 Keep records of its examinations and

• ther official actions, immediately filed in
• ffice of board as a public record
• 2. Court Reporter to:

 “take down” all testimony, objections

thereto and rulings thereon

• 3. Administrative official that made decision

and any other required city officials

89.090 RSMo.

Suggested Evidence to Prepare:

 The Cityʹs zoning ordinance;  The application for permit;  The City officialʹs letter or memo denying the permit;  Site, building or elevation plans, if applicable;  The Petition for Appeal from Zoning Regulations;  Any photos or other depictions of the desired variance;  A copy of the notice of public hearing; and  Any correspondence from the applicant or City official regarding

the application for the permit.

Will Quorum be Present?

 The Board should not meet with less than four

(4) members.

 The concurring vote of four (4) members is

needed to decide in favor of the applicant or reverse any order, requirement, decision or determination of any administrative official. (§89.090 RSMo.)

8 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

• IV. Running the Meeting

Introduction of the Meeting

 The meeting must be open ‐‐‐ closed session NOT allowed.  The Chairman should call the meeting to order and state

that it was duly publicized.

 The Chairman or clerk shall call the roll of the Board.  State that the City Code and all ordinances are present for review and

made a part of the record.

 Explain Court Reporters’ role  Explain that City will present findings first and then applicant put on

his/her evidence

See Example Script on Handout

• It’s just like a trial

 exhibits  witnesses/sworn testimony  transcript of proceedings

• Appeal to Circuit Court

 By aggrieved person or the Board of Aldermen  defers to Board if “substantial and competent” evidence

supporting decision

 will not second‐guess decision

Procedure of Board of Adjustment Hearing

See Handout – Board of Adjustment Meeting Procedures

9 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

1. Frame the issue  2. Discussion through the Chair  3. Stick to the facts  4. Speak to the issue

Common Sense Rules

Issue

Remember: You Are Making a Record!

Decision

 Note: the Board may reverse or affirm wholly or partly or may

modify or add conditions to any decision appealed from. (§89.090 RSMo.)

 After discussion is complete the Chairman should ask for a

motion to grant, grant with conditions, or deny the variance.

 For the record, the motion should explain the variance requested  The motion should be seconded and a ROLL CALL VOTE should

be made. The variance can only be granted if four (4) members vote in favor.

 Announce the decision for the record

Findings of Fact and Legal Conclusions Required?

 Generally, no.  “A review of section 89.110 shows that there are no requirements of any kind in that

section to mandate specific or mandatory notice, required findings of fact, or any recommendation requirements . . .” State ex rel. Jackson v. City of Joplin, 300 S.W.3d 531, 534‐38 (Mo. App. S.D. 2009) (to supplement the lack of a findings requirement in § 89.110 would be improper because the written findings requirement of § 536.090 has no application in a § 89.110 certiorari review).

 See also Debold v. City of Ellisville, et al. ‐‐ S.W.3d ‐‐ (E.D. Mo. 2013)(Citing Joplin, and

finding that “Chapter 89 … does not require a municipal agency to make written findings

• f fact and conclusions of law.”)

 but see Complete Auto Body & Repair, Inc. v. St. Louis County, 232 S.W.3d 722, 726 (Mo.

• App. E.D. 2007) (Applying § 536.090 RSMo., and stating that in any contested case

decided on the merits, the administrative body is required to accompany its decision with findings of fact and conclusions of law.).

 Check City Code Requirements

10 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

Timing of Findings of Fact and Legal Conclusions?

 Passing written findings of fact and conclusions of law the night

• f the meeting opens you up to a due process claim

 Best Practice – approve findings of fact and conclusions of law at a

second meeting

 USCOC of Greater Missouri, LLC v. Village of Marlborough, 618 F.

Supp.2d 1055 (Allegation that Board adopted written findings of fact and conclusions of law the night of the meeting without reading such was enough state claim for procedural due process)

• IV. Types of and Standards for

Granting Variances

 exercised sparingly and only under exceptional circumstances  only for severe interference with landowner’s ability to use land  “mere inconvenience” not enough  E.g., rain and snow not enough

General Rules About Granting Variances

11 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

General Rules

 Applicant (not Board) must prove that he/she would suffer a practical

difficulty or an unnecessary hardship without variance

 Hardship or practical difficulty must be different from that suffered

throughout zone or neighborhood

 Burden of proof is on Applicant

Use and Area 2 Types of Variances

A use that is otherwise prohibited (i.e.,

allowing use of two homes on a single lot)

A use variance must be supported by

ʺunnecessary hardship”

Use Variances

12 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

 The Board may find unnecessary hardship only upon proof

that:

 Land cannot yield a reasonable return from any other

allowed use;

 Plight of owner is unique to that property and not general

condition of neighborhood nor personal difficulties;

 Proposed use will not alter “essential character” of the area

Use Variance – Factors

 Variance to a restriction on a use that is otherwise permitted (i.e.,

reducing a setback restriction)

 “Slightly less rigorousʺ standard than use variance — ʺpractical

difficulties”

 “property cannot be used for a permitted use without

coming into conflict” with ordinance (Wolfner)

 “severe interference” with ability to use land

Area Variances

How substantial is variation vs. requirement? Effect on available governmental facilities (fire, water,

garbage) caused by increased population density?

