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CURRENT
DECISIONS ON STATE AND FEDERAL LAW IN PLANNNING AND ZONING Bruce M. Kramer
Maddox Professor of Law Texas Tech University School of Law Lubbock, Texas § 1.01 Introduction § 1.02 Land Use Controls and the Fourteenth Amendment [1]
Federal Cases
[a] Village of Willowbrook v. Olech
[b] Forseth v. Village of Sussex
[c] Woodwind Estates, Ltd. v. Gretkowski
[d] Acierno v. New Caste County
[e] Herr v. Pequea Township
[f] McDonald’s Corp. v. City of Norton
Shores
[g] Vigilante v. Village of Wilmette
[h] Tandy Corp. v. City of Livonia
[i] Scott v. City of Seattle
[j] Burnham v. City of Salem
[k] Odlan Holdings, LLC v. City of New
Orleans
[n] Katz v. Stannard Beach Association [2]
State Cases
[a] FM Properties Operating Co. v. City
of Austin
[b] Turbat Creek Preservation, LLC v. Town
of Kennebunkport
[c] Masi Management, Inc. v. Town of Ogden
[d] Hanlon v. Town of Milton
[e] Thorp v. Town of Lebanon
[f] St. Raymond v. City of New Orleans
[g] East Lampeter Township v. County of
Lancaster § 1.03 Land Use Controls and the Fifth Amendment [1]
Regulatory Takings
[a] Agripost, Inc. v. Miami-Dade County
[b] SGB Financial Services, Inc. v. Consolidated
City of Indianapolis-Marion County
[c] John Corp. v. City of Houston
[d] Jim Sowell Construction Co. v. City
of Coppell
[e] Rau v. City of Garden Plain
[f] Town Council of New Harmony v. Parker
[g] Shemo v. Mayfield Heights
[h] San Remo Hotel L.P. v. City and County
of San Francisco
[i] City of Annapolis v. Waterman
[j] Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency
[k] Santa Monica Beach, Ltd. v. Superior
Court
[l] Isla Verde International Holdings,
Inc. v. City of Camas
[m] Bonnie Briar Syndicate, Inc. v. Town
of Mamaroneck
[n] Lambert v. City and County of San Francisco [2]
Vested Rights
[a] McPherson v. City of Manhattan Beach § 1.04 Land Use Controls and the First Amendment [1]
Religion Clauses
[a] Boyajian v. Gatzunis
[b] Concerned Citizens of Carderock v.
Hubbard
[c] Mayor and Board of Aldermen v. Hudson
[d] Bethlehem Christian Fellowship, Inc.
v. Planning and Zoning Commission
[e] Jesus Fellowship, Inc. v. Miami-Dade
County
[f] First Baptist Church of Perrine v.
Miami-Dade County
[g] Camp Ramah in the Poconos, Inc. v.
Zoning Hearing Board [2]
Free Speech Clause
[a] Adult Entertainment Facilities (AEFs) [i] City
of Erie v. Pap’s A.M. [ii] Charette
v. Town of Oyster Bay [iii] Wise
Enterprises, Inc. v. Unified Government of Athens-Clarke County [iv] David
Vincent, Inc. v. Broward County [v] Young
v. City of Simi Valley [vi] Lim
v. City of Long Beach [vii] Alameda
Books, Inc. v. City of Los Angeles [viii] Diamond
v. City of Taft [ix] D.H.L.
Associates, Inc. v. O’Gorman [x] Ward
v. County of Orange [xi] Nightclub
Management, Ltd. v. City of Cannon Falls [xii] T
Backs Club, Inc. v. Seaton [xiii] Nightclubs,
Inc. v. City of Paducah [xiv] People
v. Studio 20, Inc. [xv] McKillop
v. Onslow County [xvi] City
of New York v. “The Black Garter” [xvii] Harkins
v. Greenville County [xviii] P.M.
