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CURRENT
DECISIONS ON STATE AND FEDERAL LAW IN PLANNNING AND ZONING Bruce M. Kramer
Maddox Professor of Law Texas Tech University School of Law Lubbock, Texas § 1.01 Introduction § 1.02 Land Use Controls and the Fourteenth Amendment [1]
Federal Cases
[a] Village of Willowbrook v. Olech
[b] Forseth v. Village of Sussex
[c] Woodwind Estates, Ltd. v. Gretkowski
[d] Acierno v. New Caste County
[e] Herr v. Pequea Township
[f] McDonald’s Corp. v. City of Norton
Shores
[g] Vigilante v. Village of Wilmette
[h] Tandy Corp. v. City of Livonia
[i] Scott v. City of Seattle
[j] Burnham v. City of Salem
[k] Odlan Holdings, LLC v. City of New
Orleans
[n] Katz v. Stannard Beach Association [2]
State Cases
[a] FM Properties Operating Co. v. City
of Austin
[b] Turbat Creek Preservation, LLC v. Town
of Kennebunkport
[c] Masi Management, Inc. v. Town of Ogden
[d] Hanlon v. Town of Milton
[e] Thorp v. Town of Lebanon
[f] St. Raymond v. City of New Orleans
[g] East Lampeter Township v. County of
Lancaster § 1.03 Land Use Controls and the Fifth Amendment [1]
Regulatory Takings
[a] Agripost, Inc. v. Miami-Dade County
[b] SGB Financial Services, Inc. v. Consolidated
City of Indianapolis-Marion County
[c] John Corp. v. City of Houston
[d] Jim Sowell Construction Co. v. City
of Coppell
[e] Rau v. City of Garden Plain
[f] Town Council of New Harmony v. Parker
[g] Shemo v. Mayfield Heights
[h] San Remo Hotel L.P. v. City and County
of San Francisco
[i] City of Annapolis v. Waterman
[j] Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency
[k] Santa Monica Beach, Ltd. v. Superior
Court
[l] Isla Verde International Holdings,
Inc. v. City of Camas
[m] Bonnie Briar Syndicate, Inc. v. Town
of Mamaroneck
[n] Lambert v. City and County of San Francisco [2]
Vested Rights
[a] McPherson v. City of Manhattan Beach § 1.04 Land Use Controls and the First Amendment [1]
Religion Clauses
[a] Boyajian v. Gatzunis
[b] Concerned Citizens of Carderock v.
Hubbard
[c] Mayor and Board of Aldermen v. Hudson
[d] Bethlehem Christian Fellowship, Inc.
v. Planning and Zoning Commission
[e] Jesus Fellowship, Inc. v. Miami-Dade
County
[f] First Baptist Church of Perrine v.
Miami-Dade County
[g] Camp Ramah in the Poconos, Inc. v.
Zoning Hearing Board [2]
Free Speech Clause
[a] Adult Entertainment Facilities (AEFs) [i] City
of Erie v. Pap’s A.M. [ii] Charette
v. Town of Oyster Bay [iii] Wise
Enterprises, Inc. v. Unified Government of Athens-Clarke County [iv] David
Vincent, Inc. v. Broward County [v] Young
v. City of Simi Valley [vi] Lim
v. City of Long Beach [vii] Alameda
Books, Inc. v. City of Los Angeles [viii] Diamond
v. City of Taft [ix] D.H.L.
Associates, Inc. v. O’Gorman [x] Ward
v. County of Orange [xi] Nightclub
Management, Ltd. v. City of Cannon Falls [xii] T
Backs Club, Inc. v. Seaton [xiii] Nightclubs,
Inc. v. City of Paducah [xiv] People
v. Studio 20, Inc. [xv] McKillop
v. Onslow County [xvi] City
of New York v. “The Black Garter” [xvii] Harkins
v. Greenville County [xviii] P.M.
Realty & Investments, Inc. v. City of Tampa [xix] Wise
Enterprises, Inc. v. Unified Government of Athens-Clarke County [xx] Bugsy’s,
Inc. v. City of Myrtle Beach [xxi] Aguirre
v. State [xxii] State
v. Russo\ [xxiii] Town
of Seabrook v. Vachon Management Co. [xxiv] City
of New York v. Warehouse on the Block, Ltd. [xxv] T
& A’s, Inc. v. Town Board of the Town of Ramapo [xxvi] City
of Dallas v. North by West Entertainment, Ltd. [xxvii] Kismet
Investors, Inc. v. County of Benton [xxviii] St.
Louis County v. B.A.P., Inc. [xxix] City
of New York v. Les Hommes [xxx] West
End Pink, Ltd. v. City of Irving
[b] Signs and Billboards [i] Knoeffler
v. Town of Mamakating [ii] Adams
Outdoor Advertising v. City of East Lansing [iii] Lawson
v. City of Kankaee [iv] North
Olmsted Chamber of Commerce v. City of North Olmsted [v] City
of Painesville Building Department v. Dworken & Bernstein Co., L.P.A. [vi] Marathon
Outdoor, LLC v. Vesconti § 1.05 Subdivision, Planned Unit Development
and Site Plan Regulation [1]
Impact Fees
[a] American Fabricare v. Township of Falls
[b] Volusia County v. Aberdeen at Ormond
Beach, L.P.
[c] Home Builders Association of Dayton
and the Miami Valley v. City of Beavercreek
[d] Greater Franklin Developers Association,
Inc. v. Town of Franklin
[e] Cimato Bros., Inc. v. Town of Pendleton [2]
Subdivision Regulation, Site Plan Review and Development Regulation
[a] Association of Rural Residents v. Kitsap
County
[b] Equicor Development, Inc. v. Westfield-Washington
Township Plan Commission
[c] Medina County Commissioners Court v.
The Integrity Group
[d] Miles v. Foley
[e] County Council of Prince George’s County
v. Dutcher
[f] Heidrich v. City of Lee’s Summit
[g] Village of Key Biscayne v. Tesaurus
Holdings, Inc.
[h] Hill v. City of Clovis
[i] Smith v. City of Eufaula Planning Commission
[j] Urrutia v. Blaine County
[k] Cathedral Park Condominium Committee
v. District of Columbia Zoning Commission
[l] Davis v. Planning Board of the City
of Somers Point
[m] Blaha v. Board of Ada County Commissioners
[n] City of Colorado Springs v. Securcare
Self Storage, Inc.
[o] In re Appeal of Busik
[p] Madison River R.V. Ltd. V. Town of
Ennis
[q] Largent v. Klickitat County § 1.06 NIMBY Syndrome [1]
Telecommunications Facilities
[a] Petersburg Cellular Partnership v.
Board of Supervisors
[b] 360 Communications Co. of Charlottesville
v. Board of Supervisors
[c] Southwestern Bell Wireless Inc. v.
Johnson County Board of County Commissioners
[d] Industrial Communications & Electronics,
Inc. v. Town of Falmouth
[e] SNET Cellular, Inc. v. Angell
[f] New York SMSA Limited Partnership v.
Town of Clarkstown
[g] Cellular Telephone Co. v. Zoning Board
of Adjustment of Ho-Ho-Kus Borough
[h] APT Pittsburgh Limited Partnership
v. Penn Township Butler County
[i] Omnipoint Communications Enterprises,
L.P. v. Newtown Township
[j] Omnipoint Communications Enterprises,
L.P. v. Charlestown Township
[k] Cellular Telephone Co. v. Zoning Board
of Adjustment of Borough of Harrington Park
[l] Vertical Broadcasting, Inc. v. Town
of Southampton
[m] Airtouch Cellular v. City of El Cajon
[n] Telecorp Realty, LLC v. Town of Edgartown
[o] Omnipoint Communications, Inc. v. Planning
& Zoning Commission
[p] APT Minneapolis, Inc. v. Eau Claire
County
[q] AT&T Wireless PCS Inc. v. City
of Atlanta
[r] Omnipoint Communications MB Operations,
LLC v. Town of Lincoln
[s] Cellco Partnership v. Town of Douglas
[t] Freeman v. Burlington Broadcasters,
Inc.
[u] Adelman v. Town of Baldwin
[v] Telespectrum, Inc. v. Public Service
Commission of Kentucky
[w] SBA Communications, Inc. v. Zoning
Commission
[x] Northeast Towers, Inc. v. Zoning Board
of Adjustment
[y] Stephenson v. Town of Garner
[z] APT Pittsburgh Limited Partnership
v. Lower Yoder Township
[aa] Proper v. Southwestern Bell Mobile
Systems [2]
Group Homes
[a] Marriott Senior Living Services, Inc.
v. Springfield Township
[b] Borden v. Planning and Zoning Commission
[c] Welsh v. Town of Amherst Zoning Board
of Appeals
[d] County of Charleston v. Sleepy Hollow
Youth, Inc.
[e] Light of Life Ministries, Inc. v. Cross
Creek Township
[f] San Miguel v. City of Windcrest
[g] Mackowski v. Planning & Zoning
Commission of Town of Stratford [3]
Mining and the Extractive Industries
[a] Gun Lake Association v. County of Aitkin
[b] Fred McDowell, Inc. v. Board of Adjustment
[c] Skenesborough Stone, Inc. v. Village
of Whitehall
[d] Native Village of Eklutna v. Board
of Adjustment
[e] Vulcan Materials v. Greenville County
Board of Zoning Appeals
[e] Wende v. Board of Adjustment of the
City of San Antonio [4]
Agricultural Operations
[a] Richardson v. Township of Brady
[b] Perkins v. Madison County Livestock
& Fair Association
[c] In re Conditional Use Permit
[d] R.L. Hexum & Associates, Inc. v.
Rochester Township Board of Supervisors
[e] Dail v. York County
[f] Wilbur Residents for a Clean Neighborhood
v. Douglas County
[g] Friends of the Creek v. Jackson County
[h] Altenburg v. Board of Supervisors of
Pleasant Mound Township [5]
Sanitary Landfills
[a] State ex rel. Teefey v. Board of Zoning
Adjustment
[b] Metropolitan Development Commission
of Marion County v. Schroeder
[c] Demolition Landfill Services, LLC v.
City of Duluth
[d] St Johns County v. Smith § 1.07 Potpourri [1]
Discretionary Permits
[a] Special Exceptions – Conditional Use
Permits [i] Harris
v. Jefferson County Board of Zoning Adjustment [ii] Florida
Power & Light Co. v. City of Dania [iii] Kosalka
v. Town of Georgetown [iv] City
of Alpharetta v. Estate of Sims [v] Tenderloin
Housing Clinic, Inc. v. Astoria Hotel, Inc.
[b] Variances [i] Pinnell
v. Kight [ii] Nolan
v. City of Eden Prairie [iii] City
of Battle Creek v. Madison County Board of Adjustment [iv] Craik
v. County of Santa Cruz [v] Baker
v. Brownlie [vi] French
Quarter Citizens for Preservation of Residential Quality, Inc. v. New
Orleans City Planning Commission [vii] North
Avenue Properties, LLC v. Zoning Board of Appeals [viii] Stop
& Shop Supermarket Co. v. Board of Adjustment [ix] Cole
v. Board of Adjustment of the City of Huron [2]
Intergovernmental Conflicts
[a] Ventura v. City of Seattle
[b] Village of Ridgefield Park v. New York,
Susquehanna & Western Railway Corp.
[c] Florida East Coast Railway Co. v. City
of West Palm Beach
[d] City of Bridgeton v. City of St. Louis
[e] Kent County Aeronautics Board v. Department
of State Police
[f] In re Commercial Airfield
[g] City of New Rochelle v. Town of Mamaroneck
[3]
Exclusionary Zoning
[a] City of Freeport v. Vandergrifft
[b] Town of Telluride v. Lot Thirty-Four
Venture, LLC
[c] King v. City of Bainbridge
[d] Bixler v. LaGrange County Building
Department
[e] Home Builders Association of Maine,
Inc. v. Town of Eliot
[f] Caswell v. Pierce County
[g] Montgomery Crossing Associates v. Township
of Lower Gwynedd
[h] Toll Brothers, Inc. v. Township of
West Windsor
[i] Dews v. Town of Sunnyvale
[j] Northfield Development Co., Inc. v.
City of Burlington [4]
Rezoning
[a] Wenatchee Sportsmen Association v.
Chelan County
[b] Falcke v. County of Douglas
[c] Boris v. Garbo Lobster Co., Inc.
[d] Buck Lake Alliance, Inc. v. Board of
County Commissioners
[e] Willoughby v. Wolfson Group, Inc.
[f] Town of Florence v. Sea Lands, Ltd.
[g] Schrank v. Pennington County Board
of Commissioners
[h] McCollum v. City of Berea
[i] Harmon City, Inc. v. Draper City
[j] Northern Trust Bank/Lake Forest, N.A.
v. County of Lake
[k] Harvey v. Town of Marion
[l] Perry-Worth Concerned Citizens v. Board
of Commissioners of Boone County
[m] Home Depot U.S.A., Inc. v. City of
Portland
[n] Briarwood, Inc. v. City of Clarksdale
[o] Rossano v. Townsend [5]
Nonconforming Uses
[a] Money v. Zoning Hearing Board of Haverford
Township
[b] Kirkpatrick v. Village Council for
the Village of Pinehurst [6]
Historic Preservation
[a] City of Jacksonville v. Huffman
[b] Handicraft Block Limited Partnership
v. City of Minneapolis
[c] Fabiano v. City of Boston
[d] Galveston Historical Foundation v.
Zoning Board of Adjustment [7]
Accessory Uses
[a] Kam Hampton I Realty Corp. v. Board
of Zoning Appeals
[b] National Cathedral Neighborhood Association
v. District of Columbia Board of Zoning Adjustment
[c] Dupont Circle Citizens Association
v. District of Columbia Board of Zoning Adjustment
[d] State v. Alawy § 1.01
Introduction The past year saw an increase in both
state and federal reported cases with the number rising near 400 in
state cases and over 50 for federal cases.
There were several Supreme Court decisions rendered that will
have a direct or indirect impact on governmental regulation of land
use including Village of
Willowbrook v. Olech. The
federalization of land use control as it affects the telecommunications
industry was made apparent by the many cases arising under the Telecommunications
Act, a trend seen in the past two years. In addition, there appears to be a growing
number of “omnibus” constitutional challenges to zoning decisions based
on regulatory taking, substantive or procedural due process and equal
protection grounds. In most
cases I will report these “omnibus” attacks in the section which appeared
to be the most important to the deciding court.
This article follows the basic outline used in prior years.[1] As in past years I have intentionally omitted
analyzing cases where the main issues are primarily parochial in nature,
although as the author I reserve the right to include cases that may
appear to the reader to be narrow and limited, but due to some quirk
in my personality appeals to my intellectual curiosity. § 1.02 Land Use Controls and the Fourteenth
Amendment [1]
Federal Cases
[a] Village of Willowbrook v. Olech[2]
I have noted an increase in the number
of equal protection claims brought in the land use context in past few
years.[3] The Supreme Court has encouraged this type
of claim in Olech. The Olechs sought to connect their parcel to
the Village’s water supply. The
Village agreed to do so, but only on the condition that they grant the
Village a 33- foot easement. The
Olechs objected because they believed that Village policy was to require
only a 15-foot easement. After
a three month delay, the Village agreed to the connection and only required
a 15-foot easement. The Olechs then sued under § 1983 asserting
that the Village spitefully and intentionally denied them the hook-up
because of prior ill will between Village officials and them. The issue is whether or not an equal protection claim can be asserted
for a “class of one” where no wider class is alleged to have suffered
discrimination. The court looked to the purpose of
the Equal Protection Clause that is “to secure every person within the
State’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its improper
execution through duly constituted agents.”[4] The allegations of the complaint are sufficient
to raise questions of fact as to whether the Village’s demands were
“irrational and wholly arbitrary.”
That is the standard for an equal protection claim and thus the
complaint should not have been dismissed.
The court did not agree with the Seventh Circuit’s opinion that
also found an equal protection cause of action based on the “ill will”
allegations made by the Olechs.[5] Justice Breyer, in offering a short concurring
opinion, tries to deal with the Village concern that § 1983 actions
will be springing forth like dandelions from run-of-the-mill zoning
disputes based on this rather broad reading of the Equal Protection
Clause. Almost by definition, individual zoning decisions
treat one landowner differently than another. If that factual circumstance will allow for
a § 1983 action to be filed almost every permit denial may end up in
federal court. Justice Breyer
would deflect that trip to the federal courthouse by emphasizing Judge
Posner’s view that the critical factor is not a wrong or incompetent
decision, but the existence of an “ill will” or personal animus driving
the decision.[6] Merely alleging that a decision lacks a rational
basis should not be the basis for filing a § 1983 equal protection claim
according to Breyer.[7]
[b] Forseth v. Village of Sussex[8] The owners submitted a preliminary
plat to the Village Plan Commission for approval. The Plan Commission objected to a number of features of the plat,
including its failure to delineate wetlands and the inclusion of several
lots with direct access to an arterial street.
Preliminary plat approval was granted in September 1993. Shortly thereafter a new president of the village
board was elected who had openly opposed the development. The final plat was rejected, due in part to
the president’s insistence on a new wetlands survey that showed substantially
more acreage as wetlands than was shown in the preliminary plat. The owners alleged that the Commission at the
president’s insistence conditioned final plat approval on the sale of
a buffer tract to the president at below market rates. Eventually the final plat was approved and then the owners filed
this omnibus § 1983 action alleging substantive due process, equal protection
and regulatory takings claims. The key issue on the due process claim
is whether the Hamilton Bank ripeness doctrine applies.
If it applies, not only does the agency have to make a final
decision, but the owner must seek state judicial relief before filing
a federal court action. While
there were some earlier decisions that hinted that Hamilton Bank
should not apply to due process claims,[9]
the type of claim involved here requires the owner to seek state judicial
relief. In essence, the owner
is asserting that his property interest is being taken for a private
purpose. Whether couched as a regulatory taking or as
a substantive due process violation the policies underlying Hamilton Bank
are equally applicable.[10] Clearly having not exhausted their available
state remedies, the owners have not complied with the exhaustion component
of Hamilton Bank.
The court observed that “litigants who neglect or disdain their
state remedies are out of court, period.”[11] Thus from both the ripeness doctrine perspective
and the substantive law perspective, the 7th Circuit makes
it difficult to file “garden-variety” land use cases in federal court
under the guise of substantive due process violations. As to the equal protection claim, however,
the court categorized such claims as surrogates for takings claims where
ripeness would be required or as bona fide claims where the ripeness
doctrine is not applicable. Relying
on its own decision in Olech and the clear allegations of malice
and ill will, the court finds that there were sufficient grounds for
the equal protection claim of the owner.
There appeared to the court to be actions bordering on official
oppression and misconduct if the allegations regarding the village board
president were proven.
[c] Woodwind Estates, Ltd. v. Gretkowski[12]
In a case decided a week after Olech,
the Third Circuit reaffirmed its approach to substantive due process
claims and followed the Seventh Circuit’s lead in zeroing in on intentional
governmental official misconduct as actionable under the 14th
Amendment. Plaintiffs were developers who sought approval
to build a subdivision on 75 acres of land. The proposed project involved “low income” housing and the developer
had received substantial tax credits from the state to subsidize the
project. The development plan
was originally submitted in March 1996.
The attorney for the Township planning commission advised the
commission that the plan met all of the subdivision criteria.
Opposing neighbors were also present at the hearing and voice
several objections. They urged
that the project be defined as a planned unit development (PUD) and
not a straight subdivision. After
a six month delay the commission voted to recommend a denial of the
subdivision plan. The Board of Supervisors voted unanimously
to deny approval. No reasons
were originally given until the attorney for the neighbors informed
the Board that they needed to provide reasons for the denial.