Substantial change in character of neighborhood? Substantial detriment to adjoining properties? Any alternative other than variance? Will interest of justice be served by allowing variance,

considering above factors and the manner in how “difficulty” arose?

Area Variance – Practical Difficulties?

13 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

• Detriment to adjoining properties
• Economic hardships (but generally must pertain to nature of the

property rather than the character of the owner)

• Did the property owner cause the difficulty or hardship?
• How substantial is variation vs. requirement?
• Affect on available governmental facilities (fire, water, garbage, etc.)

caused by increased population density?

• Would denial amount to a denial of any permitted use of the property?

Other Permissible Considerations

• V. Real Life Examples

A swimming pool

McMorrow v. Bd. of Adj. Town & Country, 765 S.W.2d 700 (Mo.App. 1989) (affirmed denial of area variance)

“The land is useable, and is being used, for the use permitted by the zoning ordinances as a single family residence.” Failed to show that swimming pool was “a necessity” or “that they will suffer undue financial burdens if

• ne is not built, or that their

satisfactory residential use of the property is impossible without a pool.”

14 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

A Carport

• Bd. of Aldermen v. Bd. of

Adjustment, No. SD 31095 (March 20, 2012) Note: Board of Aldermen appealed Board of Adjustment’s grant of the variance as unsupported by the evidence

 Substantial evidence in

support of variance only showed circumstances created by applicant.

 Hardship does not include

rain and snow, which constitute only an

• ccasional inconvenience

and is not a condition affecting that property greater than another property of the neighborhood. Behrens v. Ebenrech, 784 S.W.2d 827 (Mo.App. 1990) Noise and litter from busy road was not ʺdifficulty different from that suffered throughout the zone or neighborhood.ʺ

A Privacy Fence

• VI. Some Thoughts on

Court Appeals

15 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

What Effect Does an Appeal Have on the Board’s Decision?

 An appeal to Circuit Court and issuance of a writ

shall not stay proceedings upon the decision appealed from, but the court may, on application,

• n notice to the board and on due cause shown,

grant a restraining order. (89.110 RSMo.)

 Note: An appeal from an administrative officer to

the Board, stays all proceedings (89.100 RSMo.)

1st Request Denied … Second Request?

 Request for reconsideration before filing suit

 Rosedale‐Skinker Imp. Ass’n v. Bd. of Adjustment of City of St. Louis, 425 S.W.2d 929, 932 (Mo.

banc 1968) (Rehearing before a board of adjustment may be available where there is a material change in the condition of the property or in the plans of the applicant.);

 But see, State ex rel. Laidlaw Waste Systems, Inc. v. Kansas City, 858 S.W.2d 753, 755‐56 (Mo.

• App. W.D. 1993) (Limiting the Rosedale‐Skinker decision to zoning variance appeals and

further determining in the case of a conditional use permit that zoning boards enjoy no inherent power to rehear cases.).

 Res judicata – Veal v. City of St. Louis, 289 S.W.2d 7 (Mo. 1956).

 The fact that a council has already considered the same question under

the same set of facts does not bar future consideration.

 Broadway Apartments, Inc. v. Longwell, 438 S.W.2d 451, 457 (Mo. App. W.D. 1968). See

also Treme v. St. Louis County, 609 S.W.2d 706, 716 (Mo. App. E.D. 1980) in which the court held that a county council’s refusal to rezone a tract of land in question upon a prior request did not establish that a subsequent rezoning was in conflict with the county’s comprehensive plan.

 Some ammunition to remember:  Substantial Evidence Test

 Court can reverse or affirm, wholly or partly modify any decision (89.110 RSMo. )  Writ of Certiorari is the exclusive method for challenging board of

adjustment decision

 Cannot combine with declaratory judgment. Deffenbaugh Indus., Inc. v. Potts, et al.,

802 S.W.2d 520, 524 (Mo. App. W.D. 1990)

 No attorney fees provided for in Chapter 89 RSMo.  Costs awarded against City only if can show Board filed in bad faith (89.110

RSMo.)

 Applicant only has 30 days from decision to file appeal (89.110 RSMo.)  Petition must be verified (89.110 RSMo.)  Must be brought in court where property is located (89.110 RSMo.)  Ensure that all “interested parties” have been given notice of the suit  E.g., property owner, board of adjustment members, and all persons who

spoke on the record at the Board of Adjustment meeting. Wolfner v. Bd. of Adjustment of the City of Warson Woods, 39 S.W.3d 76, 78 (Mo. App. E.D. 2001)

Court of Appeal Thoughts…

16 September 26, 2013 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost

Questions

CUNNINGHAM, CUNNINGHAM, VOGEL VOGEL & & ROST, P.C. ROST, P.C.

le lega gal cou l counselors to loca to local gove governme ment

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• St. Lou

Louis, Miss Missouri 631 63122 314.446 .446.0800 .0800 paul@municipalfir icipalfirm.com .com

These materials and the related presentation are intended for discussion purposes and to provide those attending the meeting with useful ideas and guidance on the topics and issues covered. The materials and the comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any particular technique, device, or suggestion, or its legal advantages or disadvantages. Although we have made every effort to ensure the accuracy of these materials and the presentation, neither the attorneys presenting at this meeting nor Cunningham, Vogel & Rost, P.C. assume any responsibility for any individual's reliance on the written or oral information presented.

NOTES:

NOTIC

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