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:

  1. Are the private delegate’s actions subject to meaningful review by a state agency or other branch of state government? 2. Are the persons affected by the private delegate’s actions adequately represented in the decisionmaking process? 3. Is the private delegate’s power limited to making rules, or does the delegate also apply the law to particular individuals? 4. Does the private delegate have a pecuniary or other personal interest that may conflict with its public function? 5. Is the private delegate empowered to define criminal acts or impose criminal sanctions? 6. Is the delegation narrow in duration, extent and subject matter? 7. Does the private delegate possess special qualifications or training for the task delegated to it? 8. Has the Legislature provided sufficient standards to guide the private delegate in its work?[39]

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