That attorney then drafted a denial letter giving several reasons. The letter, in slightly amended form, was then
sent to the developers. Included
in the letter was the conclusion that the proposal was for a PUD and
because the proposal lacked several ordinance requirements for a PUD,
it needed to be resubmitted within a year as a PUD.
The plaintiff then filed this action asserting that the actions
of the Commission, Board and several individual officials violated its
substantive due process rights. As noted by the district court, the
Third Circuit’s definition of what is a protectible property interest
under a substantive due process claim is ill-defined.
The Third Circuit has been more willing than other circuits in
finding a protectible property interest, if the governmental decision
affects the use and enjoyment of property.[13] In this case, the subdivision ordinance is
interpreted to give the Commission and Board no discretion if the objective
standards are met. The facts
undisputably showed that the standards had been complied with. Thus the court finds that the plaintiffs have
a protectible property interest. Once that determination is made the
developer must show that the governmental action was “arbitrary, irrational,
or tainted by improper motive.”[14] Those types of issues are clearly fact issues
to be decided by the trier of fact.
The motives of the township in denying the permits can be reviewed
by a jury to determine whether the permits were denied for an improper
purpose. In this case, the defendants had no legitimate
basis for inquiring about the socioeconomic background and income levels
of the proposed purchasers of the housing. Likewise, the adoption by the Board of a letter proposed by an attorney
representing the opposing neighbors also raises a fact issue that a
jury may look at. The court
also refused to uphold the summary judgment as to the liability of the
individual officials because there was a fact issue as to whether they
were entitled to good faith immunity.
The result in this case clearly aligns it with the Seventh Circuit
in Olech regarding the importance
of motive in making decisions. While
it is often said that courts are not to look at the motive of legislators,
the Third Circuit decision would allow, if not require, the Township
officials to be placed on the stand and be asked questions about why
they voted to deny the subdivision permit.
This approach is obviously a two-edged sword. It may deter bad decisions made by officials for the wrong purpose,
but it also may allow juries to second guess such decisions and open
up legislators to questions that may hinder the legislative process.
[d] Acierno v. New Castle County[15]
The owner filed a development plan
at a time the parcel was zoned for PUD.
The parcel was downzoned to a residential district that did not
allow for the proposed development of 322 apartment units. After a first round of litigation removed the individual defendants,
the parties agreed to a trial on the merits of the substantive due process
claim, after the owner waived any claims for monetary relief. Unlike Gretkowski, which seemingly toughens the
Third Circuit’s view of what is a protectible property interest, this
court goes back to the position that ownership of property vel non is
worthy of substantive due process protection.[16]
Normally one does not have a vested right or a protectible interest
in existing zoning. The downzoning
decision may have been irrational, but certainly under a ‘strict entitlements’
approach it would not be remediable using a substantive due process
theory. Nonetheless the court finds that plaintiff
had a protectible property interest in the existing zoning classification. The second part of the test is whether
the downzoning decision was truly irrational or arbitrary. The owner sought to assert an “improper motive”
test as well, based in part on Gretkowski. But the court distinguished Gretkowski on the basis that it involved
administrative actions taken to enforce existing zoning laws. This case, in part, involves a legislative rezoning decision and
is to be judged solely on whether it was rationally related to a legitimate
government interest. Thus, the
motives of the legislators is irrelevant.[17] The City offered two reasons for the downzoning;
the first would make the parcel more compatible with the surrounding
neighborhood that was largely single family residential and the second
related to traffic congestion in the area. Both of these reasons are legitimate governmental objectives and
the downzoning decision advances those objectives. Therefore, the substantive due process claim fails. But as to the decision of the council to void
the record plan of the owner, the court determined that it was an administrative
decision and thus inquiry into the motive is appropriate. The court did not grant the relief sought but
asked for further briefing on this issue in light of the court’s earlier
finding that the rezoning decision itself was rationally based. As to the owner’s equal protection
claim, the court again noted the limited judicial review afforded such
claims in the absence of a fundamental right or a suspect classification. The showing that the council did not downzone
other land similarly situated does not show irrationality. Because of the traffic and other concerns of
the council, the equal protection claim was likewise barred. A similar finding was made as to the administrative
decision to void the record plan. Plaintiff finally sought relief under
the state law doctrine of equitable estoppel. Under Delaware law the doctrine could be raised as a defense against
the enforcement of a zoning regulation where: “(1) a party, acting in
good faith, (2) on affirmative acts of a municipal corporation, (3)
makes expensive and permanent improvements in reliance thereon, and
(4) the equities strongly favor the party seeking to invoke the doctrine.”[18]
There was no evidence in the record showing that the owner made expensive
or permanent improvements on the land.
The only proven expenditure was $38,500 spent on architectural
and engineering fees. The court
did not allow the owner to show the acquisition cost of the site since
the acquisition was not made in reliance on any affirmative act of the
city.
[e] Herr v. Pequea Township[19]
This is a substantive due process case
arising out of a ten year battle by the developer to build a proposed
industrial park on 45 acres of land.[20] In exploring whether the developer has a protectible
property interest, the court does not merely accept the notion that
ownership vel non is sufficient. Instead,
the court applies a vested rights analysis to see whether the developer
was entitled to a permit at some time during the ten year process.
Under Pennsylvania law,[21]
once a development proposal is submitted, the regulations in place are
not subject to change for a period of five years after the preliminary
plan is approved. Although there
was a dispute as to whether the five year period was tolled, the court
found that the developer has a protectible property interest in having
the now-repealed industrial zoning district applied to the parcel in
question and to a public sewer hook-up.
In applying the second part of the
substantive due process test, the court had no difficulty showing that
the rezoning decision was not arbitrary or irrational. The township had a strong interest in preserving agricultural land
that was served by the rezoning. Then
the court went on to discuss the improper motive aspect of this test,
using such language as “tainted by improper motive,”, “motivated by
bias, bad faith or improper motive,” or for “reasons unrelated to the
merits.”[22] Normally this issue must be decided by the
trier of fact and is not subject to summary judgment motions. But in this case the court found no evidence
of bias, improper motive or bad faith.
The fact that several township officials expressed strong opposition
to the development does not make a prima facie case of improper motive. In fact, the court found that the township
acted out of a strong desire to restrain development. That is not an improper motive and it is not up to a court to second-guess
the elected officials on public policy issues. There was no evidence of injustice or unfairness
at a level sufficient to trigger substantive due process concerns. Therefore, the court granted the township’s
motion for summary judgment.
[f] McDonald’s Corp. v. City of Norton Shores[23] Plaintiff leased a pad in a K-Mart
shopping center located in a general retail zoning district. The ordinance allowed for the operation of
a fast food restaurant. The
ordinance also required site plan approval for such facilities. Plaintiff submitted a site plan showing a drive-through window.
Plaintiff had submitted expert testimony and reports showing
only a minimum amount of traffic flows during peak meal hours.
Plaintiff also showed that in 5 years the city had only rejected
3 site plans. The city eventually rejected a revised site
plan because of vehicle and pedestrian traffic concerns. Plaintiff then filed this omnibus constitutional
attack on the city’s decision claiming a regulatory taking, violations
of substantive due process and equal protection rights and pendent state
claims. The court easily dismissed the regulatory
taking claim because it is unripe under Hamilton Bank. Michigan clearly
recognized an inverse condemnation cause of action at the time the federal
suit was filed so plaintiff should have filed this claim in state court.
As to the substantive due process claim, the court applied the
deferential review first stated in Pearson v.
City of Grand Blanc.[24] While plaintiff’s evidence disputed the reasons
given by the city for rejecting the site plan, the court found the decision
rationally related to the legitimate governmental interest of dealing
with vehicular and pedestrian traffic concerns. On the equal protection claim, the
court initially noted that in zoning cases substantive due process and
equal protection arguments tend to merge together.
Plaintiff tried to rely on Olech and its class of one claim to attack
the city’s decision. Again,
the court fell back on its very deferential rational basis review, even
after Olech.
Plaintiff must prove that the city treated it differently than others
similarly situated and that there was no rational basis for that difference
in treatment. Even though McDonald’s
provided evidence of disparate treatment by the approval of site plans
for other fast food restaurants with drive-through windows and other
restaurants in the same area, the court found that those cases were
not similarly situated. None
of the drive-through restaurants abutted the street that the proposed
McDonald’s was to be located on and the nearby restaurants that did
abut that street did not have drive-through operations.
Thus the court granted the city’s motion for summary judgment
and refused to exercise jurisdiction over the state law claims.
[g] Vigilante v. Village of Wilmette[25] In March 1999, plaintiff purchased
two parcels of land and demolished the single family home that had been
built on both parcels. She then
sought permission to allow separation of ownership of the two parcels,
in order to construct two new homes.
The Village denied the permit and plaintiff filed this omnibus
takings, due process and equal protection claim.
The court followed Hamilton
Bank and Forseth by applying the ripeness doctrine
to both the takings and substantive due process claims. Available state remedies must be used however
the plaintiff characterizes her causes of action. Since Illinois allows for an inverse condemnation
remedy for regulatory takings and substantive due process violations,
plaintiff must first file her claim in state court. The equal protection claim was not treated
the same as the takings and due process claims. If the equal protection claim was not a subterfuge for a takings
claim then Hamilton
Bank would not apply. While
the plaintiff asserted that she was being treated differently from others
that were similarly situated, the court applied the traditional rational
basis test since no fundamental rights or suspect classifications were
involved. Merely asserting differential treatment and
that plaintiff’s proposed development would not cause any harm do not
make a prima facie equal protection case.
The court concluded: Perhaps
the Village is concerned about the character of the neighborhood, something
it does not think was affected by the previous variances, but would
be affected by granting hers. The
cumulative effect of small changes, each of which by itself is insignificant,
may make a difference here.[26]
A more deferential scope
of judicial review is hard to find.
The court clearly is discouraging future claimants from making
equal protection claims in the absence of some type of smoking gun,
raising the Olech
issue of whether motive is required to show equal protection violations
in the typical land use scenario.
[h] Tandy Corp. v. City of Livonia[27] Plaintiff executed an option contract
to purchase a tract of land if the city rezoned the tract from professional
office to general commercial use. The
land was rezoned in 1995 and the plaintiff purchased the tract. In 1997, the city voted to rezone the property
back to the professional office district. At that time Tandy was in active negotiations to sell the tract,
but those fell through when the city rezoned the tract. Plaintiff then
filed this omnibus constitutional suit alleging a regulatory taking
and violation of its substantive due process and equal protection rights. Prior to the onset of the litigation, the tract of land was sold
for an amount that exceeded Tandy’s purchase price by some $ 300,000.
The city argued that Tandy did not
have a protectible property interest under the due process clause. In the Sixth Circuit, the owner must show either
a “legitimate claim of entitlement” or a “justifiable expectation” regarding
the commercial zoning of the property. The city strenuously argued that no party has a property interest
in an existing zoning classification even where they engage in acts
relying on that classification. But
the court found that the actions taken by the plaintiffs, including
the expenditure of substantial funds in reliance on the existing zoning,
were sufficient under Michigan law to create a protectible property
interest.[28] The court’s view of what constitutes a protectible
property interest is in line with the Third Circuit’s view, but clearly
contrary to the view taken in the First, Second, Seventh and Ninth Circuits.
The court found that the Lucas
regulatory takings claim could not be sustained where the parcel was
sold during the pre-trial period for over $ 6,000,000. The fact that Tandy expected to make a profit on the sale does not
trigger a Lucas taking. The second
part of the regulatory takings test is similar to the substantive due
process test, namely whether there the rezoning substantially advances
a legitimate state interest. The
city proffered several reasons for the rezoning including uniformity
of zoning for the subject property, compatibility with the surrounding
uses and the development of the area as a corporate park.
After a hard look at the reasons and the alleged nexus between
the rezoning and those interests, the court determined that factual
issues remained that could not be resolved on the city’s motion for
summary judgment. The court was clearly influenced by the quick
change of heart by the city and wanted to have a factual record to understand
why the land was rezoned twice in a two year period.
[i] Scott v. City of Seattle[29] Plaintiffs are the owners of several floating structures that were
moored at a recreational marina. The owner of the marina received a
notice of violation (NOV) from the city that the structures violated
various provisions of the city’s land use ordinances.
Later a final Land Use Order was sent to both the marina owner
and the plaintiffs. As a result of the city’s actions the marina owner
terminated the leases with the plaintiffs, requiring them to move their
structures. Plaintiffs then sued the city alleging that
the city’s actions violated their due process and equal protection rights. The court found that the plaintiffs
did not have a protectible property interest because the NOV and
the order did not encumber their property interest in the structures. There can be no deprivation of a property interest
until such time as a court hears the case and determines that a violation
of the ordinance occurred. The
order did not effect the contractual rights or legitimate business expectations
of the plaintiffs. It was the
marina owner, not the city, that terminated the leasehold relationship.
The marina owner could have reacted to the NOV and order in any
number of ways. The fact that the owner decided to eliminate
the problem by terminating the lease did not mean that the city’s actions
caused the plaintiffs to be deprived of their property interests. Plaintiffs made a second substantive
due process claim by contending that the City imposed requirements on
them and the marina owner that were not contained within the land use
ordinances. Only where actions of the city would shock
the conscience of the court can a party assert a substantive due process
claim. Here the issue was whether
the structures were vessels and thereby exempt from city regulation. The city’s interpretation, according to the
court, was reasoned and reasonable in light of the purposes of the shoreland
management statutes. Thus, this
claim must also be dismissed. Plaintiffs also asserted a procedural
due process claim since they did not receive notice of the NOV and did
not participate in the informal hearings that resulted from the marina
owner’s discussion of the NOV with city officials. The informal review process triggered by the NOV did not lead to
the final order. The plaintiffs
were given notice of the order and an opportunity to participate prior
to its issuance. The court
also dismissed the equal protection claim under the rational basis test. Plaintiffs had urged that they were discriminated against because
they owned square-hulled structures that were treated differently than
other seaborne structures. The
court found a rational basis for the disparate treatment.
Finally, the court dismissed the pendent state claims since no
federal claims survived the city’s motion for summary judgment.
[j] Burnham v. City of Salem[30] Plaintiff asserted that the city, through
a series of actions taken over a 4 year period, violated the due process
and takings clauses. Some of
the alleged actions include wrongfully removing mooring and tackle from
a river, wrongfully denying various licenses and permits, filing frivolous
lawsuits against the plaintiffs and refusing plaintiff the right to
repair a broken water main in front of their business.
The court found that for plaintiffs
to show a violation of their procedural due process rights, they must
prove that they had a protectible property interest that the city interfered
with without adequate process. Since
almost all of the permits and licenses that plaintiffs sought and the
city denied were discretionary permits, the court concluded that it
was dubious whether they had a property interest in the issuance of
those permits. If plaintiffs were asserting that the defendants illegally departed
from state or locally mandated procedures in making the permit decisions,
there is no due process violation, so long as there were adequate post-deprivation
processes available.[31] The evidence showed that the plaintiffs were
able to bring appropriate state court action to remedy the apparent
attempt by the city to remove or eliminate the plaintiff’s business
from the city. Thus the adequacy of post-deprivation remedies
was clearly evident so that no procedural due process violation could
be proven. The court refused
to allow a procedural due process claim based on “motive or intent”
to go to the jury. A bad faith refusal to follow state law in
local administrative proceedings does not constitute a violation of
the due process clause so long as there are adequate post-deprivation
remedies available. Many of the same factual predicates
asserted in the procedural due process claim were repeated in the substantive
due process claim, although the plaintiffs added the lodging of numerous
frivolous criminal complaints against them to this claim. Unlike the procedural due process claim where
motive or intent is basically irrelevant, it became the central issue
in the substantive due process claim.
The court looked at what was done, rather than how or when it
was done. The court applied the traditional “shock the
conscience” approach to substantive due process and found that even
if the plaintiff’s alleged facts were shown to be true and that there
was a city attempt or crusade to chase the plaintiffs from the city,
that would not constitute a substantive due process violation. The clear hostility between the city and the plaintiff was evident,
but not sufficient to rise to a constitutional violation. The First Circuit’s view of substantive due
process traditionally has limited the cause of action to cases dealing
with invasions of personal security or privacy and not business relationships. Finally, the plaintiff alleged that
several actions of the city constituted a taking of property without
just compensation. The basis
for their claim was that the city’s actions did not substantially advance
a legitimate state interest. It
was clear that no Lucas
taking was alleged since the business was still in operation. The physical confiscation of a mooring was
done consistent with the city’s interest in protecting navigation. There was no showing that the plaintiffs had
a property interest in keeping the mooring where it was located. Finally the court found that the placement
of some barriers on the plaintiffs land were not a taking under Loretto
even though they involved a physical invasion of plaintiff’s land. The physical occupation was temporary and plaintiff
could show no injury. That reading
of Loretto
and First
English was arguably wrong in that a temporary taking could
have occurred, although the issue of damages would have been problematic.
[k] Odlan Holdings, LLC v. City of New Orleans[32] Plaintiff’s petition to have a zoning
map change from multi-family residential to some type of commercial
district was rejected. Plaintiff
filed this omnibus due process and equal protection challenge. The court summarily dismissed the equal protection
claim because the complaint only included conclusory allegations that
are not sufficient as a matter of law.
As to the substantive due process claim, the court also dismissed
the complaint, emphasizing that typical zoning disputes represent “infertile
grounds” for due process claims. The
court noted that it would be rare for a party seeking a discretionary
permit or decision to be able to assert a protected property or liberty
interest. Requests for zoning map changes clearly involved the discretionary
authority of the city planning commission thus negating any substantive
due process claim. The court, however, kept alive the lawsuit for further
factual development of the alleged procedural due process claim based
on the failure of the commission to hold a hearing on plaintiff’s request.
[l] Katz v. Stannard Beach Association[33] Notwithstanding the Olech
admonition that it was not deciding whether intent was an element of
the equal protection claim, courts have seemingly adopted the Posner
view that it is an indispensable part of the cause of action.
In this case, plaintiff owns a home within a locality created
by special state legislation and governed by the defendant that is composed
of all record owners of property within the locality.
The Association is empowered to enact by-laws and provide for
governance by a board of directors.
One of the plaintiffs replaced a cement walkway and placed a
hedge over a right of way that had apparently been used by other residents
to access the beach. The Association votes to initiate litigation
against the plaintiff to remove the obstruction and have an easement
declared giving residents beach access.
The Association was dismissed from the first suit and re-filed
a second suit. Plaintiffs allege that the state court litigation
brought by the Association violates their due process and equal protection
rights and constitutes a taking of property without just compensation. The court refuses to abstain from hearing
this case under the Pullman doctrine since the plaintiffs’ claims
will not depend on the outcome of the state court litigation. On the equal protection claim, plaintiffs rely
on Olech.
The court agrees that plaintiff can constitute a class of one. The court, however, then relies on pre-Olech
cases that require the plaintiff to allege that when compared with others
similarly situated the plaintiff was selectively treated and that selective
treatment was based on impermissible considerations including malicious
or bad faith intent to injure a person.
The court relies on the Breyer concurring opinion that adopts
the Posner view that animus, ill will or vindictiveness is required
and not pled in this case. On the due process claims, the court
finds that plaintiff does not show a protectible liberty interest in
her good name and reputation. It
is not merely the loss of reputation that triggers a loss of a liberty
interest, but it requires something else, such as an effect on a vested
property interest. Since no further injury was alleged there was no
cognizable liberty interest. Likewise the court finds no invasion of a
protectible property interest through the act of soliciting and filing
the litigation seeking to establish an easement.
While there may have been some misconduct in the Association
elections authorizing the litigation, there was no direct impact on
her property interest. The
court further finds that the regulatory takings claim is not ripe for
review under Hamilton Bank
since there has been no final resolution of the state court action.