Realty & Investments, Inc. v. City of Tampa [xix] Wise
Enterprises, Inc. v. Unified Government of Athens-Clarke County [xx] Bugsy’s,
Inc. v. City of Myrtle Beach [xxi] Aguirre
v. State [xxii] State
v. Russo\ [xxiii] Town
of Seabrook v. Vachon Management Co. [xxiv] City
of New York v. Warehouse on the Block, Ltd. [xxv] T
& A’s, Inc. v. Town Board of the Town of Ramapo [xxvi] City
of Dallas v. North by West Entertainment, Ltd. [xxvii] Kismet
Investors, Inc. v. County of Benton [xxviii] St.
Louis County v. B.A.P., Inc. [xxix] City
of New York v. Les Hommes [xxx] West
End Pink, Ltd. v. City of Irving
[b] Signs and Billboards [i] Knoeffler
v. Town of Mamakating [ii] Adams
Outdoor Advertising v. City of East Lansing [iii] Lawson
v. City of Kankaee [iv] North
Olmsted Chamber of Commerce v. City of North Olmsted [v] City
of Painesville Building Department v. Dworken & Bernstein Co., L.P.A. [vi] Marathon
Outdoor, LLC v. Vesconti § 1.05 Subdivision, Planned Unit Development
and Site Plan Regulation [1]
Impact Fees
[a] American Fabricare v. Township of Falls
[b] Volusia County v. Aberdeen at Ormond
Beach, L.P.
[c] Home Builders Association of Dayton
and the Miami Valley v. City of Beavercreek
[d] Greater Franklin Developers Association,
Inc. v. Town of Franklin
[e] Cimato Bros., Inc. v. Town of Pendleton [2]
Subdivision Regulation, Site Plan Review and Development Regulation
[a] Association of Rural Residents v. Kitsap
County
[b] Equicor Development, Inc. v. Westfield-Washington
Township Plan Commission
[c] Medina County Commissioners Court v.
The Integrity Group
[d] Miles v. Foley
[e] County Council of Prince George’s County
v. Dutcher
[f] Heidrich v. City of Lee’s Summit
[g] Village of Key Biscayne v. Tesaurus
Holdings, Inc.
[h] Hill v. City of Clovis
[i] Smith v. City of Eufaula Planning Commission
[j] Urrutia v. Blaine County
[k] Cathedral Park Condominium Committee
v. District of Columbia Zoning Commission
[l] Davis v. Planning Board of the City
of Somers Point
[m] Blaha v. Board of Ada County Commissioners
[n] City of Colorado Springs v. Securcare
Self Storage, Inc.
[o] In re Appeal of Busik
[p] Madison River R.V. Ltd. V. Town of
Ennis
[q] Largent v. Klickitat County § 1.06 NIMBY Syndrome [1]
Telecommunications Facilities
[a] Petersburg Cellular Partnership v.
Board of Supervisors
[b] 360 Communications Co. of Charlottesville
v. Board of Supervisors
[c] Southwestern Bell Wireless Inc. v.
Johnson County Board of County Commissioners
[d] Industrial Communications & Electronics,
Inc. v. Town of Falmouth
[e] SNET Cellular, Inc. v. Angell
[f] New York SMSA Limited Partnership v.
Town of Clarkstown
[g] Cellular Telephone Co. v. Zoning Board
of Adjustment of Ho-Ho-Kus Borough
[h] APT Pittsburgh Limited Partnership
v. Penn Township Butler County
[i] Omnipoint Communications Enterprises,
L.P. v. Newtown Township
[j] Omnipoint Communications Enterprises,
L.P. v. Charlestown Township
[k] Cellular Telephone Co. v. Zoning Board
of Adjustment of Borough of Harrington Park
[l] Vertical Broadcasting, Inc. v. Town
of Southampton
[m] Airtouch Cellular v. City of El Cajon
[n] Telecorp Realty, LLC v. Town of Edgartown
[o] Omnipoint Communications, Inc. v. Planning
& Zoning Commission
[p] APT Minneapolis, Inc. v. Eau Claire
County
[q] AT&T Wireless PCS Inc. v. City
of Atlanta
[r] Omnipoint Communications MB Operations,
LLC v. Town of Lincoln
[s] Cellco Partnership v. Town of Douglas
[t] Freeman v. Burlington Broadcasters,
Inc.
