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November 10, 2018 I Volume 12 I Issue 21 Zoning Bulletin <br />owners are typically required by law to obtain a final administrative de- <br />cision regarding the application of land use regulations to the affected <br />property. The court acknowledged that both the United States Court of <br />Appeals, Ninth Circuit, and California courts, recognized a "limited <br />futility exception" to that requirement. The court explained that the futil- <br />ity exception is "narrow" and "requires some development proposal by <br />the landowner" where the prospect of denial of that proposal by the mu- <br />nicipal agency is "inevitabl[e]" or "certain (or nearly so)." <br />Here, the court found that the Landowners' stated justifications for not <br />exhausting administrative remedies were "unconvincing." The court <br />found that the record revealed no decisions by the City Council on the <br />question of whether anyone might build on a property located in Zone 2. <br />Thus, the court concluded that, based on the record, it could not find that <br />the "[C]ity's response to any given application for exclusion [from the <br />moratorium] [was] a foregone conclusion." <br />The court also concluded that since the Landowners had failed to <br />exhaust their administrative remedies, their constitutional challenge to <br />the moratorium was a facial challenge (i.e., based only on the language <br />of the moratorium and not on how it is/was applied). The court found <br />nothing in the language of the moratorium that was unconstitutional <br />(i.e., amounting to an unconstitutional taking) <br />See also: Monks v. City of Rancho Palos Verdes, 167 Cal. App. 4th <br />263, 84 Cal. Rptr. 3d 75 (2d Dist. 2008), as modified on denial of reh'g, <br />(Oct. 22, 2008). <br />See also: Calprop Corp. v. City of San Diego, 77 Cal. App. 4th 582, <br />91 Cal. Rptr. 2d 792 (4th Dist. 2000). <br />Variance After zoning board <br />approves variance, city council <br />challenges decision <br />City council contends zoning board's grant of <br />variance without finding hardship violates state <br />statutory requirements <br />Citation: Rochester City Council v. Rochester Zoning Board ofAdjust- <br />ment & A., 2018 WL 4266716 (N.H. 2018) <br />NEW HAMPSHIRE (09/07/18)—This case addressed the issue of <br />whether a zoning board of appeals is required to explicitly address un- <br />necessary hardship in its written decision granting a zoning variance. <br />The Background/Facts: Donald and Bonnie Toy (the "Toys") owned <br />4 © 2018 Thomson Reuters <br />