Only if the Association is successful in claiming an easement
will a takings claim arise. [2]
State Cases
[a] FM Properties Operating Co. v. City of Austin[34] While not involving either the Due
Process or Equal Protection Clause, this case involves the difficult
constitutional problem of unlawful delegations of legislative authority. In response to Austin’s aggressive regulation
of land use and water quality in their extra-territorial jurisdiction
(ETJ), the state enacted a statute that allowed certain landowners to
opt out of local regulation upon meeting one of two required options.[35] The first method was for the landowner to maintain
background levels of water quality in the waterways. Monitoring sites had to be set up to collect
water quality data. The second
method was to capture and retain the first 1.5 inches of rainfall from
developed areas. No monitoring
was required for the second method.
In both cases the plans had to be developed by a registered professional
engineer. Review by the Texas Natural Resources Conservation
Commission (TNRCC) differed depending on the size of the acreage.
For parcels between 500-1000 acres, the owners had to submit
their water quality plans to TNRCC for approval. For parcels over 1000 acres, the plans were
effective immediately upon recordation, although TNRCC had an opportunity
to review those plans. TNRCC review is limited to seeing if the plans
will meet one of the two options. Landowners
may amend their plans from time to time.
TNRCC may deny approval of these amendments only if it finds
that the amended plan will impair the achievement of the plan’s objectives. A landowner may appeal a TNRCC denial and the
burden of proof is on TNRCC. The
plans and review by TNRCC are not subject to public hearings. Once a water quality zone is designated all
municipal land use, water quality or environmental control ordinances
that are inconsistent with the zone and its plan are not enforceable. Further restrictions on municipal action include
that the city may not collect fees or assessments or exercise the power
of eminent domain within a zone until it annexes the zone. But a city may not annex an area covered by
a plan until 90% of the plan’s facilities have been completed or 20
years have passed since the zone was designated.
The city sued several landowners in its ETJ who sought plan designations
under the statute. The city’s
claim was based on several theories including the unconstitutional delegation
of legislative power to private owners, the violation of municipal home
rule provisions in the Texas Constitution and that the statute was an
impermissible special or local law.
The majority opinion only dealt with the facial non-delegation
challenge.[36] After noting, and then ignoring, the
presumption of constitutionality in facial challenges, the majority
made the necessary finding that the Legislature had in fact delegated
its plenary legislative authority to private landowners.
Legislative authority involves the making of laws of private
conduct and setting public policy.
The Legislature may delegate that power to coordinate branches
of government or even to private individuals or institutions without
violating the constitution’s reservation of that power to the Legislature.[37] The majority found that the power to exempt
themselves from otherwise applicable police power regulation constituted
a delegation of legislative power to the private landowners.[38] Clearly the state, in other circumstances,
has reserved to itself the power to regulate water quality issues. Giving the landowners the power to make those
decisions relating to matters of public interest must constitute a delegation
of legislative power. Once a delegation is found, the court
applied the 8 factor Boll Weevil analysis to determine if the
delegation was valid. These
8 factors are:
Any time a court develops
a multi-factor analysis one must ask whether the court is engaging in
a judicial or legislative function.
The court noted that there is not a hierarchy within the 8 factors,
although the court did suggest that several factors should be weighed
more heavily than others. The
court found that the first and fourth factors are particularly important
in private delegation cases because of the potential impact on the public
interest. Not surprisingly, the majority found that both
of those factors weigh against the statute’s constitutionality. Delegations of power to private bodies, such
as accreditation agencies, national standard setting commissions and
ADR organizations are widespread. Applying
an 8 factor test to each of these types of delegations may require the
court to take an intrusive role in making what are essentially policy
decisions regarding the size and powers of governments.
In Texas, which lacks a history of strong governmental regulatory
bodies, delegations to private entities has been a way to avoid empowering
governmental entities. This
decision, as well as the Boll Weevil decision will make it hard for the state government
to use surrogate private parties to achieve desired goals. In this case the court could have attempted
to affirmatively limit the powers of home rule cities in their ETJs. Instead, they chose to empower private parties
to exempt themselves from those powers. That option appears to be foreclosed to the legislature in the future.
[b] Turbat Creek Preservation, LLC v. Town of Kennebunkport[40] A developer purchased a parcel containing
4 cottages and a boathouse. It
obtained a permit to renovate the 4 cottages and sell them as separate
condominium units. The application
did not separately identify the boathouse as a separate residential
unit. Evidence showed that the
boathouse had been occasionally used for overnight stays and a gathering
place for residents and guests in the cottages.
The developer obtained a permit to modernize the boathouse. The submitted plans did not show an intent
to change its use to a residential unit.
Nonetheless, the developer made extensive renovations making
the boathouse usable for seasonal residential use.
Several years later the plaintiff was served with a notice of
violation of the town’s zoning ordinance.
The developer asserted two due process
violations. The first was that
the town attorney appeared at the zoning board of appeals hearing stating
that he was representing the enforcement official and not the ZBA. The second was that the chair of the ZBA had
prejudged the case by preparing in advance an outline of issues and
potential findings based on extra-record evidence.
The court found that neither allegation was sufficient to violate
the procedural due process rights of the developer. The attorney’s role in the proceeding was appropriate and the pre-hearing
review of materials was not prejudicial to the developer’s rights. Under the town’s zoning ordinance the
boathouse was located in a resource protection zone where no residential
uses are allowed. Only if the
boathouse was a NCU could it continue to be used or rebuilt. In reviewing the ZBA’s decision not to treat the boathouse as a
NCU, the court applied the substantial evidence test. Only if the proposed use as a guesthouse was the use that existed
prior to the enactment of the zoning ordinance will it qualify as a
NCU. The developer argued that the only change was
a change in the intensity of the use not the type of use. The court found, however, substantial evidence
in the record to support the ZBA’s finding that the present use was
far in excess of the occasional overnight use that had occurred in the
distant past. Even if the use
was of the same kind, the evidence also showed that there had been a
non-use of the boathouse for any purposes for a period in excess of
12 months. Under the zoning ordinance such a period of disuse constituted an
abandonment of the NCU. Finally,
the court rejected the developer’s equitable estoppel claim based on
the issuance of the renovation permit because the developer affirmatively
misled the town official regarding the scope of the planned renovations.
[c] Masi Management, Inc. v. Town of Ogden[41] Last year I analyzed the lower court
opinion in this case that challenged on due process and equal protection
grounds various decisions of the town that were allegedly taken to delay
action on the plaintiff’s development proposal in order to favor a competing
developer’s proposal.[42] The court agreed with the lower court opinion
that no substantive due process claim was asserted since plaintiff did
not have a legitimate claim of entitlement to the continuation of the
multi-family zoning classification that had attached to the land he
was seeking to develop. It was
entirely within the discretion of the town to determine how to provide
housing units for senior citizens.
The court refused to expand the substantive due process cause
of action to include decisions motivated by ill will or bad faith since
that would federalize all local land use decisions where an allegation
was made that a decision was made under questionable or unfair circumstances.
Ill will or improper motive are relevant considerations under
the plaintiff’s equal protection claim, but the court found that the
plaintiff failed to show that the town acted “with an evil eye and an
unequal hand, so as practically to make unjust and illegal discrimination
between persons in similar circumstances.”[43] Without citing either the Supreme Court or
7th Circuit decision in Olech the court seemed to embrace the 7th
Circuit standard that emphasized motive as the gravamen for an equal
protection claim in the land use context.
[d] Hanlon v. Town of Milton[44] In 1990, Hanlon sought a CUP from the
town to operate a gravel quarry on his agricultural property. The CUP was denied, although at the same meeting,
two other CUP applications were approved, both being sought by members
of the Planning and Zoning Committee.
State court review reversed the town’s decision and led to a
second decision in 1994 that again denied the CUP.
A second round of state judicial review led to an eventual affirmance
of the decision. In 1997, Hanlon
then filed this action in federal court under § 1983 alleging that the
town deprived him of his due process and equal protection rights by
its failure to approve the CUP. The
district court granted the town’s motion for summary judgment.
The Seventh Circuit then sought an answer to the following certified
question: “when a municipal administrative determination gives rise
to an equal protection claim for money damages actionable under § 1983,
must this equal protection claim be brought and heard in a Wis. Stat.
§ 68.13 certiorari proceeding brought by the litigant?”[45] The Town argued that failing to bring
the equal protection claim in the state court action required the federal
court to dismiss the action based on the claim preclusion doctrine. The court found that while a certiorari proceeding
to review a local zoning decision may raise constitutional claims to
prove that the decision was unreasonable, arbitrary or oppressive, that
is not the same as bringing a § 1983 equal protection action seeking
monetary damages. Remedies under
the state procedure only affect the local decision.
They do not include any possibility of receiving money damages. Since the issue of monetary damages could not
have been raised in the state court action, the § 1983 claim could not
have been as part of that proceeding.
In addition, the failure of the plaintiff to voluntarily join
the separate § 1983 claim with the state court review action does not
preclude him from bringing a later federal action.
Certiorari review is limited and cannot be expanded to include
the type of damages sought under § 1983.
While joinder was possible, failure to join will not preclude
the plaintiff from filing separate state and federal actions.
[e] Thorp v. Town of Lebanon[46] The Thorps own a 255-acre tract of
land that prior to 1994 was zoned for rural development. At that time the town engaged in a comprehensive
revision to its zoning ordinance. The town requested that the county amend its official zoning map
to incorporate the town’s changes.
The Thorp tract was reclassified to general agricultural uses. The Thorps challenged the rezoning and simultaneously
filed a request to rezone the non-wetlands and flood plain areas.
The town voted to rezone approximately 165 acres back to rural
development. The county, however, refused to go along with the town’s rezoning
decision and voted to maintain the general agricultural classification. Plaintiffs then filed an omnibus § 1983 action
in state court alleging a regulatory taking and substantive due process
and equal protection violations. The court initially had to deal with
the town’s assertion that by failing to comply with Wisconsin’s notice
of claim statute relating to litigation against local governments, the
trial court lacked jurisdiction. When
a party brings a § 1983 action claiming a violation of constitutional
or statutory rights under color of state law, the party need not exhaust
its state remedies and need not comply with whatever state procedural
hurdles normally attach to suing a local governmental entity.[47] In addition, the court found that the plaintiffs
had complied with the notice of claim provision through their various
actions prior to filing this lawsuit.
The court noted the traditional two
tests for showing equal protection violations, namely the compelling
state interest test for suspect classifications and fundamental rights
and the rational relationship test for everything else. The court found that the complaint’s allegations regarding the bias of at least one member of the county
board was sufficient to withstand the county’s motion for summary judgment.
In addition, the plaintiffs asserted that the topography of their
tract was ill-suited for agricultural uses, evidence of a lack of a
rational relationship between the classification and the governmental
objective. A plaintiff in an
equal protection case does not have to exhaust state judicial or administrative
remedies. The court noted that
at trial the burden on the plaintiff to prove the lack of a rational
relationship will be difficult to meet.
The plaintiff must show that the ordinance is unconstitutional
beyond a reasonable doubt. The court held that plaintiffs had
not stated a claim for a substantive due process violation. The plaintiff must prove that there has been
a deprivation of a liberty or property interest that is constitutionally
protected. Plaintiff asserted
that the town’s rezoning efforts had not complied with state law. The plaintiff in this case had no property
interest involving the statutory procedures required to be met before
a zoning ordinance could be amended.
The gist of the substantive due process claims were the same
as the equal protection claims. Where
a specific constitutional provision can be relied on, rather than the
general provision relating to due process, the specific claim will essentially
subsume the general claim. Finally, the court found that there was no
procedural due process claim because the state provided an adequate
post-deprivation remedy of judicial review of improper zoning decisions
through the certiorari process.
[f] St. Raymond v. City of New Orleans[48] Plaintiff owned a lot located in a
duplex residential zone. Over
a negative recommendation by the City Planning Commission, the city
council enacted an ordinance issuing to the plaintiff a CUP to construct
three townhouses on the lot. The
ordinance contained several conditions or provisos and waived several
setback requirements. The ordinance was to have “legal force and
effect” only when the provisos were fully complied with. Two amendments to the ordinance extended the
period of time when construction had to begin. Several years after the last deadline had passed, plaintiff sought
a ruling that the ordinance was still valid even though the townhomes
had never been built. The plaintiff
listed several activities he asserted met the ordinance requirements
for development. The city notified
the plaintiff that his CUP had not expired and then issued him a building
permit. The plaintiff began
construction and apparently did substantial work leading to the pouring
of the foundation when the city issued a stop work order. Notwithstanding other stop work orders the plaintiff continued to
build and got a restraining order against the city from the trial court
to prevent them from interfering with his development. The trial court, however, refused to grant plaintiff a preliminary
injunction against the city. The basis for the plaintiff’s claim
for an injunction was that he had a vested property right in the building
permit. But Louisiana law,
like most states, does not treat the issuance of a building permit as
conferring a constitutionally-protected property right.[49] If a building permit was issued in error, the
permit owner does not have a right to prevent the city from revoking
or rescinding the permit. The
permit was issued in error because the city attorney who wrote the memorandum
finding that the CUP had not expired was wrong.
There had not been sufficient development work done within the
period of time set by the earlier ordinances.
The only work accomplished within the time frame was the pouring
of the sidewalk. That was insufficient
to keep the CUP alive. The completion
of work after the stop work orders were issued was not sufficient to
show irreparable injury. Even
if the plaintiff was misled by the city’s action, a preliminary injunction
should not issue since monetary damages can fully compensate the plaintiff
for his injuries.
[g] East Lampeter Township v. County of Lancaster[50] In 1986, Mr. Hondares, an African-American,
purchased two contiguous tracts of land. At the time of the purchase both tracts were
zoned for commercial use. The
front tract was used to operate a retail store.
In 1990, the township engaged in a comprehensive rezoning that
reclassified the rear tract to rural while maintaining a commercial
classification for the front tract.
Hondares petitioned the township board of supervisors to rezone
the rear tract back to commercial but they refused.
No further appeal was taken.
Mr. Hondares was using the rear tract as a residence in apparent
violation of the ordinance, but the township had never sought to enforce
its ordinance. In 1993, he filed a complaint with the County
Human Rights Commission asserting that the township had discriminated
against him because he was black.
Before the commission could hold any hearings, the township sought
a declaratory judgment that the commission did not have jurisdiction
over the Hondares claim. When the township refused to rezone the rear
tract it acted in a legislative capacity.
Courts and administrative agencies exercising adjudicatory powers
do not have any power to interfere with the legislative process. Under the state zoning law, decisions to rezone
are entrusted to the board of supervisors with appropriate resort to
the courts provided for. This
type of attempted collateral attack was not authorized by statute. The commission would have no power to remedy
the alleged discriminatory treatment since it could not rezone the tract. The commission lacked the power to review the
legislative decision of the township. § 1.03 Land
Use Controls and the Fifth Amendment [1]
Regulatory Takings
[a] Agripost, Inc. v. Miami-Dade County[51] Plaintiff was issued a permit from the county board of commissioners
in 1987 to operate a waste disposal facility. Plaintiff had been a successful bidder to construct
a facility that would create an environmentally safe end product from
the solid waste. Plaintiff also
received a variance containing several conditions since the facility
was located in an agricultural zone. Four years later, however, the
county zoning appeals board revoked the permit, after receiving complaints
upon the operation. The board determined that the plaintiff had
failed to comply with several of the conditions. Upon direct state judicial
review, the revocation decision was upheld.
Plaintiff then filed this action asserting a regulatory takings
claim against the county. The
trial court dismissed the action as unripe under Hamilton Bank since plaintiff had not pursued
a state inverse condemnation claim.
The county had argued that under the Rooker-Feldman doctrine only the Supreme
Court of the United States has jurisdiction to review final decisions
from a state’s highest court. It
also argued that under either the issue or claim preclusion doctrines
the case should be dismissed on the merits.
The county sought to avoid the plaintiff’s filing of a state
court inverse condemnation claim, something the plaintiff did shortly
after the district court’s opinion. While normally the prevailing party
does not have standing to attack a judgment or order, in this case the
county was injured by the district court’s handling of its issue or
claim preclusion claims. The
court agreed with the district court that the earlier state court litigation
did not act to prevent the plaintiff from filing a state inverse condemnation
claim. The court found that the earlier state court
proceeding did not deal with the regulatory takings claim and that it
lacked authority to hear it since it was the permit revocation decision
that allegedly constituted a regulatory taking.
Since the legitimacy of that revocation decision was not finally
determined under after the state court proceeding was final, plaintiff
would not be precluded from filing a new regulatory takings claim in
state court. Obviously, Hamilton Bank precluded plaintiff
from bringing a federal takings claim, since Florida provides for an
inverse condemnation remedy. In
addition, since the earlier state court proceeding did not deal with
the takings issue, the district court had subject matter jurisdiction
to determine that the issue was not ripe for review under the Rooker-Feldman
doctrine.
[b] SGB Financial Services, Inc. v. Consolidated City of
Indianapolis-Marion County[52] Plaintiff is the owner of a 286-unit
apartment complex. Starting
in 1996, it sought to sell or re-finance and renovate the complex. No proposals or bids were received when in
April 1997, the parcel was placed on the city’s “acquisition list” under
the state’s urban redevelopment law.
Under the law, the city was could either negotiate a purchase
of the parcel, condemn it through an eminent domain proceeding or do
nothing. Two city appraisals listed the value of the
parcel at around $ 900,000. The
plaintiff’s appraisal came in at $ 3.2 million. The city also provided information to several prospective purchasers
or re-developers of the complex regarding the high crime rate and what
the city had appraised the parcel for.
While the city disclosed its appraisals to third parties, it
refused to disclose its appraisals to the plaintiff.
Plaintiff the filed this claim asserting that the city’s actions
have constituted a regulatory taking and have impeded its ability to
sell the parcel for its listed purchase price of $ 2.6 million. The plaintiff tried to avoid the Hamilton Bank
ripeness doctrine by asserting the futility exception. An Indiana state court decision had found that
a city’s actions in declaring an area “blighted” and placing the parcel
on the acquisitions list does not constitute a regulatory taking.[53] The fact that a single decision by an intermediate
appellate court appears to be contrary to the position of the plaintiff
does not make the state inverse condemnation futile, unavailable or
inadequate. Hostility of the
state court system to the type of regulatory taking claim asserted by
the plaintiff is not sufficient to avoid Hamilton Bank’s requirement of seeking state
court relief prior to the filing of the case in federal court. Where the state procedure exists, the property
owner must avail itself of the procedure and be denied an inverse condemnation
award the case will be ripe for federal court review.[54]
[c] John Corp. v. City of Houston[55] In 1991, the city had issued demolition
orders covering an apartment complex. In 1995, John Corp. agreed to purchase the complex from the owner
for $ 1,900,000. Plaintiff entered
into discussions with the City regarding its rehabilitation plans for
the complex. During this time
period there was a fire on the premises and eventually the city demolished
about two-thirds of the buildings within the complex.
Plaintiff then sued the City for violating various of its constitutional
rights as well as the sellers. The
district court dismissed all of the plaintiff’s constitutional claims. The court treated many of the plaintiff’s
claims as essentially regulatory takings. The alleged activities of the city in dealing with the plaintiff
and then demolishing the buildings, involved a claim that the regulation
went too far. Once classified
as regulatory takings, the claims have to fail under the Hamilton Bank ripeness doctrine. Only if the demolition was accomplished for
a private purpose might the federal courts hear the case prior to a
state court. Thus, the district
court was correct in dismissing the bulk of the plaintiff’s claims. The court then found that the substantive
due process claims raised by the plaintiff should not have been dismissed
because they were different from the regulatory takings claims. Rather than subsuming the due process claims
into takings claims, the court treated them separately.[56] The allegations in the complaint that the ordinance
authorizing the demolition of the building were sufficient to state
a cause of action under the due process clause.