[u] Adelman v. Town of Baldwin
[v] Telespectrum, Inc. v. Public Service
Commission of Kentucky
[w] SBA Communications, Inc. v. Zoning
Commission
[x] Northeast Towers, Inc. v. Zoning Board
of Adjustment
[y] Stephenson v. Town of Garner
[z] APT Pittsburgh Limited Partnership
v. Lower Yoder Township
[aa] Proper v. Southwestern Bell Mobile
Systems [2]
Group Homes
[a] Marriott Senior Living Services, Inc.
v. Springfield Township
[b] Borden v. Planning and Zoning Commission
[c] Welsh v. Town of Amherst Zoning Board
of Appeals
[d] County of Charleston v. Sleepy Hollow
Youth, Inc.
[e] Light of Life Ministries, Inc. v. Cross
Creek Township
[f] San Miguel v. City of Windcrest
[g] Mackowski v. Planning & Zoning
Commission of Town of Stratford [3]
Mining and the Extractive Industries
[a] Gun Lake Association v. County of Aitkin
[b] Fred McDowell, Inc. v. Board of Adjustment
[c] Skenesborough Stone, Inc. v. Village
of Whitehall
[d] Native Village of Eklutna v. Board
of Adjustment
[e] Vulcan Materials v. Greenville County
Board of Zoning Appeals
[e] Wende v. Board of Adjustment of the
City of San Antonio [4]
Agricultural Operations
[a] Richardson v. Township of Brady
[b] Perkins v. Madison County Livestock
& Fair Association
[c] In re Conditional Use Permit
[d] R.L. Hexum & Associates, Inc. v.
Rochester Township Board of Supervisors
[e] Dail v. York County
[f] Wilbur Residents for a Clean Neighborhood
v. Douglas County
[g] Friends of the Creek v. Jackson County
[h] Altenburg v. Board of Supervisors of
Pleasant Mound Township [5]
Sanitary Landfills
[a] State ex rel. Teefey v. Board of Zoning
Adjustment
[b] Metropolitan Development Commission
of Marion County v. Schroeder
[c] Demolition Landfill Services, LLC v.
City of Duluth
[d] St Johns County v. Smith § 1.07 Potpourri [1]
Discretionary Permits
[a] Special Exceptions – Conditional Use
Permits [i] Harris
v. Jefferson County Board of Zoning Adjustment [ii] Florida
Power & Light Co. v. City of Dania [iii] Kosalka
v. Town of Georgetown [iv] City
of Alpharetta v. Estate of Sims [v] Tenderloin
Housing Clinic, Inc. v. Astoria Hotel, Inc.
[b] Variances [i] Pinnell
v. Kight [ii] Nolan
v. City of Eden Prairie [iii] City
of Battle Creek v. Madison County Board of Adjustment [iv] Craik
v. County of Santa Cruz [v] Baker
v. Brownlie [vi] French
Quarter Citizens for Preservation of Residential Quality, Inc. v. New
Orleans City Planning Commission [vii] North
Avenue Properties, LLC v. Zoning Board of Appeals [viii] Stop
& Shop Supermarket Co. v. Board of Adjustment [ix] Cole
v. Board of Adjustment of the City of Huron [2]
Intergovernmental Conflicts
[a] Ventura v. City of Seattle
[b] Village of Ridgefield Park v. New York,
Susquehanna & Western Railway Corp.
[c] Florida East Coast Railway Co. v. City
of West Palm Beach
[d] City of Bridgeton v. City of St. Louis
[e] Kent County Aeronautics Board v. Department
of State Police
[f] In re Commercial Airfield
[g] City of New Rochelle v. Town of Mamaroneck
[3]
Exclusionary Zoning
[a] City of Freeport v. Vandergrifft
[b] Town of Telluride v. Lot Thirty-Four
Venture, LLC
[c] King v. City of Bainbridge
[d] Bixler v. LaGrange County Building
Department
[e] Home Builders Association of Maine,
Inc. v. Town of Eliot
[f] Caswell v. Pierce County
[g] Montgomery Crossing Associates v. Township
of Lower Gwynedd
[h] Toll Brothers, Inc. v. Township of
West Windsor
[i] Dews v. Town of Sunnyvale
[j] Northfield Development Co., Inc. v.
