Agenda - Planning Commission - 09/05/2013

Home

Zoning Bulletin July 25, 2013 I Volume 7 I Issue 14 notice was required, and charges that city violated its due process rights Citation: Edelhertz v. City of Middletown, New York, 714 F.3d 749 (2d Cir. 2013) The Second Circuit has jurisdiction over Connecticut, New York, and Vermont. SECOND CIRCUIT (05/08/13)—This case addresses the issue of whether municipal amendment of zoning laws without individual notification to affected property owners violates procedural due process. The Background/Facts: Since the mid-1990's, the Melvyn Edelhertz and Helaine Edelhertz Revocable Living Trust ("Edelhertz") owned a nonowner occupied, multidwelling building (the "Property") in an R-1 zoning district in the City of Middletown, New York (the "City"). In August 2010, Edelhertz entered into a contract to the sell the Property to Composite, LLC. Due diligence related to the sale of the property re- vealed that, in July 2009, the City had enacted a zoning amendment (the "Zoning Amendment") aimed at eliminating nonowner occupied multiple dwellings in various zoning districts in the City, including the R-1 zone. Prior to enactment, the City had given notice of the proposed enactment of the Zoning Amendment to any interested person through a "Public Hearing Notice" published in the legal classified advertisements of the local paper. Pursuant to the Zoning Amendment, Edelhertz's prop- erty was now a legal nonconforming use, which, by July 2014, would become a prohibited and unlawful nonconforming use. Composite eventually withdrew its offer to purchase the Property. Edelhertz brought a legal action against the City. Edelhertz alleged that the City's action in adopting the Zoning Amendment was adjudica- tive because it was "based on a host of targeted facts" and was "retro- spective in nature looking back over several years of examined activity." As an adjudicative action, Edelhertz maintained that the City was required to provide interested parties (namely all affected multiple dwell- ing owners) with individual notice (by mail) as to the proposed adoption of the Zoning Amendment. Edelhertz alleged that the City's failure to provide Edelhertz with such individual notice violated Edelhertz's procedural due process rights guaranteed by the 14th Amendment to the U.S. Constitution. The district court disagreed with Edelhertz. It found that the City's proposed enactment of the Zoning Amendment was a legislative action that did not entitle Edelhertz to due process protection of individual no- tice prior to the enactment. Edelhertz appealed. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Second Circuit, affirmed the © 2013 Thomson Reuters 3