Those claims are different than the regulatory takings claims
and are ripe for review without the need for filing a claim in state
court.
[d] Jim Sowell Construction Co., Inc. v. City of Coppell[57] Plaintiff brought a regulatory takings
claim against the City after the City downzoned land where the plaintiff
had planned to construct an apartment complex. Earlier orders had dismissed the takings claims
finding that the regulation substantially advanced a legitimate state
interest and did not deny an owner economically viable use of the land. Plaintiff urged that Del Monte Dunes required the
court to take a hard look at the city’s downzoning decision to see if
it substantially advanced a legitimate state interest. The court found that Del Monte Dunes did not reverse the traditional
presumption of validity and the placement of the burden of proof on
the party challenging the ordinance.
The more rigorous scope of judicial review applicable to exactions
does not apply to normal land use regulations, including downzoning
amendments. In addition, heightened scrutiny does not apply
to legislative decisions, while it may, under certain circumstances,
apply to adjudicatory decisions. Plaintiff
alleged that the downzoning was racially motivated because the proposed
multi-family development was going to contain some low- and moderate-income
units. The city responded with
reasons for the downzoning that were unrelated to the potential racial
make-up of the apartment complex. Under
the soft glance approach taken to these type of cases, the court found
that the city’s decision substantially advanced a legitimate state interest.
Plaintiff also made a claim that the
city’s decisions violated its vested right to develop that was created
by Texas statues.[58] The city admitted that the vested rights statute
required the city to apply the ordinance in existence when the permit
request was originally filed. But
the court found that the statute did not create a cause of action for
money damages. Instead the remedies
are limited to declaratory, mandamus or injunctive relief. The court then dismissed this state law claim
as well.
[e] Rau v. City of Garden Plain[59] The city downzoned plaintiff’s parcel
from light commercial to residential.
Plaintiff then filed a state lawsuit making a § 1983 claim that
the city had violated her due process, equal protection and regulatory
takings rights. The city filed
a motion to remove the case to federal court based on federal question
jurisdiction and then moved for summary judgment on all of plaintiff’s
§ 1983 claims. The underlying basis for the motion
for summary judgment was that the claims were not ripe for review. Kansas law provided two means of attacking
the judgment in state court. The
first was a statutory review procedure to determine the reasonableness
of the zoning order or determination.
The second was a claim for inverse condemnation. It
was unclear under Kansas law whether such a claim can be made for a
zoning ordinance that went too far.
Nonetheless, Kansas does recognize the inverse condemnation cause
of action. The plaintiff did include in the state complaint a claim
that the ordinance was unreasonable.
But the plaintiff also included the regulatory takings claim
that was both unripe under Hamilton Bank
and was the grounds for removing the case. Plaintiff needed to have filed in state court
either or both of the statutory review or inverse condemnation cases
without alleging a § 1983 cause of action. The court also dismissed the substantive
due process and equal protection claims as unripe. Where these claims are really offshoots of
the regulatory takings claim, the more particularized protection of
the Takings Clause applies as does the Hamilton Bank ripeness doctrine.[60] As to the procedural due process claim, the
Hamilton
Bank ripeness doctrine normally does not apply. But as asserted by the plaintiff in this case,
the procedural due process claim was directly related to and thus coextensive
with the regulatory takings claim.
Thus, the procedural due process claim was also dismissed as
unripe. Because all of the federal
claims were dismissed, the court remanded the state claim under Kansas’
statutory review to the state court for their determination. Only rarely should a federal court review local
zoning decisions where a state court can otherwise exercise jurisdiction.[61]
[f] Town Council of New Harmony v. Parker[62] Two separate tracts of land were subdivided
and platted in 1871 and 1874. About
100 years later, Parker purchased several of those lots. Some ten years later, Parker asked the town
to extend various utilities to the lots.
The town agreed to do so if Parker would pay the pro rata share
of the costs of extending those utilities as provided by state statute. That offer was never accepted. Shortly thereafter, the town placed a chain
across the street that dead-ended at the Parker tract because of numerous
complaints from neighbors that vehicles were running off the end of
the paved street and onto the parcels.
Parker then filed this action claiming that the town was obligated
to provide utilities at its own expense and that the placement of the
chain constituted a regulatory taking. After surveying basic regulatory takings
law, including Lucas and Penn Central, the court analyzed
the town’s action in placing the chain across the street. While the Parker parcel was subdivided the
court treated it as one inclusive parcel of undeveloped land. There are no paved streets leading into the
Parker tract. The town action
did not deprive Parker of access to her property as it was still accessible
from a wide variety of streets and rights of way.
The chain was located over the street and thus there was no physical
invasion of the Parker tract. The second regulatory takings claim
allegedly arose when the town zoning official indicated that he would
not issue any building or location improvement permits for the tract. There was, in fact, no permit application from
Parker. In addition, there was
no appeal of a permit denial to the BZA.
Thus because Parker failed to exhaust her administrative remedies,
the trial court lacked subject-matter jurisdiction to hear her constitutional
claims. The court refused to
apply the futility exception to the exhaustion requirement since that
exception is to be narrowly construed.
The purpose of seeking a permit is to give the court a decision
that can be reviewed so as to properly adjudicate the as applied regulatory
takings claim. The court noted that the BZA might have developed
an alternative to the denial decision, including a conditional approval
based on factors unique to the parcel. The third regulatory takings claim
allegedly arose when the town refused to extend utility services without
the assessment of costs. In
this situation the court applied the Penn Central analysis of reasonable investment-backed
expectations. When Parker purchased
the lots she was charged with knowledge of the existing city ordinances
and state statutes dealing with utility services. She could only have expected that the town
would either grant or deny developmental permission and utility services
based on its stated policy of requiring reimbursement for costs. The state authorized the town to levy assessments
for the provision of utility services and when the town exercised its
power, there was no regulatory taking.
[g] Shemo v. Mayfield Heights[63] The owners of a 22.6 acre parcel bordered
by commercial and residential uses, as well as an interstate highway
challenged the residential zoning classification for the site in June
1995. The parties stipulated
that the existing zoning classification was unconstitutional, but that
the city reserved the right to rezone the property.
The city rezoned the parcel to a cluster SFR zone.
The owners then challenged the rezoning decision and urged that
they were entitled to have their lands zoned for commercial and warehouse
uses. While the case was on appeal the Ohio Supreme
Court decided to separate out the two prongs of the Agins
taking test, namely whether the ordinance deprives the owner of an economically
viable use and whether the ordinance fails to advance a legitimate governmental
interest.[64] Only
the economically viable use test is employed in dealing with a regulatory
takings claim. Likewise, only the advancement or reasonable relationship
test is used where a due process claim is made.
In this case, the trial court found
that the cluster SFR zoning classification did not meet the reasonable
relationship standard, even after allocating the burden of proof to
the owners. The court of appeals
had remanded the case to the trial court to apply the separate tests,
but the supreme court determined that the ordinance was unconstitutional
and therefore no remand was required.
The court reviewed the trial court judgment, not the rezoning
decision. The city argued that under the deferential
“fair debate” standard used in Ohio, the rezoning ordinance was reasonably
related to several legitimate public objectives including maintaining
the residential character of the neighborhood, maintaining a mixed blend
of uses and preventing undue traffic congestion.
The court employed a Nectow-type hard look at the individual rezoning
decision, discounting the adjacent residential uses by focusing on the
adjacent commercial uses located near the interstate highway. Evidence was proffered by the city showing
concern by the residents of the adjacent homes regarding the commercial
development of the area. The
court found that insufficient even under the fair debate standard. The court suggested that the externalities
from the commercial development could be minimized through buffering
requirements. The court also
found that the city’s traffic congestion claims were unsupported by
the evidence. The court also rejected the claim that the
owners of the tract created their own hardship in developing the area
for residential use by selling off portions of the tract at earlier
dates. The court minimized the self-imposed hardship
argument by saying that the owners made legitimate business decisions
that should not be held against them when determining the validity of
the rezoning ordinance. With
this case, Ohio places itself in the Illinois camp of scrutinizing very
closely zoning decisions that limit the developmental potential of a
site while stating that their scope of judicial review is deferential.
[h] San Remo Hotel L.P. v. City and County of San Francisco[65] The hotel asserted that the application
of the amended hotel conversion ordinance in 1990 constituted a regulatory
taking. The hotel property was
developed in 1906. It had a
long history of both tourist and long-term residential use. The hotel was extensively refurbished in the
early 1970s who continued the dual use.
Under the terms of the 1990 ordinance, the hotel would be prohibited
from renting rooms to tourists unless it paid the city a $ 567,000 conversion
fee or provided suitable replacement housing and received a CUP. The in lieu fee was based on the city’s finding
that all of the units were being used for long-term residents at the
time the first hotel conversion ordinance was enacted in 1979. The hotel first instituted litigation in the
federal court, but the Ninth Circuit determined that it was more appropriate
for the litigation to take place in state court.[66] The city filed a demurrer claiming that the
hotel had not stated a cause of action for a regulatory taking. The court initially had to determine
the appropriate scope of judicial review of the conversion ordinance. The hotel asserted that the higher level of
scrutiny employed by Nollan/Dolan for impact fees and applicable
in California through the Ehrlich case should be used.[67] The imposition of discretionary fees by a governmental
body presents an inherent and heightened risk that the local government
will manipulate the police power to impose conditions for which it would
otherwise have to pay just compensation.
The court found the fees imposed here are analogous to the types
of fees imposed in Nollan/Dolan/Ehrlich. In order to qualify for a CUP to rent rooms
to tourists, the hotel was under the same type of duress as the owners
in those 3 cases. Thus, the
heightened scrutiny analysis should be applied.
The in lieu fee here was clearly set at a level to fund replacement
housing that the city wanted to provide.
That type of decision was the type that the Supreme Court felt
warranted closer scrutiny to avoid overreaching. The court found that the demurrer should
not have been granted by the trial court as to the as applied regulatory
taking claim. The court applied
the dual Nollan/Dolan
test of requiring the city to prove that there was both an essential
nexus between the permit condition or in lieu payment and the public
impact of the proposed development and that a rough proportionality
existed between the magnitude of the fiscal exaction and the effects
of the proposed development. The
allegations of the hotel were sufficient to raise factual issues on
both questions. While the court readily admitted that providing
low and moderate income housing was an important governmental objective,
the hotel raised questions about the nexus or relationship between the
replacement housing and fee requirement and that objective. There was a substantial factual dispute as
to whether the hotel in 1981 and 1990 was completely committed to residential
as opposed to tourist units. The
city presumed that it was entirely a residential operation, but if it
was not, the nexus between continued use of tourist units and the so-called
replacement fee was unclear at best.
Likewise, there were substantial questions about the proportionality
of the imposed fee since it was predicated on that same presumption.[68] The earlier cases upholding the hotel conversion
ordinance did not address the as applied regulatory takings claim made
here by the hotel. The court
also found that the payment of the fee under protest did not constitute
a waiver of the hotel’s right to make its regulatory takings claim. The hotel also sought a writ of mandate
that it was a valid NCU and therefore did not have to get a CUP from
the city in order to rent rooms to tourists.
The court reached a different view as to the effect of the certification
of rooms made by the city at the time of the enactment of the conversion
ordinance than did the court in Tenderloin Housing Clinic.[69] In that case the court found that the hotel
had achieved a NCU status based on the certification by the city that
it was renting rooms to tourists without the hotel having to prove that
it was actually engaged in that type of room rental business. In this case, the court found that the certification
order was not determinative of whether there was a legal NCU in existence.
The court looked to the underlying zoning ordinance and found
that there was no distinction made between residential and tourist hotels.
Thus even though the certification decision showed no tourist
use, it may have had that right when the conversion ordinance was enacted. If the use of the premises for tourist rentals
was allowed, it would have been a valid NCU. The court remanded the issue to the trial court to take evidence
on whether the hotel property was actually used for tourist rentals
prior to the enactment of the ordinance.
[i] City of Annapolis v. Waterman[70]
Plaintiff purchased a 3-acre tract
of land in the mid-1970s with the purpose of developing it in three
phases. As part of the first
phase development approval process the developer agreed to provide 2375
square feet of recreational space in an appropriate location as part
of the future development of the last two phases.
When the second phase was approved it did not contain that recreational
space. The third phase plat
was submitted in 1990. The
plat designated a 4598 square foot recreational easement that ran behind
the proposed 8 duplex units. Both
the staff and the Planning and Zoning Commission recommended denial
of the plat because of alleged density and traffic problems and violation
of the recreational space condition. The Board of Appeals upheld the commission's
findings, based in part on its conclusion that the easement dedication
would cause each of the lots to fall below the minimum size required
by the ordinance. The trial
court reversed the board's decision.
While this litigation was ongoing the city amended its zoning
ordinance to require site design review prior to subdivision approval.
On remand from the trial court, the city applied site design
review to the proposal and conditioned its approval of the plat on leaving
one of the new lots vacant. The
city also required that the 2375 square feet of recreational space be
located on that lot. The plaintiff responded by filing this regulatory
takings claim asserting that the original condition created an unconstitutional
takings. The trial court found that a taking had occurred
by focusing on the decision's impact solely on the single lot. The city's zoning and subdivision ordinances
emphasize the need for open space.
The site design plan review procedures also attempt to maximize
the amount of available open space and give the city the power to reject
such plans that do not achieve compatibility with safety, efficiency
and attractiveness standards. The
use of conditions on subdivision plats to achieve legitimate public
objectives was well recognized in Maryland.
The court distinguished between common law dedications and mandatory
dedications. Common law dedications involve an offer to
dedicate and an acceptance by a local government while mandatory dedications
arise from the exercise of the police power.
The recreational land requirement is not a dedication because
the proposed space was not intended for general public use. Thus the requirement is a condition, not a
dedication. While a dedication
requires a developer to transfer title to a governmental entity, a condition
merely limits the method in which a property owner may thereafter use
his property. The court examined Maryland law to see whether
it was more appropriate to apply the Mahon/Lucas or Nollan/Dolan
tests to the city's condition. It
determined that the Nollan/Dolan test would not be applicable
where there was no dedication or transfer to the government. The real issue is whether a valid public purpose
existed for the condition and whether the end result is to leave the
owner with no remaining viable economic use of the totality of his land. In applying the Mahon/Lucas test the court
dealt with the denominator problem.
The lower courts had focused on the single lot that was to hold
the open space. This court determined
that at least the entire third-phase property must be included and hinted
that the entire three phases must be considered since the owners have
received substantial economic benefits from sales of lots during the
first two phases. Since the remaining duplex lots clearly retained
substantial value, there was no evidence to support a finding of a regulatory
taking by the imposition of the condition to provide recreational space
for future residents of the subdivision.
[j] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency[71] Several property owners asserted that
a temporary planning moratorium adopted by the TRPA constitutes a regulatory
taking of their property interests.
In response to changes in the interstate compact in 1980, TRPA
adopted a moratorium on development pending the enactment of a new regional
plan. The moratorium was in effect for nearly 3 years
until the new plan was adopted. That
plan, however, was challenged by several parties as not being strong
enough to comply with the new mandates regarding protection of the lake.
This led to a revised land use plan being adopted in 1987.
Litigation was initially filed in 1984 and has led to several
Ninth Circuit decisions in the ensuing years.[72] The district court found that as to two of
the earlier time periods, plaintiffs had stated a § 1983 cause of action
for a regulatory taking, but that for two other time periods there was
no regulatory taking or the claim was time-barred.
Both parties appeal. The trial court had based its regulatory
taking decision as to the earlier periods on its conclusion that the
moratorium was a Lucas total taking. It
had specifically found that if Penn Central was applied there was no taking.
The takings claims are based on a facial attack on the moratorium.
In such facial attacks, the court is to look only at the regulation’s
general scope and dominant features rather than to its individual effect
or impact. Facial attacks place
a substantial burden of proof on the property owner. The Ninth Circuit examines the aggregate/disaggregate issue, not
in terms of area, but in terms of time.
Plaintiffs assert that for the period of time covered by the
moratorium, there has been a Lucas deprivation of all economically feasible uses of the
land. The court, however, refuses
to temporally divide the fee simple absolute into shorter time periods. The court relies on Penn Central to conclude that
severing the property interest into discrete segments should not be
the basis of a regulatory takings claim.
While Mahon might suggest a conceptual severance, other Supreme Court
decisions, including Keystone Bituminous and Andrus v. Allard
reject disaggregation. Mahon
can be distinguished from the usual case where a single fee simple absolute
estate is involved since state law allows for there to be two separate
fee simple absolute estates, one in the surface and one in the minerals. In this case there is clearly no separate durational
estates involved. A contrary
result would clearly invalidate all development moratorium ordinances. That ignores the Lucas admonition that even
a very important governmental objective may not save a land use regulation
that deprives the owner of all economically viable uses of the land. The court rejects the notion that First English
adopted a temporary taking analysis that requires a temporal disaggregation
or severance. The court reads
First
English as authorizing temporary takings in the situation
where the court finds a taking and then the local government changes
the regulation to remedy the overreaching.
It dismisses the language in First English that discusses normal regulatory delays as not
being temporary takings as not leading to the implication that moratoria
are not normal regulatory delays deserving of protection. The court further indicates that areal disaggregation is also
not to be used in takings analysis. In then applying Lucas
to the fee simple absolute interests, the court notes that the regulations
effectively prohibited all development, but that the regulation was
designed to be temporary. It
tries to define the term “economically beneficial or productive use”
that is the heart of the Lucas
test. The court refuses to equate the terms use and value. While admitting that value is strong evidence
of the availability of economically beneficial uses, it is not the exclusive
measuring stick. Because the
regulation was temporary, it did not have the effect of denying either
the future developmental use or value of the properties. The future uses have substantial present values. The court does note that should the moratorium
be extended for a lengthy period of time, that future value and/or use
may be diminished substantially. But
in this case, given the facial attack and the reality of the reasonably
short period of time the moratorium was in effect, the court concludes
that there was no Lucas
taking. Since no Penn Central taking was found
by the trial court, the Ninth Circuit also affirms that finding given
its analysis of the Lucas taking issue.
[k] Santa Monica Beach, Ltd. v. Superior Court[73] One of the intriguing questions in
the area of regulatory takings is what should courts do regarding the
first prong of the Agins test, namely does the regulation substantially advance
a legitimate state interest?[74] Should the courts take a soft glance approach
as many of them do in the substantive due process arena, or should they
follow the Scalia hard look approach as used in the development exactions
cases? This case attempts to
address this important question, even though the results led to 5 separate
opinions.[75] In 1979 the city adopts a rent control ordinance,
delegating to a rent control board the power to establish maximum allowable
rents and providing for annual general and special adjustments for rental
units. Plaintiffs own a 12 unit
apartment and sought an increase in the allowable rents in 1992. The board, after a hearing, denies the request.
In 1993, the board allows a permanent rent increase of $ 3.00/month/unit
and a temporary rent increase of $ 58.00/month/unit.
Plaintiff challenges the board’s actions as a regulatory taking,
asserting that the statute as applied does not meet the substantial
advancement test since the alleged effect of the law has been to diminish,
not augment, the number of affordable rental units within the city.
The city initially asserts that the
plaintiff’s challenge is really a facial attack, not an as applied attack
and is therefore barred by the statute of limitations. While not directly resolving that issue, the court presumes that
the plaintiff’s challenge is to the individual decision and not the
enactment of the ordinance. The
court initially notes that the wisdom or stupidity of rent control ordinances
is not at issue. While courts
have struck down rent control ordinances as violating the Fifth Amendment,
they have done so on takings or procedural due process grounds.