City of Burlington [4]
Rezoning
[a] Wenatchee Sportsmen Association v.
Chelan County
[b] Falcke v. County of Douglas
[c] Boris v. Garbo Lobster Co., Inc.
[d] Buck Lake Alliance, Inc. v. Board of
County Commissioners
[e] Willoughby v. Wolfson Group, Inc.
[f] Town of Florence v. Sea Lands, Ltd.
[g] Schrank v. Pennington County Board
of Commissioners
[h] McCollum v. City of Berea
[i] Harmon City, Inc. v. Draper City
[j] Northern Trust Bank/Lake Forest, N.A.
v. County of Lake
[k] Harvey v. Town of Marion
[l] Perry-Worth Concerned Citizens v. Board
of Commissioners of Boone County
[m] Home Depot U.S.A., Inc. v. City of
Portland
[n] Briarwood, Inc. v. City of Clarksdale
[o] Rossano v. Townsend [5]
Nonconforming Uses
[a] Money v. Zoning Hearing Board of Haverford
Township
[b] Kirkpatrick v. Village Council for
the Village of Pinehurst [6]
Historic Preservation
[a] City of Jacksonville v. Huffman
[b] Handicraft Block Limited Partnership
v. City of Minneapolis
[c] Fabiano v. City of Boston
[d] Galveston Historical Foundation v.
Zoning Board of Adjustment [7]
Accessory Uses
[a] Kam Hampton I Realty Corp. v. Board
of Zoning Appeals
[b] National Cathedral Neighborhood Association
v. District of Columbia Board of Zoning Adjustment
[c] Dupont Circle Citizens Association
v. District of Columbia Board of Zoning Adjustment
[d] State v. Alawy § 1.01
Introduction The past year saw an increase in both
state and federal reported cases with the number rising near 400 in
state cases and over 50 for federal cases.
There were several Supreme Court decisions rendered that will
have a direct or indirect impact on governmental regulation of land
use including Village of
Willowbrook v. Olech. The
federalization of land use control as it affects the telecommunications
industry was made apparent by the many cases arising under the Telecommunications
Act, a trend seen in the past two years. In addition, there appears to be a growing
number of “omnibus” constitutional challenges to zoning decisions based
on regulatory taking, substantive or procedural due process and equal
protection grounds. In most
cases I will report these “omnibus” attacks in the section which appeared
to be the most important to the deciding court.
This article follows the basic outline used in prior years.[1] As in past years I have intentionally omitted
analyzing cases where the main issues are primarily parochial in nature,
although as the author I reserve the right to include cases that may
appear to the reader to be narrow and limited, but due to some quirk
in my personality appeals to my intellectual curiosity. § 1.02 Land Use Controls and the Fourteenth
Amendment [1]
Federal Cases
[a] Village of Willowbrook v. Olech[2]
I have noted an increase in the number
of equal protection claims brought in the land use context in past few
years.[3] The Supreme Court has encouraged this type
of claim in Olech. The Olechs sought to connect their parcel to
the Village’s water supply. The
Village agreed to do so, but only on the condition that they grant the
Village a 33- foot easement. The
Olechs objected because they believed that Village policy was to require
only a 15-foot easement. After
a three month delay, the Village agreed to the connection and only required
a 15-foot easement. The Olechs then sued under § 1983 asserting
that the Village spitefully and intentionally denied them the hook-up
because of prior ill will between Village officials and them. The issue is whether or not an equal protection claim can be asserted
for a “class of one” where no wider class is alleged to have suffered
discrimination. The court looked to the purpose of
the Equal Protection Clause that is “to secure every person within the
State’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its improper
execution through duly constituted agents.”[4] The allegations of the complaint are sufficient
to raise questions of fact as to whether the Village’s demands were
“irrational and wholly arbitrary.”