The court notes: “The notion that a court may invalidate legislation
that it finds, after a trial, to have failed to live up to expectations,
is indeed novel. In our constitutional
system, it is generally assumed that only the legislative body that
enacted the statute may exercise a power of repeal if that statute fails
to meet legislative expectations.”[76] The majority rejects the application of the
hard look review espoused in Nollan-Dolan in the ordinary regulatory takings
analysis. In cases such as this
where an adjudicatory decision is involved, the appropriate scope of
judicial review is the substantial evidence test.
Where a legislative decision is involved, the appropriate scope
of judicial review is even more deferential under an arbitrary or capricious
test. A per se attack on a
rent control ordinance should be analyzed under a rational relationship
test, since it is a form of price control regulation.
An as applied attack on a rent control decision should be based
on the substantial evidence test to determine if there was a confiscatory
decision. Where the plaintiff
makes an attack using the “substantially advancing” test, the scope
of judicial review is the most deferential.
It allows the court to consider post-decision rationales to support
the ordinance. That fact that the ordinance may have a deleterious
impact on those individuals who were intended to be protected does not
invalidate the ordinance. Even
if imperfect, the ordinance may still protect some existing tenants
from being displaced. That is
sufficient under the Agins
test. It is not within the province of a court to determine how long
a legislative experiment should be carried out.
The court eschews a role in declaring a regulatory program a
failure and thus unconstitutional.
While there may be circumstance where changes in conditions may
support an as applied challenge, such as in the case of a zoning ordinance
left behind by changing conditions in the neighborhood, that does not
authorize a court to invalidate an ordinance whose purposes may be frustrated
by changing conditions.
[l] Isla Verde International Holdings, Inc. v. City of Camas[77] Plaintiff seeks approval of a 51 lot
subdivision. At the public hearing,
the city’s fire department asks for the inclusion of a secondary access
road for emergency purposes because of some unique features, including
steep slopes, long cul de sacs and nearby forest land.
The Planning Commission approves the subdivision subject to the
construction of the secondary road, compliance with the open space requirements
of the ordinance requiring the set aside of 3% of the subdivision and
payment of impact fees for park and recreational facilities and open
space. The developer objects to all three requirements before the city
council. The council, nonetheless, affirms the decision
of the Planning Commission and the developer seeks judicial review. The scope of judicial review of a subdivision
plat approval is the substantial evidence test. The appellate court reviews the administrative
record and not the record at the trial court. The review is deferential and the evidence
is viewed in the light most favorable to the party that prevailed at
the fact-finding level of decision-making.
The trial court found that the secondary road requirement violated
the substantive due process rights of the developer. Under Washington law, substantive due process review involves a
balancing test using a means-end analysis and an unduly oppressive analysis.
The court has no trouble finding that providing emergency vehicle
access is an important governmental objective, especially in light of
the unique physical features of the development.
It also finds that the added costs alone do not make the requirement
unduly oppressive. There was no evidence to show that the added
costs were extraordinary or would diminish the value of its investment. The fact that the city responded to public
criticism of the development does not, by itself, show that the decision
to require the secondary road is arbitrary or capricious. The court, however, finds that the
30% set aside for open space violates the roughly proportional Dolan
test. Here the court finds that
Dolan
applies even though there is no dedication or exaction requirement.[78] While the owner would retain its possessory
interest in the set aside acreage, it would have to leave it undeveloped. That implicitly is treated the same as an exaction.
The court does find that the set aside requirement meets the
nexus test because there is a relationship between preserving open space
and protecting wildlife and recreational resources.
But the court finds that there was no city study showing that
the 30% figure is justified. The court assumes that even though this is
not an individual application, but a figure set by the legislative body,
the rough proportionality test still applies.
The court does not review the impact fee ordinances under Nollan-Dolan
because no fee had been imposed at the time of the trial thus making
that issue not ripe for review.
[m] Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck[79] Plaintiff owns a 150-acre tract of
land that has been leased to a private golf club since 1921. The tract, however, was zoned for SFR use until
the late 1980s when the city began to study the need for open space
in the community. The tract
is then rezoned to a recreational district where golf courses are allowed,
but where no residential development is authorized.
Simultaneously with the city planning efforts, the plaintiff
began exploring the possibility of creating a residential subdivision
while retaining the golf course. After
the rezoning of the land the town denied the permit and plaintiff filed
this regulatory takings claim. The only issue on appeal is the first
prong of the Agins test, namely whether the rezoning substantially
advances a legitimate state interest. Plaintiff tries to apply the Nollan-Dolan hard look approach to this means-ends
test. The city argues that there
is a need for preserving open space, providing recreational activities
and mitigating flooding that is served by the rezoning decision. The court relies on Del Monte in concluding that
the heightened scrutiny employed in exactions cases do not apply to
general regulatory takings cases. While
the plaintiff concedes that the rough proportionality prong of Nollan-Dolan would be inapposite
to a general land use regulation, they urge the court to apply the “essential
nexus” test. The court notes
that Del
Monte approved a jury instruction that equates the substantially
advancement test with the reasonable relationship test. If the Supreme Court wanted to apply heightened
scrutiny it would not have approved the classic deferential reasonable
relationship test. The court
also rejects the argument that the town could have achieved its objectives
in a way that would have caused less damage to plaintiff’s development
plans. The court finds that it cannot second guess
legislative zoning decisions so long as they fall within the parameters
of the 5th Amendment.
[n] Lambert v. City and County of San Francisco[80] The debate over regulatory takings
at the Supreme Court is evident from an unusual opinion written by Justice
Scalia and joined by Justices Kennedy and Thomas in the denial of the
petition for certiorari in this case.
As with San Remo
this case involves the San Francisco Residential Hotel Unit Conversion
and Demolition Ordinance. By
ordinance, the city does not allow significant alteration, enlargement
or intensification of a tourist hotel except upon the issuance of a
discretionary permit. The conversion ordinance prohibits the issuance
of a permit for the conversion of units from residential to tourist
use unless the owner agrees to provide either a one-to-one replacement
for those units or pays a portion of the replacement costs of those
converted units. The Lamberts
own a hotel that has 24 residential units and 34 tourist units.
They seek the required discretionary permit to convert the 24
residential units to tourist use. The
city appraised the replacement costs of the units at $ 600,000. The Lamberts offered $ 100,000. The Planning Commission denies the permit and
plaintiffs use claiming a regulatory taking. The California Court of Appeals opinion finds no taking and does
not apply Nollan-Dolan
because the permit denial was based not on the failure to pay the $600,000
but on the general ordinance not allowing alteration or enlargement
of tourist hotels. The opinion
found tghat the decision was based on traditional notions of effect
on traffic patterns and the surrounding neighborhood.
Justice Scalia, however, believes that
the real reason behind the denial decision was the failure of the Lamberts
to comply with the demand for the $ 600,000 replacement fund. He finds that the traditional concerns relating
to traffic and congestion would somehow melt away if only the fee was
paid, since in other cases the city has approved such conversion when
the fees have been tendered. Thus
Justice Scalia concludes that Nollan-Dolan should have been applied to
the decision. Where there is
a demand for money or other property, Justice Scalia would apply Nollan-Dolan unless the city
could sustain the burden of proving that the denial would have ensued
even if the demand for money had been met.
That type of burden would undoubtedly be very hard to show. He finds that this is the classic type of situation
that Nollan-Dolan were designed to invalidate. He also finds that state courts and zoning
authorities are ignoring the admonitions of Nollan-Dolan that justifies the court to
grant the writ for certiorari to reinforce the central position of the
Fifth Amendment in exaction cases. [2]
Vested Rights
[a] McPherson v. City of Manhattan Beach[81] In September 1990, the city approved
a vesting tentative subdivision map and corresponding CUP to permit
the construction of 4 beachfront condominiums on a double sized lot. In January 1991, the city amended its zoning
ordinance that lowered by several feet the maximum height limitation
on multi-family buildings. In
September 1991 the final plat was submitted and approved shortly thereafter. The plat, however, was never recorded because
the developer had not paid the requisite property taxes and had not
submitted some additional data. The
developer did nothing until 1996 when it submitted the data and paid
the delinquent taxes. It sought a CUP in 1997.
Plaintiffs opposed the CUP saying it violated the 1991 amendment
lowering maximum heights. The
developer argued that he had a vested right to develop under the ordinances
in effect when he submitted his tentative subdivision plat. The city took the position that under its ordinances any vested
right expired 3 years after the developer failed to record the final
approved plat. The developer
argued that the city ordinance terminating vested rights was preempted
by the state Subdivision Map Act that vests right at the time of the
filing of the tentative map. But since the city ordinance does not deal
with the time of vesting, but merely extinguishes the right upon failing
to record after the final map has been approved, the court found no
preemption. The court also
found that the automatic termination effect of the city ordinance did
not violate the state statute that requires notice and a hearing prior
to the municipal determination as to a final plat.
The state statute dealt with the approval/disapproval decision
on the final plat. The city
ordinance only dealt with the post-approval action of recording the
plat. There is no state requirement that a hearing must be held where
the developer failed to meet a clear condition subsequent that would
terminate his vested right to develop. § 1.04 Land
Use Controls and the First Amendment [1]
Religion Clauses
[a] Boyajian v. Gatzunis[82] Defendant church initially purchased
a 8.9 acre parcel of land in the Town of Belmont and conducted religious
services in a small building for several years. The area is zoned for residential use. The church then sought a discretionary permit to build a much larger
religious facility. Religious
uses are allowed as of right in the zone, but the permit was sought
in order to exceed the allowable height limit.
Under state law,[83]
zoning regulations may not restrict the use of land for church purposes,
but may impose reasonable regulations on such a use. The town after several public hearings issued the permit. Plaintiffs are neighbors who claim that the
state statute and municipal ordinance violate the Establishment Clause
of the U.S. Constitution. The court reviewed both the statute
and ordinance under the three-part Lemon test. It was conceded that the statute did not foster excessive governmental
entanglement with religion so the court focused on the first two parts,
whether the statute has a secular legislative purpose and does not have
as its principal or primary effect the advancing or inhibiting of religion.
The claim was that giving religious organizations a preferred
zoning status, by essentially exempting them from use regulation violated
the Establishment Clause. While the history of the enactment of the statute
reflected a legislative attempt to reverse a town’s exclusion of churches
and religious schools, the First Circuit concluded that the statute
fits within the boundaries of “benevolent neutrality” required by the
interstices of the Establishment and Free Exercise clauses. The statute’s principal purpose was to prevent
discrimination against religious uses. There is no implied endorsement of religion or a specific religion
in a statute that tries to remove discriminatory treatment.[84] The statute was amended after its initial enactment
to include uses other than religious uses. Therefore, there is no argument under the extant version that the
statute’s primary effect is to enhance religion. Where a state chooses to prevent its local governments from treating
religious uses as non-residential in character, it is not favoring religion.
While the free exercise clause would not require a state to adopt
a statute like the one here, the state is free to prevent local governments
from erecting barriers to communal worship. The
town ordinance, that was amended in response to the enactment of the
state statute, specifically authorized religious uses in residential
zones. Treating the ordinance, no differently than the state statute that
spawned its passage, the court found no Establishment Clause violation
regarding the town’s state-mandated decision to allow such uses in residential
zones.
[b] Concerned Citizens of Carderock v. Hubbard[85] Plaintiffs are homeowners and prospective
neighbors of a synagogue that was given a building permit to construct
a house of worship and support facilities on a 5 acre parcel. Under the county’s zoning ordinance, churches
and other places of worship are permitted uses in single-family residential
zones. Other types of charitable,
philanthropic or social organizations are not allowed uses in such zones.
But other types of non-single family residential uses are allowed
such as embassies, mobile homes, utility lines, bed and breakfast lodgings
and home offices. Plaintiffs alleged that the ordinance violates the Establishment
Clause by endorsing religion through its treatment of churches as a
permitted, as opposed to a conditional, use.
The court applied the Lemon
test, notwithstanding the fact that courts and commentators had announced
its demise for the past 20 years.
The county argued that the ordinance had a secular purpose, namely
the fostering of development that is harmonious and compatible with
single-family residential use. Merely
because other compatible uses are excluded or subject to a conditional
use permit process does not make the exemption one that has a religious
purpose. The ordinance was treated as being neutral, even though it specifically
named churches and houses of worship as constituting a permitted use.
The exemption given churches was also given to non-religious
uses providing sufficient evidence that the ordinance was neutral.
In fact, the ordinance required religious organizations that
operated private clubs or non-religious activities to get a conditional
use permit if they wanted to locate those facilities in a single-family
zone. The ordinance and the
permit issued pursuant thereto, are both valid actions under the Establishment
Clause.
[c] Mayor and Board of Aldermen v. Hudson[86] A church sought to be designated as
a public/quasi-public facility under the city’s zoning ordinance in
order to apply for what the court labeled a “conditional use variance.” The church wanted to expand its facilities
and parking lot. The Board voted
to grant the church’s request. Several
neighbors participated in the Board’s public hearing opposing the CUV. They brought this action challenging the Board’s
decision. Under Mississippi law, the scope of
judicial review of local zoning decisions is quite restricted and subject
to being overturned only if arbitrary, capricious or illegal. The party challenging the decision shoulders
a heavy burden of proof and the Board decision will be upheld under
the classic “fairly debatable” standard.
Under the city’s ordinance, churches and other religious organizations
can be designated as public facilities.
In dealing with the church’s expansion plans, the Board can consider
the impact on the surrounding neighborhood and take whatever steps it
deems appropriate to minimize any negative effects.
The Board decision clearly met the “fairly debatable” test since
the Board was weighing the various factors that go into the issuance
of the CUV and the designation of a public facility.
The trial court decision that had reversed the Board’s decision
was in error and amount to a substitution of judgment by the trial court
for the Board, a result not warranted under Mississippi’s limited scope
of judicial review.
[d] Bethlehem Christian Fellowship, Inc. v. Planning and
Zoning Commission[87] Plaintiff executed a contract to purchase
a parcel of land subject to the receipt of getting a discretionary permit
from the town in order to construct a meetinghouse. There was a time limit placed on how long the
plaintiff could take to secure the permit.
Because the permit decision-making process took longer than expected,
several extensions of the agreement were made.
The PZC denied the permit request and plaintiff sought judicial
review. The town argued that
the plaintiffs lacked standing to appeal since the late for the option
contract to be exercised had passed. The court viewed the standing issue
as one of aggrievement. The
party claiming standing must demonstrate a specific personal and legal
interest in the subject matter of the decision and must also establish
that this interest has been adversely affected by the governmental decision. At the time the plaintiff filed the first appeal
the purchase and sale agreement was still in effect. It was no longer in effect when the trial court
decision was rendered. The court
treated the agreement in this case as a purchase and sale agreement
with a condition precedent, as opposed to an option contract. In cases where an option contract expires prior
to judicial resolution of the zoning issue, there is no aggrievement.
But where you have a purchase and sale agreement, even where
there is a specified period of time for performance, that period may
be extended for a reasonable time, since time is not of the essence
in real estate purchase contracts. The parties to the contract treated it as being in full force and
effect during the court proceedings, even though the time specified
in the contract had been passed. Thus,
the plaintiff still was an aggrieved party who had standing to challenge
the denial of the permit by the commission.
[e] Jesus Fellowship, Inc. v. Miami-Dade County[88]
The church owned a 12.2 acre tract
in a residential area zoned for SFR use on a minimum one lot parcel. They sought a special exception to expand the
existing religious facilities and to start a new private school and
day care center. The planning
staff recommended denial of the permit but the Zoning Appeals Board
voted to conditionally approve the permit.
Further appeal to the County Commission was made by neighbors
who objected to the Board decision.
The Commission voted to conditionally approve as well, but lowered
the maximum number of students from 524 to 150 and limited the school
to kindergarten through sixth grade.
The trial court upon the Church's appeal, affirmed the Commission's
conditional approval. The court found that the trial court
decision applied the wrong scope of judicial review. Where an applicant for a special exception shoulders the burden
of producing evidence that the proposed use is consistent with the land
use plan, the burden shifts to the county to show through substantial
evidence why the permit should not be issued.
In this case, the Commission's decision to further lower the
enrollment figure and limit the grades offered was not supported by
any competent, relevant evidence in the record.
The only witnesses before the Commission either provided irrelevant
testimony or lay testimony that could not be treated as expert testimony
on technical subjects. Therefore, the court reversed the trial court's
decision and rendered a decision that the permit was conditioned by
the Board should be issued.
[f] First Baptist Church of Perrine v. Miami-Dade County[89] The church operated an elementary school
on its property. It sought two
discretionary permits and a sign variance in order to expand the school
to include a seventh and eighth grade that would also result in an increase
in enrolled students from around 500 to 650.
The planning staff recommended that the permits and variance
be issued. At the public hearing before the County’s Community
Zoning Appeals Board, neighborhood opposition to the expansion project
surfaced. Specific questions
about the required traffic study were raised.
Under Florida law, the applicant for a discretionary permit bears
the initial burden of producing evidence that its proposal is consistent
with the county’s land use plan. Once
that burden is satisfied, the burden of producing evidence is shifted
to the opponents to show that the application does not either meet the
performance standards or that the proposal is contrary to the public
interest. In this case the Board rejected the permit
application because there was no church-introduced evidence on the issue
of traffic impacts. That is
a requirement under the zoning ordinance.
The church also argued that the Board’s
decision violated the Florida Religious Freedom Restoration Act.[90] They argued that the ruling restricted the
free exercise rights of its congregants and that the county had not
shown a compelling state interest to support that restriction. Relying on Lukumi Babalu Eye, the court
rejected the application of the compelling state interest test to an
admittedly neutral ordinance. The
requirements of the ordinance relating to traffic impacts for discretionary
permits is clearly neutral regarding religious conduct.
In fact, the court noted that if the county modified its requirements
for churches it might run into an Establishment Clause problem. The court also found that the Board decision
did not prevent or seriously inhibit the Church’s ability to provide
religious education. There may
be other locations that do not have the same type of traffic problem
as the present location. In addition, it may try to accommodate the
expansion into the higher grades by lessening the enrollment in the
lower grades so as not to need a building expansion and as not to create
substantial traffic impacts.
[g] Camp Ramah in the Poconos, Inc. v. Zoning Hearing Board[91] The Camp is a non-profit organization
that runs a summer camp devoted to providing a Jewish educational experience.
They own two parcels of land adjacent to the existing camp totaling
almost 30 acres. The vacant parcels are located in an agricultural
district that allows recreational, religious and educational uses only
by special exception. The ordinance
further provides that for religious uses there must be a 150 foot setback,
while for educational and recreational uses the setback requirements
are expanded to 350 feet. The
Camp seeks approval of its expansion plans as a religious use to take
advantage of the smaller setback requirements and also seeks a variance
in order to place a stormwater detention basin and septic system on
the smaller of the two lots. The board denies the special exception and
variance requests finding that the proposed uses are not religious in
character and that the requirements for a variance had not been shown. A key issue is whether the proposed
children’s camp is a religious use.
It is not the owner of the use that determines the type of use. It is the proposed uses that allow for its
classification as a religious or recreational use.[92] There is a need for larger buffer zones for
recreational or educational uses than for religious uses. Thus the proposed plans were properly rejected
since they did not comply with the 350-foot setback requirement. The court also upholds the board’s decision
that the proposed adult retreat facility is not an allowed use in the
agricultural zoning district. The
retreat is designed to accommodate 125 people, including the capability
of having overnight stays. Such
a use is the equivalent of a hotel or conference center and not a religious,
recreational or educational use that would be allowed with a special
exception. Finally, the court finds that the plaintiff
has not shown sufficient hardship to justify the awarding of a variance. [2]
Free Speech Clause
[a] Adult Entertainment Facilities (AEFs) [i] City of Erie
v. Pap’s A.M.[93] The City enacted an ordinance prohibiting
public nudity, based in large part on the type of ordinance found constitutional
in Barnes.[94]
Notwithstanding the similarity between ordinances, the Pennsylvania
Supreme Court had found the ordinance unconstitutional on First Amendment
grounds because it unduly burdened the AEF owner’s rights of free expression.[95] The plurality opinion finds that nude dancing
is entitled to limited First Amendment protection. By targeting conduct, the ordinance is content-neutral
and therefore the Pennsylvania court should not have applied a strict
scrutiny, less onerous alternatives analysis. The plurality treated the ordinance as not a total ban on nude dancing,
but merely a limit on one type of nude dancing that has as its primary
objective the prevention of secondary effects.
Thus the plurality applied the O’Brien four-par test of whether the governmental
regulation is within the constitutional power of the government to enact,
whether the regulation furthers an important or substantial governmental
interest, whether the governmental interest is unrelated to the suppression
of free speech and that the restriction goes no further than is necessary
to achieve that objective. The
concurring opinion would find that as a content neutral ordinance of
general applicability, no First Amendment protections adhere to the
conduct being proscribed. As Justice Scalia observed: “even if one hypothesizes
that the city’s object was to suppress only nude dancing, that would
not establish an intent to suppress what (if anything) nude dancing
communicates.”[96] The remaining justices all would have applied
a higher level of scrutiny to the ordinance under the First Amendment,
with Justice Stevens particularly concerned about the extension of Renton
to non-locational decision situations.
While not as fractured as Barnes the Supreme Court is still quite divided
on the basic approach to First Amendment issues relating to nudity and/or
sex. It is clear that Renton
is alive and well insofar as it treats secondary effects as some sort
of talisman against judicial interference with municipal attempts to
rid themselves of AEFs. Yet
it is unclear what is the appropriate First Amendment approach. It appears that the “fiction” that ordinances such as this are content-neutral
will continue to be the bedrock for dealing with regulation of AEFs.[97] [ii] Charette v.
Town of Oyster Bay[98]
An AEF operator sought injunctive relief
against the enforcement to an AEF ordinance. The first round of litigation led to a remand for development of
a sufficient record to see whether the ordinance meets the Renton guidelines. Under the ordinance, cabarets are allowed in
two of the three business districts.
The AEF in this case is located in the district where restaurants
and similar businesses are allowed.
The operator claimed that his AEF was a similar type business
allowed in the district by receipt of a discretionary permit.
The town argued that cabarets are only allowed in the two districts
where they are specifically listed.
The court did not apply the traditional Renton or Freedman analyses to determine
whether injunctive relief was appropriate. It mainly determined that since the AEF was located in a district
in which it was not allowed, there was no First Amendment violation. The Operator argued that the discretionary
permit requirement for live entertainment in the district violated the
First Amendment, because of the unbridled discretion given the decision-makers
as to whether to issue a permit, along with the fact that there were
apparently no time limits on the permit issuing process.
Disregarding the fact that the Town had argued in an earlier
phase of the trial that live entertainment was allowed in the district
after receipt of a discretionary permit, the court interpreted the ordinance
as totally prohibiting AEFs from the location owned by the operator. Therefore, the court determined that the operator
had not met its burden of proof for a preliminary injunction that it
was likely to win on the merits. [iii] Wise Enterprises,
Inc. v. Unified Government of Athens-Clarke County[99] In 1997 the county amended its AEF
ordinance by not allowing AEFs in the CBD zoning district and by prohibiting
the sale of alcohol on premises holding an AEF permit. The plaintiff, a preexisting AEF, sought an
alcoholic beverage license and an AEF permit.
The county informed the plaintiff that it could not get both
permits. Under prior 11th
Circuit decisions, governments can prohibit AEFs from qualifying for
alcoholic beverage licenses as long as the regulation is content neutral.[100]
The alcohol restriction only restricts the place or manner of nude dancing
without focusing on the content of the message contained therein. Likewise, the court relies on Erie
and its findings that bans on public nudity are content neutral. The ordinance contained a lengthy preamble
evincing the county’s intent to deal with the secondary effects of AEFs
and the sale of alcoholic beverages.
The court then applies the four-part
O’Brien
test without much scrutiny. It
rubber stamps the county’s decision to prohibit the combination of nude
dancing and the sale of alcohol as going no further than is necessary
to achieve the important governmental objective of preventing the secondary
effects of AEFs. The court also found that there was no evidence
that the ordinance was enacted with the purpose of discouraging nude
dancing or hindering the communicative effects of nude dancing. The county commissioners must have been very
restrained in their discussions regarding the enactment of the ordinance
or were “wood-shedded” by the county attorney to minimize any invective
against the evils of nude dancing.
Finally, the court has no difficulty upholding the county decision
to eliminate AEFs from the CDB zone.
Applying the Renton
standard there were apparently other zoning districts where AEFs were
allowed and thus the ordinance was upheld [iv] David Vincent,
Inc. v. Broward County[101] .In
1993, the county adopted an AEF ordinance that imposed permit, building
and siting requirements on AEFs. Plaintiffs represent several adult
bookstores and live dancing establishments that were affected by the
ordinance. Plaintiffs initially sought a preliminary injunction
through the state court system, but that relief was denied. They then filed this federal action claiming
that the ordinance was both unconstitutional per se and unconstitutional
as applied.[102]
On the per se unconstitutional claim, the plaintiffs were faced with
a prior 11th Circuit decision upholding an earlier version
of the AEF ordinance.[103] Two changes had been made to the ordinance,
the first removing a waiver provision whereby AEFs could locate in zoning
districts even if they were not an allowed use if community approval
was given. The second gave non-conforming AEFs five years
to amortize their business before being required to shut down while
the prior ordinance did not have an amortization provision. The court found that neither change had an
impact on the constitutionality per se of the ordinance. On
the as applied argument, the court applied the Renton analysis to determine
whether the ordinance allows for reasonable alternative avenues of communication.
The plaintiffs challenged the district court’s finding regarding
the number of available sites and whether those sites met the test.
The 11th Circuit noted the somewhat different approaches
of the 5th and 9th Circuits to the issue of what
is an available site. The Fifth
Circuit focuses almost exclusively on physical obstacles and largely
ignores economic factors.[104] The 9th Circuit, on the other hand,
applies a multi-factor test that does include the consideration of economic
factors.[105]
The court declined to follow either approach but instead adopted its
own multi-factor test that is much closer to the 5th Circuit’s
approach. The court observed: First, the economic feasibility of relocating to a site is
not a First Amendment concern. Second,
the fact that some development is required before a site can accommodate
an adult business does not mean that the land is per se, unavailable.
. . Third, the First Amendment is not concerned with restraints that
are not imposed by the government itself or the physical characteristics
of the sites designated for adult use . . . It is of no import under
Renton that the real estate market may be tight and sites currently
unavailable for sale or lease, or that property owners may be reluctant
to sell to an adult venue.[106]
While there was evidence
produced at the district court that showed obstacles to obtaining a
site for an AEF in the allowed zones, none of the obstacles were government-imposed
or government-caused. Thus,
the district court’s finding that there were between seven and nine
available sites would not be disturbed.
In determining whether those available sites were sufficient
the court went back to the “equal footing” doctrine.
Relevant factors include the population of the area, acreage
available for AEFs as a percentage of overall size, number of existing
AEFs and demand for AEFs as represented by the number of businesses
seeking AEF permits. While criticizing the district court for not
being thorough in its analysis of the sites, the court did not reverse
the finding that the ordinance was constitutional as applied. One factor influencing the court’s decision
was that the county’s total acreage still not annexed into a municipal
corporation was shrinking so that the small number of sites would be
tolerated even though the county’s population was substantial. [v] Young v. City
of Simi Valley[107] The City is an exurban community in
the Los Angeles metropolitan area that has a population of around 100,000. Prior to this litigation there had been no
AEFs within the city. An AEF
ordinance adopted in 1978 was found unconstitutional several years later. In 1992, plaintiff sought a zoning permit for
an AEF. After filing the permit
the city adopted an emergency ordinance placing a moratorium on all
AEFs within the city. In March
199e, the City adopted an AEF ordinance that utilized a classic scatter-site
approach. In addition, no AEF could operate without getting
a discretionary permit. At
that time the ordinance would allow AEFs on about .5 percent of the
total land area of the City, but when you included the buffer zones
at most only 4 sites were available.
Plaintiff’s site was not an available site.
Plaintiff sought to lease another site and inquired of the City
as to its meeting of the AEF ordinance’s requirements.
He was informed the second site was an allowed site so he entered
into a lease of that site. The
city then told the plaintiff that no permit would issue until he provided
additional information including noise mitigation and traffic studies.
None of the additional information was contained in the original
discretionary permit requirements.
Eventually the permit was denied, in part because the City had
in the interim given permission for a bible study group to use a vacant
lot within 1000 feet of the plaintiff’s lot for a once a week outdoor
bible study program. Under the
AEF ordinance the existence of a “sensitive use” as defined by the ordinance,
either before or after the AEF is permitted will cause the AEF to violate
the ordinance. The court found that the ordinance
is unconstitutional per se in large part due to the existence of the
“sensitive use” veto power. The
court applied the Renton
test, specifically the reasonable alternative avenues of communication
doctrine. Plaintiff argued that
because any person may seek a zoning permit to open a “sensitive sue”
within the designated buffer zone while an AEF permit is pending, the
ordinance impermissibly chills First Amendment rights and denies to
AEF operators alternative avenues of communication.
By interpreting the ordinance to require no sensitive uses be
in existence at the time the application is approved and not the time
the application is filed, the city had made it difficult, if not impossible
for an AEF to get a permit. The
court noted that it is unconstitutional “for a local government to impose
a procedural requirement that delegates to certain favored private parties
the unfettered power to veto, at any time prior to governmental approval
and without any standards or reasons, another’s right to engage in constitutionally
protected freedom of expression.”[108] Combining the sensitive use veto with only
4 available sites in a community of 100,000 violated the Renton test.[109] The court further explored the delegation
of veto power to private individuals or groups. The ordinance was drafted to avoid the Freedman problems by having a reasonable time period
in which the decision to issue the permit is to be completed and for
having prompt judicial review. But
the court noted that the sensitive veto provisions, while not acting
as a prior restraint, do act as a restraint that may lead to a total
prohibition of AEFs from the community.
Obviously, the city cannot delegate to private parties, powers
it could not exercise itself. As with Larkin v. Grendel’s Den, Inc.,[110]
a standardless delegation of powers to private institutions is unconstitutional,
even without the infringement of First Amendment rights. The court reversed the district court’s
finding that the buffer zone requirements were unconstitutional as applied
because there were only 4 available sites. While that number is quite low for a community of 100,000 the court
felt it premature to find the ordinance unconstitutional since there
did not appear to be a substantial demand for AEFs in the community. No AEFs were present in the community at the
time the plaintiff applied for his permit.
The court recognized that the absence of AEFs could have been
caused by the chilling effect of the ordinance.
Nonetheless the court found that in looking at the totality of
the circumstances on the record before it that 4 sites was clearly unconstitutional.
[vi] Lim v. City
of Long Beach[111] This case illustrates how a court within
the jurisdiction of the 9th Circuit determines whether there
are “reasonable alternative avenues of communication” available under
the Renton
test. In 1994, the city amended
its AEF ordinance by expanding the buffer zone requirements, prohibiting
AEFs from certain zones where they were previously allowed and by establishing
an 18 month amortization period for non-conforming AEFs. Plaintiff owned two existing AEF’s that violate the 300 foot buffer
provision for residential districts.
The city identified 115 sites it contended were available for
use within the city. The district
court found that 27-28 sites were available and that was sufficient
to meet Renton. The district court
further found that there was no equal protection violation by the disparate
treatment of non-conforming AEF uses. The court initially noted that the
burden of producing evidence and the burden of persuasion on the alternative
avenues issue is clearly on the city.[112] It applied the Topanga Press multi-factor
formula to determine the number of sites that are reasonable available. As noted earlier, this approach allows for
the consideration of economic factors in order to show that the sites
are part of an “actual business real estate market.” The issue in this
case was the consideration of sites containing restrictive covenants
prohibiting the leasing of the premises for AEF purposes.
But the court found that private covenants do not make the sites
unavailable applying an equal footing approach.
After all private owners may restrict the use of the parcels
whether it be for AEF or any other use.
In order to satisfy its burden of proof the City must present
sufficient evidence that the sites it put forward meet the definition
of actual business real estate market.
There is a good faith standard imposed on the city to present
its evidence in a way that the court may judge whether the site is or
will become available. Since
the trial court had placed the burden of proof on the plaintiff and
did not allow the plaintiff to sufficiently present evidence that some
of the site were not legally available, the court remanded the case. Finally, the court found that having an amortization
period requirement for AEF non-conforming uses while not having such
a period for other NCUs did not violate the equal protection clause. There was a rational basis for the city to
treat AEFs differently from other uses because of their secondary effects. [vii] Alameda Books,
Inc. v. City of Los Angeles[113] It has been rare since Renton
was decided to challenge a city’s AEF ordinance on the basis that there
was insufficient proof of the secondary effects of AEFs. In this case, however, the plaintiffs were able to persuade the
9th Circuit that the amendment to the AEF ordinance was not
narrowly tailored to serve a significant governmental interest.[114] The city amended its existing AEF ordinance
to segregate different types of AEF operations so that a single AEF
structure could not, under the minimum distance requirements, have both
video booths and adult books. The
city relied on its original AEF study of secondary effects to support
the new regulation. After noting that courts are to be deferential
to legislative determinations regarding such matters as secondary effects,
the court nonetheless concluded that the entire thrust of the earlier
study deals with the segregation of AEFs from other types of uses, not
the segregation of AEF uses within a single facility. The court found no evidence in the earlier study that a combination
bookstore/arcade/video booth operation produced any of the harmful effects
of an AEF. Even though Renton
specifically authorized cities to rely on studies performed by others,
the court found that the city had not met its burden of proof to show
that the studies were relevant to the problems being addressed by the
multiple use regulation.[115] Having not proven that there was a substantial
governmental interest to be served by prohibiting multiple uses within
a single AEF structure, the city could not enforce such a prohibition. [viii] Diamond v.
City of Taft[116]
While the Ninth Circuit allows for
economic factors to be considered in determining the number of reasonably
available sites, it still is not easy to show that an AEF ordinance
violates the reasonable alternative avenues of communication test. In this case, the owner of a lot located in
a commercial zone that under the AEF ordinance allows an AEF sought
a discretionary permit. The
parcel, however, violated the distance requirements of the ordinance
and the permit was denied. The owner then argued that there were insufficient
available sites in the city under the Renton test. The city is a
rural town with a population of around 6800.
The city identified some 20 potential sites. But because several of the sites were contiguous, the district court
concluded that only 3 sites were available. The city had no existing AEFs and the plaintiff was the first person
to have sought an AEF permit. Applying
the same analysis as Lim the court examined whether the 3 sites
were part of the actual business real estate market. Plaintiff argued that the sites lacked the requisite infrastructure
for a commercial establishment and that many of the sites were currently
occupied. While infrastructure
shortcomings might take a site out of the actual marketplace, in this
case the plaintiff did not prove that any general commercial enterprise
wanting to locate on those sites would need sidewalks and streetlights. The fact that the some of the sites were currently
occupied did not remove them from the real estate market. The city made a good faith effort to identify
appropriate sites including providing detailed information on each site.
That was sufficient to make the 3 sites reasonably available. As to whether the three sites identified
fulfill the city’s obligation under Renton is a separate question
requiring the court to weigh several factors including the ratio of
available land to total land, the number of existing AEFs and the demand
for AEFs. With 3 available sites
and only one applicant for an AEF permit, the court concluded that three
was sufficient. In addition,
in comparing the demand for sites and the number of available sites,
one can expand the number of available sites to all sites since the
plaintiff can choose from any one site that would then prevent other
AEFs from opening. Another consideration in determining whether the number of sites
is reasonable is whether existing AEFs will be able to relocate. In this case there was no relocation problem
and therefore no need to expand the number of available sites to meet
the relocation and new demand needs. [ix] D.H.L. Associates,
Inc. v. O’Gorman[117]
In 1987, the town adopted an AEF ordinance
limiting AEFs to a zoning district that never existed. In 1992, DHL sought an alcoholic beverage license
and a live entertainment license. The
permits were issued. In 1994,
DHL wanted to present nude dancing.
After several town meetings where substantial local opposition
was voiced, the town amended its zoning ordinance to allow AEFs on two
parcels of land, neither of which was owned by DHL.
DHL presented nude dancing for two years claiming it could do
so under its existing permits. It
also sued the town seeking to invalidate the ordinance.
After the suit was filed, but before it was heard, the town amended
its ordinance to increase the size of the AEF zone from 2 parcels to
some 10.4 acres. The district
court only reviewed the amended ordinance and found that it met the
Renton requirements. Because DHL was allowed to continue
nude dancing an argument was made that the case was not ripe for review. The town, however, claimed that as soon as
the litigation was final it would seek to enjoin further nude dancing. That threat of injury was sufficient to make
the case ripe for review. Likewise,
the court did not deal with the constitutionality of the earlier AEF
ordinances because the issues were moot.
DHL had not suffered any injury or damages from those now-repealed
ordinances since it had been allowed to operate as a nude dancing facility. Thus, the court only looked at the most recent
AEF ordinance that greatly expanded the area where AEFs could locate. The town’s AEF ordinance requires an
applicant to seek a discretionary permit.
Since the plaintiff had not sought a permit the issue of prior
restraint was not before the court.
Yet the court, in dicta, clearly indicated that such a permit
requirement was a prior restraint, subject to the Freedman-FW/PBS limitations. There was a claim that the ordinance was adopted
without any reference to the secondary effects of AEFs. The timing of the ordinance might show that
the town was interested in prohibiting nude dancing, not minimizing
the secondary effects. The court,
however, believed that the evidence proffered by town officials showed
an interest in preventing or minimizing the secondary effects of AEFs. Under a minimal scrutiny of the district court’s
finding, the appellate court would not reverse. In reviewing the reasonable alternative
avenues of communication requirement the court was faced with an allegation
that the allowed district only encompassed less than 1% of the total
land area of the town. While
that small a percentage of available land is a factor, it is not determinative. Instead, the court applied the multi-factor
analysis used in the other circuits.
One important factor that the court weighed was the rural nature
of the town and the fact that most of the town’s area was unsuitable
and not desired for commercial use.
There was evidence that 5 lots were available within the allowed
zone and that was sufficient. The
court also noted that testimony from the owner of the 5 lots showed
that the lots were on the market to be sold, if the price was right.
Under the equal footing approach, the claim by DHL that the owner
was charging too high a price was irrelevant.
In addition, the lots had the necessary infrastructure to support
a commercial use. Thus, the
ordinance was upheld, albeit with the caveat that the discretionary
permit requirement would have to provide for a quick decision and an
equally short period of time for judicial review. [x] Ward v. County
of Orange[118]
Plaintiff operated a “swimsuit club”
where the activities were alleged to be either lewd dancing or social
dancing depending on whether you read the affidavits of the owner or
the county. Plaintiff had never sought an AEF permit from
the county since he believed he did not meet the definition of an AEF
as specified in the county zoning ordinance.
Plaintiff sought to have the AEF ordinance declared unconstitutional
per se and as applied. The county,
for its part, had never sought to close down the plaintiff’s operations
or bring an enforcement action under its zoning ordinance. The court found the ordinance constitutional
on its face under Renton. The ordinance is a clear time, place
and manner, content-neutral effort designed to rid the county of the
secondary effects of AEFs. Plaintiff
also argued that the ordinance shifts to the AEF operator the burden
of proof on the issue of whether the predominant business or attraction
of the establishment is not intended to provide sexual stimulation or
gratification. One of the Freedman
safeguards for prior restraints is that the burden of proof must be
on the state to show that the film or publication is not protected by
the First Amendment. As interpreted
by FW/PBS,
however, some of the procedural safeguards only apply to film censorship
regulations, not general business licensing decisions. The Eleventh Circuit, for example, has interpreted
Freedman
to only require access to speedy judicial review in licensing cases
as opposed to requiring access to a speedy judicial decision.[119] Continuing that distinction, the 11th
Circuit finds that the shifting of the burden of proof to the license
applicant to show that the proposed business operation is not an AEF
under the ordinance did not violate Freedman.[120] Having stripped away two of the three Freedman
procedural safeguards, I would not be surprised if Freedman itself is ignored
or overruled insofar as the licensing schemes for AEFs are concerned.
[121] The as-applied constitutional claims are remanded
for a determination as to whether they are ripe for review, given the
fact that the City has not sought to shut the plaintiff down, nor apply
the AEF ordinance to it. The
11th Circuit wanted the district court to determine if there
was a county procedure allowing the plaintiff to seek a determination
that no AEF permit should be sought.
If no such procedure existed, the as applied attack would not
be ripe for judicial review. [xi] Nightclub Management,
Ltd. v. City of Cannon Falls[122]
In another Freedman type case, plaintiff
sought to invalidate various portions of the city’s AEF licensing ordinance.
The AEF had been a pre-existing use outside of the city’s territorial
limits at the time the city sought to annex the area where it was located.
Prior to annexation, the city engaged in various studies showing
the negative secondary effects of AEFs.
At that time there were no AEFs within the city.
Simultaneous with the enactment of the AEF ordinance, the city
adopted a public nudity ordinance making the showing of human genitals
or buttocks illegal, except as part of any theatrical production performed
in a theater. The licensing
provisions require the AEF operator to submit an application to the
city that has 30 days to review the application.
A denial decision may be appealed to the city council within
10 days of that denial and the decision is stayed pending the city council’s
disposition of the appeal. Plaintiff alleged that the AEF ordinance
was content-based since it was based in part on a study conducted by
a private organization that allegedly was devoted to the suppression
of sexually explicit speech and conduct.
Citing Erie the court found that the motive of the city council in
enacting the AEF ordinance is irrelevant to the constitutional question.[123]
Thus the AEF ordinance is a content-neutral time, place and manner regulation. The plaintiff then argued that the
ordinance acted as a prior restraint due to the discretionary decision-making
power of the city official and the lack of prompt judicial review under
Freedman. As to the first prong of Freedman,
namely the decision-making process must be of a specified brief duration,
plaintiff argued that because there was no time limit on how long the
city council could deliberate on an appeal, the ordinance violated Freedman. But the ordinance is valid under Freedman
because of the stay provision. While
the ordinance is unclear as to whether a new AEF operator can open its
business after its application for an initial permit is denied, the
court found that the stay provision would necessarily allow the operator
to open. Thus, the only period of time where there is
a prior restraint is the 30 day period given the city official to render
the initial decision. That is
a sufficiently short and specific period to satisfy Freedman. The court acknowledged the split in
the federal courts regarding the issue of whether judicial access or
judicial resolution is required under the second prong of Freedman.[124] Agreeing with the 4th, 6th
and 9th Circuits, and disagreeing with the 5th,
7th and 11th Circuits, the court found that access
to a judicial forum is a worthless safeguard.
The court criticized those circuits that have found access sufficient
as based on an inference from Justice O’Connor’s holding in FW/PBS, that is unwarranted
because of the Supreme Court’s continued reliance on Freedman. Under the AEF ordinance, the denial decision
is stayed only until the city council renders a decision. After that, judicial appeals are governed by
general statutes that at a minimum require at least 8 months after the
filing of a petition for a writ of certiorari before a judicial decision
will be rendered. That is too
long under Freedman. While the ordinance contained a severability
provision, the court invalidated all parts of the ordinance dealing
with the licensing scheme since they were all tainted by the lack of
prompt judicial decision making. Other
portions of the AEF ordinance were upheld. Relying largely on Erie
the court found that the separately enacted public nudity ordinance
was constitutional. It found
that the ordinance was not overbroad, in large part because of the exception
provided for nudity in certain types of theatrical productions.[125] The court reviewed the impact of Erie
on Barnes
but found that since neither decision was accompanied by a majority
opinion, the Souter concurring opinion in Barnes would continue to serve as the rationale
for reviewing public nudity ordinances. Thus the court applied the O’Brien test to this ordinance and found
that it met all of the requirements including the fact that the requirement
that pasties or G-strings be used was a minimal restriction on speech
designed to achieve an important governmental interest.
As such the public nudity ordinance was upheld. [xii] T Backs Club, Inc. v. Seaton[126] Plaintiff operated an AEF that had
a liquor and city business license.
The AEF offered erotic, but not totally nude, dancing. Plaintiff then built a wall within the building and sought a separate
business license. That part
of the operation did not serve alcoholic beverages. It did, however, provide totally nude dancing. Eventually the City revoked the restaurant
and business permit it had issued for the new business. Plaintiff then filed this action seeking a
preliminary injunction barring the city for revoking its licenses for
the new operation and facially challenging various state statutes imposing
licensing requirements on AEFs. The court, at this stage of the litigation,
found that plaintiff had not established standing to challenge the validity
of the licensing provisions that seem to raise Freedman questions. Even though the city did not raise the standing
issue, the court on its own motion determined that plaintiffs alleged
injury was caused by the application of the state licensing provisions. The court in dicta did find that the statutory
spacing requirement of 1000 feet from various types of uses was not
facially invalid.[127] As to the invalidity of the city ordinance,
the court faced an ordinance dealing with revocation of city licenses
that was not specifically targeted at AEFs. Plaintiff argued that the ordinance violated the Freedman
requirement of providing prompt access to judicial relief from an adverse
licensing decision. But the
court found that the license revocation decision had nothing to do with
any asserted First Amendment right of the plaintiff.
It was clear that plaintiff was operating without one of the
required permits since it was serving food.
The city’s revocation decision on the other permits were based
on the fact that plaintiff had not received the public health permit.
Without further evidence that the decision was made to suppress
the free speech rights of the plaintiff, the court held that plaintiff
had not shown a substantial likelihood of winning on the merits and
therefore denied the preliminary injunction. [xiii] Nightclubs,
Inc. v. City of Paducah[128] Plaintiff has operated an AEF at the
same location since 1987. In
1998, the city enacted an AEF ordinance.
The ordinance imposed a licensing requirement on AEFs as well
as licensing requirements on employees that required employee fingerprints,
social security numbers, disclosure of various offenses within 3 years
of the date of application and a description of the type of activity
that the employee will be undertaking.
The ordinance required the city to approve or deny the license
application within 10 business days after receipt.
A speedy review procedure was provided so that the legislative
body would have to render a decision within 15 days of it receiving
the appeal. The ordinance also
provided that there is a right to seek prompt judicial review of the
city’s decision and hortatorily required the court to promptly review
the petition. Plaintiff filed this action claiming
that the ordinance violated the required
Freedman
safeguards. The court followed
the general rule that prior restraints are presumptively invalid and
the city has a heavy burden to overcome that presumption.
While the ordinance does have a 10 day period of time in which
the city is to approve or reject the permit, the ordinance also requires
the AEF to pass a number of city inspections.
There are no time limits on when these inspections are to take
place. The ordinance does not require the city to
issue the permit if the inspections are not completed within the 10
day period. There are also
mandatory conditions that appear to require actions before the application
can be filed. Again, there are
no limits on when these conditions requiring city actions or approvals
will take place. There is also no stay provision in the ordinance
so that the status quo will not be preserved pending the outcome of
the decision. Thus the first
prong of Freedman
was found to be violated by the ordinance. The court went on to find that notwithstanding
the hortatory statements regarding judicial review, state statutes do
not provide for expedited review of city decisions affecting AEF licenses.
There is no requirement that the city provide the required transcripts
for review of administrative decisions.
In addition, the 6th Circuit requires not only prompt
judicial access, but prompt judicial adjudication of these cases.
Again there is nothing in Kentucky law that would require a judge
to move quickly in reviewing this type of case.
The judge agreed with the reasoning of the court in Nightclub Management that prompt access to
judicial review is a meaningless right,
Citing the famous umpire Bill Klem, “It ain’t nothin’ till I
call it,” until a judicial officer renders a decision the problem of
prior restraints remain unsolved. Thus,
the court found the ordinance violated the second prong of the Freedman test. [xiv] People v. Studio
20, Inc.[129] Under Illinois state law as applicable
to counties, no AEF can be located within 1000 feet of the property
boundary of a place of religious worship.[130] The issue in this case is how the distance
is to be measured. The AEF was
to be located on leased land that was part of a larger parcel, labeled
by the court as the facility parcel.
The closet distance between the boundary line of the church parcel
and the boundary line of the facility parcel was 955.13 feet.
There was a dispute as to whether the lease merely covered the
building, that was not located within 1000 feet of the church, or the
entire facility parcel. Under
the terms of the lease, the leased premises were defined as the building. Yet it was expected that patrons of the AEF would have to park somewhere
on the facility parcel in order to have access to the building. In interpreting the statute, the court noted
that its primary purpose is to prevent AEFs from locating close to churches.
Having a certain rule, namely that measurement is to take place
from property line boundary to property line boundary will achieve that
objective better than an ambiguous rule of facility to facility or facility
to property line. The property
line to property line rule maximizes the protection afforded religious
facilities. A dissenting justice
asserted that the statute was designed to keep offending AEFs a minimum
distance from churches. Therefore,
one has to look at the facility, not the property line of the premises
where the facility is located in order to carry out the intent of the
legislature. [xv] McKillop v.
Onslow County[131] In prior litigation, the County’s AEF ordinance had been upheld against
a First Amendment challenge. McKillop continued to operate her AEF in
violation of the ordinance and a court order.
In this case the county moved for an order to show cause why
the owner should not be held in civil contempt for failing to comply
with the prior court order. The
AEF operator had shut down her business in response to the court order,
but then opened up another facility adjacent to the site of the original
AEF. An undercover law enforcement official testified that defendant’s
activities were in clear violation of the county’s AEF ordinance. The trial court held plaintiff in contempt
for her willful failure to comply with the prior court order. The court found that intent is required to
support a contempt citation, but that the evidence clearly showed that
the owner had the requisite intent to flout the court’s prior order. The fact that McKillop asserted her 5th
Amendment rights in the hearing does not prevent the court from inferring
her guilt in a civil proceeding. [xvi] City of New
York v. “The Black Garter”[132] Under New York City’s AEF ordinance,
AEFs are not allowed in certain manufacturing districts where residences
are allowed as of right as with a discretionary permit. The AEF owner had operated the business in such a manufacturing
district for over 25 years. The
city sought to shut down the AEF under its nuisance abatement law, since
it was allegedly operating in a district where it was not authorized
to be. Applying the hoary canon of construction that
zoning ordinances are to be narrowly construed against the municipality,
the court interpreted the ordinance in favor of the property owner. While the zoning ordinance allowed residential
uses in the manufacturing district applicable to where the AEF is located,
under the terms of the ordinance, residential uses are only allowed
where they would have no adverse impact on existing commercial or manufacturing
uses. If the city allowed residential
uses, it would have an obvious adverse impact on the AEF that has operated
on the same site for 25 years. Since
residential uses could not be approved there is no violation of the
ordinance and therefore no right to claim that a nuisance existed by
virtue of such a violation. [xvii] Harkins v.
Greenville County[133] In 1995, the county enacted an AEF
ordinance limiting AEFs to certain zoning districts and imposing a permit
requirement on their operation. Plaintiffs
alleged that there were only 4-5 sites within the county for AEFs to
locate. The county’s evidence
showed that there were 14 sites. The
permit decision had to be made within 30 days of the application unless
one of seven listed conditions existed.
There was nothing in the ordinance dealing with the issue of
judicial review. Plaintiffs operate several AEFs, none of which
are located in an appropriate zone.
They were sent a notice of violation from the county and told
to remove their businesses from their present locations within one year. After the year amortization period passed,
the plaintiffs challenged the constitutionality of the ordinance as
applied to them. The court agreed with the plaintiffs’
argument that the permit or licensing scheme imposed a system of prior
restraints. Relying of FW/PBS
rather than Freedman,
the court analyzed the dual requirements of having the permit decision
rendered within a specified and reasonable time period during which
the status quo was maintained and providing for the possibility of prompt
judicial review. The court found that the initial decision
by the county official had to be made within a 30 day period and that
was sufficient. In order to
seek judicial review of such decisions, however, South Carolina law
required the applicant to exhaust all of her administrative remedies.
The record did not contain how such decisions were to be administratively
appealed and whether those appellate decisions were similarly time-constrained.
The plaintiffs, however, bore the burden of proof on this issue
and since it was their failure to include all of the ordinances in the
record, the court found in favor of the county on this issue. The court analyzed the split in the
circuits regarding whether the prompt access to judicial review meant
merely access or resolution. The
court agreed with the Fourth, Sixth and Ninth Circuits that only requiring
prompt access makes this safeguard meaningless.
Judicial review is not the filing of the lawsuit, but its resolution.
Because there is no guarantee that a judicial hearing will be
held within any prescribed period of time, much less that a decision
will be rendered within any period of time, the court invalidated the
licensing provisions of the ordinance. The court found that there were reasonable
alternative avenues of communication left open for AEFs after it made
a saving interpretation of the ordinance.
The ordinance prohibited the location of an AEF outside of the
designated S-1 district. That
was the basis for the plaintiffs’ claim that there were only 4-5 sites. The court, however, interpreted the provision
as not excluding AEFs from the unzoned areas of the county. That supported the trial court’s factual finding
that there were 9 available sites for the 6 existing AEFs. Under Renton, that was a sufficient number. The court warned counties when they adopt AEF
ordinances that they need to tailor their ordinances to their individual
needs. [xviii] P.M. Realty
& Investments, Inc. v. City of Tampa[134] P.M. began operating an AEF that served
alcoholic beverages in a section of the city where nightclubs and other
drinking establishments were commonplace.
They never sought a special use permit required to open and operate
an AEF. The city sought a temporary
injunction seeking to shut down the AEF.
The district court granted the injunction. Where the city alleged that the zoning ordinance has been violated,
the court may presume that irreparable harm has occurred. The court held that under the city ordinance,
P.M. was required to get the type of special use permit applicable to
uses that could have adverse effects on adjacent properties without
the inclusion of specialized conditions.
P.M. also argued that the ordinance failed to have the Freedman
safeguard of prompt administrative and judicial review of the permit
decision. Under the terms of
the ordinance the city must review the SUP application within a 30 day
period. A subsequent appeal to the city council must
be decided within 45 days. Judicial
review would be governed by the state statutes dealing with review of
municipal zoning decisions. This
court accepted the view of Freedman
where access to judicial review is sufficient to satisfy the First Amendment.
The court has no problem finding that the zoning restrictions
on AEFs are consistent with the Renton
standards. The trial court
apparently made on-site visits to the list of available sites to see
that they were truly acceptable under Renton. The fact that
other bars and nightclubs in the area did not have to get a SUP would
not support an equal protection claim.
Finally, the court found no regulatory taking because some 38
other uses of the parcel were allowed by the zoning ordinance. [xix] Wise Enterprises,
Inc. v. Unified Government of Athens-Clarke County[135] In November 1997, the county amended
its AEF ordinance prohibiting the issuance of an AEF license if the
AEF is operating in a designated Central Business District (CBD). The ordinance also prohibited the holder of
an AEF licenses from serving or selling alcoholic beverages on the premises.
Plaintiffs were all AEF operators who sought AEF and/or liquor
sales licenses from the county. The permits were denied and plaintiffs challenged
the validity of the 1997 amendments. The plaintiff argued that the prohibition
against the sale of alcohol at an AEF is the regulation of protected
expression, thereby requiring the court to apply heightened scrutiny.
The court disagreed, however, finding that the appropriate level
of scrutiny for this content-neutral ordinance is the intermediate level
O’Brien test.[136] The mixture of alcohol and nude dancing involve
independent elements of expression and conduct. The court cited the Erie case as supporting its
conclusion that the O’Brien test should bed applied. The court easily found that the challenged
regulation furthered a legitimate governmental interest. The minutes of the public hearing and the preamble
to the ordinance showed that the county was concerned with the secondary
effects of AEFs that serve alcohol.
The court found that the regulation was unrelated to the suppression
of free expression and went no further than was necessary to achieve
the objective of minimizing the secondary effects.
The court also found that the prohibition against AEFs in the
CBD was supported by Renton, since AEFs were still allowed in several other locations
outside the CBD. [xx] Bugsy’s, Inc.
v. City of Myrtle Beach[137] Plaintiff operated a sports bar and
restaurant that also contained a separate video poker room. Under the city’s zoning ordinance video poker
machines were allowed as a principal use in seven zoning districts. In a number of other districts, including the
one where plaintiff’s business is located,
they are allowed only as accessory uses. Plaintiff admitted that 95% of its gross sales per month came from
the video poker machines. The
zoning ordinance defined an accessory use as one that is subordinate
to the principal use in area, extent or purpose and that is designed
for the comfort, convenience or necessity of the occupants of the primary
use. There was a specific reference to coin-operated
amusement devices as accessory uses in restaurants and bars. There was no factual dispute that plaintiff’s
video poker business did not comply with the performance standards set
forth in the ordinance for accessory uses.
The ordinance further provided for a two-year amortizaiton period
for non-conforming businesses. Plaintiff argued that local control
over video poker had been preempted by state statute. While the state statute prohibits certain types of local regulation
of video poker operations, it does not occupy the field of regulation.
A city may not limit the number of video poker machines within
city limits, but there was not preemption of locational requirements
on those machines. The court
found that there was no preemption by occupation of the field.
The plaintiff also argued that the ordinance was in direct conflict
with two state statutes, one dealing with the licensing of businesses
where video poker machines were allowed and the second dealing with
video arcades. Again there is no conflict since the city’s zoning ordinance merely
affected the siting of such machines and not with their licensing. The court did not deal with plaintiff’s
vested right argument since it was not properly preserved for appeal.
Obviously, an ad hoc analysis would have to be made to see if
the two year amortization period was reasonable.
The burden of proof on the reasonableness of the period is on
the party attacking the validity of the ordinance.
Since the machines were rented, the court determined that a two
year period to recoup the rental costs of the machines that were valued
at around $ 7500 was reasonable. [xxi] Aguirre v.
State[138] It is reasonably rare to report a criminal
case in this annual review, but this decision by the Texas Court of
Criminal Appeals clearly effects many AEF ordinances. An El Paso AEF ordinance made it a misdemeanor to “own, operate
or conduct any business in an adult bookstore, adult motion picture
theater or nude live entertainment club” within 1000 feet of various
uses. City inspectors cited the owners and employees
of an AEF that they claimed was located within 1000 feet of a parochial
school. The municipal court
convicted all of the defendants and fined them $ 500.00. The issue on appeal is whether the ordinance
required the prosecution to allege and prove a culpable mental state
as a prerequisite to a conviction.[139] Under Penal Code § 6.02 all crimes
require the state to prove that the person acted intentionally, knowingly,
recklessly or with criminal negligence unless in the definition of the
offense the language plainly disposes of any mens rea element. This section is applicable to municipal ordinances.
Thus, unless the language of the El Paso AEF ordinance plainly
disposed of a mens rea requirement, one will exist even where the statute
is silent. Rarely does a legislature
speak plainly on the creation of strict liability criminal offenses.
The Penal Code requires that where there is any doubt the mens
rea requirement attaches. Applying
the statutory canon of construction to the facts, however, is not either. The court noted that strict liability offenses are rarely criminal.
The fact that a person is faced with potential criminal liability
requires a court to rarely find strict liability crimes.
The court looked to see whether the AEF ordinance expressed in
certain provisions an intent to require a mens rea element.
If it then omitted that language in another provision, it would
be evidence of legislative intent to make that second provision a strict
liability crime. The court also examined whether the AEF ordinance
is similar to the types of regulations that dispense with the intent
element, such as public health matters.
In looking at a number of factors, the court concluded that El
Paso had not plainly stated its intent to make a violation of its AEF
ordinance a strict liability offense.
The court noted that the ordinance applied not only to the owner,
but also to the employees who would not be in a position to know or
even to inquire about whether the AEF was violating the city’s zoning
ordinance. [xxii] State v. Russo[140] In a second criminal prosecution, the
court was not concerned as the Texas Court of Criminal Appeals was with
the mens rea requirement for violating an AEF ordinance, but was concerned
with the more typical Renton and Freedman challenges. Defendants started to operate an AEF in a commercial
zone in apparent violation of a traditional Renton-type scatter-site
AEF zoning ordinance. In addition,
the AEF ordinance required all AEFs to be surrounded by a 50 foot perimeter
buffer consisting of plant material approved by the Planning Board. Plaintiffs pleaded guilty and paid substantial
fines, reserving the right to challenge the validity of the ordinance.
The township contained about 5,265 acres of which 32.1 acres
or .52% are available for AEFs. It was alleged that the 50 foot buffer zone
requirement would eliminate much of that acreage from being available. There were 4 existing AEFs in the township
that were not effected by the ordinance because it was specifically
prospective in effect. The court invalidated one of the violations
based on the failure of the defendants to have the required AEF license.
Even though they never sought a license, the defendants have
standing to challenge the licensing provision because of the potential
chilling effect the provision may have on their First Amendment rights.
Relying on state law, rather than Freedman, the court found that since there were essentially
no standards to govern the decision-maker in issuing or denying the
license the licensing provisions were invalid.
The decision-maker must be given “narrow, objective and definite”
standards to avoid invalidation. The court, however, found that the
buffering requirement was valid per se and as applied. The municipal objective of impeding the view
of the interior of the premises served an important governmental interest
of preventing minors and members of the involuntary public from being
exposed to nude dancers. The
ordinance went further by requiring buffering all around the building
even if there were no windows, but the court found that such a requirement
served the governmental objectives of preserving property values, preventing
urban blight and diminishing negative effects on nearby businesses.
The court also rejected the as applied claim finding that there
were sufficient alternative available sites under Renton. While it was true that some of the 32.1 acres
where AEFs were allowed were taken out from the mix, the court considered
that the 4 existing AEFs were allowed to continue operation and when
combined with the remaining acreage met the Renton test. The court also held that several provisions of the AEF ordinance
were not void for vagueness. The court finally held that the New Jersey AEF
statute[141] did
not preempt the township ordinance since it clearly allowed municipalities
to enact more stringent buffer requirements than that provided for by
the statute. [xxiii] Town of Seabrook
v. Vachon Management, Inc.[142]
Defendant leased a portion of a multi-unit building to an AEF
in 1990. In 1991, a town building
inspector discovered that the AEF was conducting live mud and oil wrestling
events on the premises. The
AEF owner was told to upgrade its septic system to deal with the increased
number of persons using the premises.
In 1994, the town enacted an AEF ordinance using the scatter-site
approach. The leased premises could not comply with the
ordinance since they were close to a residence and a church. Several years later, the town received complaints
that the AEF was holding live entertainment, including nude dancing.
The town sought injunctive relief to shut down the nude dancing.
A trial court found that the AEF had antedated the ordinance
and qualified as a NCU. The major issue is whether the pre-1994
activities on the premises constituted a valid NCU. In order to qualify as a NCU, the use must
lawfully exist at the time the restriction is adopted and must continue
to operate as a NCU following the adoption of the ordinance. The owner of the NCU has the burden of proof to show that the current
use is neither new nor impermissible because of the public policy to
limit the extension or enlargement of NCUs.
While the mud and oil wrestling activities antedated the 1994
it was not a valid preexisting use because the owner had never sought
site plan review. Under the
town’s zoning regulations when a use converts from one allowed use to
another it must get site plan approval.
In this case, when the prior use of the leased premises as a
computer repair store was changed to a mud wrestling arena, the owners
were obligated to get site plan approval.
In addition, the present use of the premises for nude dancing
would constitute an expansion of the NCU from its prior wrestling format.
Defendants also argued that the town
should be estopped from enforcing its zoning ordinance because it granted
them amusement licenses after 1994.
New Hampshire recognizes that estoppel against the government
should not be favored because it may injure the public interest.
The court found that defendants had not met their burden of proof
to show that the granting of one-year licenses for the operation of
amusement booths was the equivalent of an affirmative representation
that defendants would be allowed to continue live nude dancing. Finally, the court rejected the claim that the town should be barred
by the equitable doctrine of laches from seeking to enforce its site
plan requirements. As with estoppel,
courts do not easily allow governments to be prohibited from enforcing
their ordinances merely because they have delayed in bringing that enforcement
action. Laches should not be
applied to parties who come in with unclean hands, such as the defendants
who knowingly violated the site plan approval requirements in 1992. [xxiv] City of New
York v. Warehouse on the Block, Ltd.[143] The city sought to shut down the defendant’s
alleged AEF operation under its Nuisance Abatement Law. The AEF ordinance defined an AEF as a commercial
establishment where a substantial portion of the AEF included an adult
book store. An adult book store
is defined as one having a substantial portion of its stock in trade
depicting or describing sexual activities or specified anatomical areas. The defendant’s operation was not located in
an area where AEFs were allowed. Inspectors
for the city found that 64% of the total floor space was allocated for
non-adult material. The guidelines
used by the city use a 60-40 ratio to determine if the establishment
is an AEF. The city argued,
however, that the non-adult material was merely a sham for the adult
books being sold. But the court
found that the city’s guidelines limited administrative discretion to
the 60-40 ratio without allowing for the consideration of other factors
such as sales totals or sham transactions.[144] The defendant could not be judged on the basis
of revised guidelines adopted in response to a Court of Appeals decision
limiting the prior guidelines to the floor space ratio factor. The revised guidelines specifically add a sham
compliance factor. The city
would have to give AEFs notice and an opportunity to come into compliance
with the new guidelines before bringing an action to shut them down
as nuisances. [xxv] T & A’s,
Inc. v. Town Board of the Town of Ramapo[145] Plaintiff operated the only AEF in
the town, opening for business in 1990.
Under New York law, no alcoholic beverages are served and there
is only a limited food operation. The
AEF was located in a rural area, largely inhabited by members of an
orthodox Jewish sect, known as Chasidim.
They voiced objections to the town regarding the operation of
the AEF. In 1997, the town enacted an AEF ordinance
after conducting a study on the secondary effects of AEFs. The ordinance used the scatter-site approach
for zoning AEFs and required them to meet the parking requirements for
restaurants. AEFs that are non-conforming
had one year to relocate, subject to an extension period should they
show that they needed more time to amortize their investment-backed
expectations. The ordinance
was unclear as to whether AEFs were permitted or conditional uses in
the single commercial zone they were allowed in.
If they were conditional uses they would have to apply to the
Planning Board for a CUP and meet several standards including being
in harmony with the development in the district, not be a hindrance
to development of adjacent land and not be detrimental to the site or
adjacent properties. The court found that the ambiguity in classifying
AEFs made it virtually certain that the AEF owner would not have the
benefit of objective criteria in the issuance of a permit, but would
be subject to the unbridled discretion of the planning board. There was some dispute as to the number
of alternative available sites. The
town encompassed some 31,040 acres.
The commercial zone where AEFs were allowed included only 2.1%
of the developable land. The
scatter-site requirements further reduced the potentially available
land to only 0.6%. The actual amount of available land may be
even less. Interestingly the
town in its determination that 9 sites were available used a building
to building measurement criteria, while the AEF owner argued that a
lot-line to lot-line criteria should be used, leaving only 2 available
sites. Since the town used the lot-line measurement
technique for other zoning issues, the court found that the town’s evidence
was not persuasive. In fact,
the court concluded that there were probably no suitable locations for
an AEF providing live entertainment within the town.
While the AEF operator asserted that
the ordinance was not content-neutral since it was triggered by a request
by local residents who objected to having nude dancing in their neighborhood,
the court found that the ordinance satisfied the Renton test for content-neutral
ordinances. The primary purpose
of the ordinance was to prevent the negative secondary effects of AEFs
as stated in the preamble to the ordinance.
The town could rely on studies showing those effects in other
communities. The court would
not second-guess the town and re-examine its motives. The court, however, found that the
ordinance as applied vested too much discretion in the planning board
to satisfy the requirements for prior restraints.
Since CUPs could be denied based on the board’s views on health,
safety, comfort and convenience or any other appropriate standard, the
ordinance was too vague so as to allow for the board to exercise that
power to discriminate based on the content or viewpoint of speech.
The ordinance needed to have assigned AEFs to a particular use
group so that they would not fall within the conditional use category
that gave overly broad discretion to the board to deny the permit. The court also found that the ordinance violated the Renton
requirement that reasonable alternative avenues of expression remain
available after the ordinance was implemented.
The court placed the burden of proof on this issue on the town
to show an adequate number of potential sites that are part of the community’s
actual business and real estate market.
In determining availability the court may look at such factors
as accessibility to the general public, surrounding infrastructure,
pragmatic likelihood of the space becoming available and whether the
sites are suitable for a commercial establishment.
The court noted that prior cases including Renton had found that at least 4% of total
land area may be sufficient, but the percentage available in this case
was less than 1%. While AEF
owners must fend for themselves in the real estate market, there must
be enough usable and available land so that a real, not an illusory,
market exists. [xxvi] City of Dallas
v. North by West Entertainment, Ltd.[146] An AEF sought a permit to operate a
club as an adult theater under the terms of the Dallas AEF ordinance. The application was denied on the basis that
it was located within 1000 feet of another AEF. The AEF sought a location restriction variance that was denied.
Judicial review was sought including a request to enjoin the
city from enforcing its AEF ordinance against it.
The trial court granted the AEFs temporary injunction.
The city appealed the injunction by filing a notice of appeal.
The issue in this case related to whether the filing of the notice
of appeal automatically suspended the enforcement of the temporary injunction
order. The court found that
under Texas Rule of Appellate Procedure 29, the filing of the notice
of appeal did supersede the order because home rule entities do not
have to file a supersedeas or cost bond.
Thus the city’s action superseded the order granting the temporary
injunction. [xxvii] Kismet Investors,
Inc. v. County of Benton[147] Plaintiff operated an AEF. In previous litigation, the county’s attempt
to require it to get a CUP was overturned because it granted too much
discretion to the county to satisfy the First Amendment. That led to the county’s enactment of an AEF
ordinance that restricted AEFs to 4 zoning districts and imposed a scatter-site
requirement. The ordinance provided
a 4 year amortization period for NCUs.
Plaintiff sought a variance shortly before the end of the amortization
period. At the public hearing,
plaintiff proffered evidence of making substantial improvements to the
building that were only beneficial if it remained an AEF. The variance was denied. The scope of judicial review of a variance
decision is limited to see whether it was reasonable. Appellate court review looks at the record
before the county, not the record before the trial court. Under Minnesota law, a variance may only be
granted upon a showing of practical difficulties or particular hardship. Hardship is defined as whether the property
can be put to a reasonable use absent the variance and whether the landowner’s
plight is caused by unique circumstances, not self-imposed by the owner. Plaintiff bore the heavy burden to show that
the variance was justified. The
variance here was not a use variance since the zoning ordinance allowed
such uses, the variance was caused by the application of the AEF ordinance. The court found that the statute created separate
standards for area and use variances. Area variances may be issued upon
a showing of practical difficulties while use variances require the
more stringent standard of particular hardship.
Nonetheless, the court found that the county’s decision not finding
practical difficulties was reasonable.
There were other reasonable uses for the property, including
a restaurant or resort use. The
investment made by the AEF owner was self-imposed and did not create
a building that was so unique that it only had one economically viable
use. There was also no showing that the parcel
was unique. On the First Amendment issue the court
placed the burden of proof on the county. The court had no difficulty finding that the ordinance was content-neutral
and aimed at the secondary effects of AEFs. Studies from other cities were reviewed prior
to the adoption of the ordinance. The
county did not have to make specific findings regarding secondary effects
in the county or from this particular AEF in order to meet the Renton
standard. The court rejected
the Alameda Books
interpretation of Renton that required a more exacting analysis
to determine whether the ordinance is truly aimed at secondary effects.
The court reviewed the evidence regarding the number of available
alternative sites. It concurred with the county that a building-to-building
method, rather than a lot-line-to-lot-line method be used to determine
the number of sites. The county
established that there were over 100 available sites where plaintiff’s
AEF could be relocated. That
clearly met the Renton
standard of having a reasonable opportunity for AEF owners to locate
their operations within the community. [xviii] St. Louis County
v. B.A.P., Inc.[148] BAP operated a business where 20% of
their merchandise was considered adult-oriented products. The business was located within 1000 feet of
a church. The ordinance defined
an AEF as one where 25% or more of the retail value of the merchandise
offered for sale consists of adult material.
In previous litigation, the court had upheld the constitutionality
of the ordinance after the county had received preliminary injunctive
relief ordering BAP to shut down.[149] In this action the county was seeking to cite
BAP for contempt of court since it did not stop selling adult material.
The trial court refused to hold BAP in contempt since it was
selling less than 25% adult-themed material.
The county argued that the 25% figure in the ordinance merely
created a rebuttable presumption and that upon specific proof, businesses
could be found to be AEFs with less than 25% of their sales of adult
material. The ordinance further
defined an AEF as one where a substantial portion of the merchandise
offered for sale are adult-themed.
The court found that the 25% figure was not determinative. A business could be an AEF even if its sales
or merchandise fell below the 25% figure if a substantial portion of
their business dealt with adult material.
Since the trial court had applied the 25% figure as the final
word, the court remanded the case back to determine whether BAP was
in violation of either the ordinance or the injunction. [xxix] City of New
York v. Les Hommes[150] Under administrative guidelines promulgated
by the city an adult establishment is defined in terms of a “substantial
portion” of the business must involve some type of adult material.
In the case of a book store as was involved here the substantial
portion had to be of its “stock-in-trade.”
The guidelines further provide that several factors shall be
considered including the amount of such sock accessible to customers
as compared to the total stock, the amount of floor area and cellar
space accessible to customers containing adult material and the amount
of floor space for adult stock as compared to the total floor space
available for all stock. A
subsequent addition to the guidelines said that if at least 40% of the
floor and cellar area is available for adult use that will meet the
substantial portion requirement. In
addition, if more than 10,000 square feet of a commercial establishment
is occupied by an adult use that establishment is deemed to be an AEF
regardless of its total size. At the trial in this size the city
was only able to prove that 24% of the stock consisted of adult videos. The trial court nonetheless concluded that
Les Hommes was an AEF. It went
behind the numbers and found that compliance with the 60:40 guideline
was, in essence, a ruse or fraud, since the non-adult stock did not
turn over. The court found that under the guidelines
the definition of stock does not account for what is actually being
sold. Thus the fact that the non-adult stock was
not selling as quickly as the adult stock could not be used to label
the operation an AEF. The court
applied a plain meaning approach to the guidelines and refused to allow
the city or the trial court to embellish that plain meaning.
The non-adult stock was accessible and available and therefore
had to be counted in determining whether this was an AEF. The good or bad faith of the AEF owner was irrelevant as long as
it complied with the floor space requirements. [xxx] West End Pink,
Ltd. v. City of Irving[151] A city ordinance limits the sale of alcoholic beverages at restaurants
to no more than 40% of the annual total sales. Plaintiff operated a restaurant in a zoning
district employing that limit. The
city notified the plaintiff that it was in violation of the ordinance
and threatened to rescind its certificate of occupancy.
Plaintiff challenged the constitutionality of the ordinance saying
that it was preempted by the Texas Alcoholic Beverage Code (TABC). Irving, as a home rule city, has all powers
that are not inconsistent with the constitution or general law. The city cannot regulate in an area preempted
by state statute. The plaintiff
argued that the city ordinance was either in direct conflict with various
provisions of the TABC or was preempted by the state’s occupation of
the field. The city argued that
the enactment of 3 validation statutes by the State Legislature since
the passage of the alcoholic beverage limitation provision cured any
potential defect. While validation statutes can cure statutory
defects, they cannot cure constitutional defects. There was no constitutional claim made in this case. The only basis asserted by the plaintiff was
preemption. Since the Legislature
can cure any preemption claim by express legislation giving cities the
power to act, they can cure the same problem through a validation statute. Thus while several decisions have found local
regulation of liquor licensees preempted, none of those cases dealt
with the impact of a validation statute.[152]
[b] Signs and Billboards [i] Knoeffler v.
Town of Mamakating[153] After a dispute with a neighbor and
the Town, the plaintiff began erecting signs on his home and lawn protesting
various matters. He was served
with a notice of violation of the Town’s sign ordinance. After several attempts he was given a temporary permit to allow
the existing signs, provided that they were removed within 6 weeks. The owner sought federal judicial relief and
while the case was pending the Town amended its sign ordinance requiring
permits for all signs, with several exceptions. One type of exempted sign related to protest signs on matters of
public information and convenience, although there were size and number
restrictions on this type of size.
Plaintiff asserted that both the original and amended sign ordinances
violate his First Amendment free speech rights. As to the original sign ordinance,
residential signs are allowed, but only as temporary signs. The ordinance allowed certain on-site commercial
signs without a permit, but required public information and convenience
signs to get a discretionary permit. Clearly, the original ordinance favored commercial over non-commercial
signs. That constitutes a content-based
regulation and violates the Metromedia and Ladue principles. Clearly the ordinance was not narrowly tailored
to achieve the significant governmental objectives of traffic safety
and aesthetics. Likewise by
giving unbridled discretion to the town to grant or deny the permit,
the original ordinance violated the First Amendment. As to the amended ordinance, it too
is a content-based regulation. While
it required permits for all signs, commercial and non-commercial, it
also created 18 classes of exempted signs.
The bases for most of the exemptions was the content or message
of the sign. There is a strong presumption that content-based
sign regulation is unconstitutional. While some of the opinions in Metromedia accept the notion that certain
types of signs may be treated differently based on content, the Second
Circuit follows the view that any type of content-based regulation must
satisfy the strict scrutiny test.[154] Thus, it too violated the First Amendment rights
of the plaintiff. The plaintiff sought compensatory and
punitive damages against individual Town officials and the Town. As to the building inspector who denied the
permits and issued the citations the court found that he was entitled
to qualified immunity. If his
actions did not violate clearly established statutory or constitutional
rights of which a reasonable person would know, immunity attaches. The court found that, as a matter of law, the building inspector
acted objectively unreasonably and thus was entitled to immunity. Without the individual official the Town cannot
be held liable for punitive damages.[155] Plaintiff’s damages claims against the Town,
however, may be asserted. [ii] Adams Outdoor
Advertising v. City of East Lansing[156] This is a regulatory takings case relating to the application of a sign ordinance’s amortization provision relating to rooftop signs. The ordinance was adopted in 1975 and totally prohibited rooftop signs. The ordinance also required the removal of nonconforming signs by May 1, 1987. In litigation commenced at that time, the Michigan Supreme Court concluded that the city had authority to use amortization provisions to eliminate nonconforming signs or other uses.[157] On remand the trial court found that the amortization provision constituted a regulatory taking as to both rooftop and freestanding signs. The court of appeals affirmed that finding as to rooftop signs but reversed and remanded as to freestanding signs. The city appealed the decision as it affects rooftop signs |