That is the standard for an equal protection claim and thus the
complaint should not have been dismissed.
The court did not agree with the Seventh Circuit’s opinion that
also found an equal protection cause of action based on the “ill will”
allegations made by the Olechs.[5] Justice Breyer, in offering a short concurring
opinion, tries to deal with the Village concern that § 1983 actions
will be springing forth like dandelions from run-of-the-mill zoning
disputes based on this rather broad reading of the Equal Protection
Clause. Almost by definition, individual zoning decisions
treat one landowner differently than another. If that factual circumstance will allow for
a § 1983 action to be filed almost every permit denial may end up in
federal court. Justice Breyer
would deflect that trip to the federal courthouse by emphasizing Judge
Posner’s view that the critical factor is not a wrong or incompetent
decision, but the existence of an “ill will” or personal animus driving
the decision.[6] Merely alleging that a decision lacks a rational
basis should not be the basis for filing a § 1983 equal protection claim
according to Breyer.[7]
[b] Forseth v. Village of Sussex[8] The owners submitted a preliminary
plat to the Village Plan Commission for approval. The Plan Commission objected to a number of features of the plat,
including its failure to delineate wetlands and the inclusion of several
lots with direct access to an arterial street.
Preliminary plat approval was granted in September 1993. Shortly thereafter a new president of the village
board was elected who had openly opposed the development. The final plat was rejected, due in part to
the president’s insistence on a new wetlands survey that showed substantially
more acreage as wetlands than was shown in the preliminary plat. The owners alleged that the Commission at the
president’s insistence conditioned final plat approval on the sale of
a buffer tract to the president at below market rates. Eventually the final plat was approved and then the owners filed
this omnibus § 1983 action alleging substantive due process, equal protection
and regulatory takings claims. The key issue on the due process claim
is whether the Hamilton Bank ripeness doctrine applies.
If it applies, not only does the agency have to make a final
decision, but the owner must seek state judicial relief before filing
a federal court action. While
there were some earlier decisions that hinted that Hamilton Bank
should not apply to due process claims,[9]
the type of claim involved here requires the owner to seek state judicial
relief. In essence, the owner
is asserting that his property interest is being taken for a private
purpose. Whether couched as a regulatory taking or as
a substantive due process violation the policies underlying Hamilton Bank
are equally applicable.[10] Clearly having not exhausted their available
state remedies, the owners have not complied with the exhaustion component
of Hamilton Bank.
The court observed that “litigants who neglect or disdain their
state remedies are out of court, period.”[11] Thus from both the ripeness doctrine perspective
and the substantive law perspective, the 7th Circuit makes
it difficult to file “garden-variety” land use cases in federal court
under the guise of substantive due process violations. As to the equal protection claim, however,
the court categorized such claims as surrogates for takings claims where
ripeness would be required or as bona fide claims where the ripeness
doctrine is not applicable. Relying
on its own decision in Olech and the clear allegations of malice
and ill will, the court finds that there were sufficient grounds for
the equal protection claim of the owner.
There appeared to the court to be actions bordering on official
oppression and misconduct if the allegations regarding the village board
president were proven.
[c] Woodwind Estates, Ltd. v. Gretkowski[12]
In a case decided a week after Olech,
the Third Circuit reaffirmed its approach to substantive due process
claims and followed the Seventh Circuit’s lead in zeroing in on intentional
governmental official misconduct as actionable under the 14th
Amendment. Plaintiffs were developers who sought approval
to build a subdivision on 75 acres of land. The proposed project involved “low income” housing and the developer
had received substantial tax credits from the state to subsidize the
project. The development plan
was originally submitted in March 1996.
The attorney for the Township planning commission advised the
commission that the plan met all of the subdivision criteria.
Opposing neighbors were also present at the hearing and voice
several objections. They urged
that the project be defined as a planned unit development (PUD) and
not a straight subdivision. After
a six month delay the commission voted to recommend a denial of the
subdivision plan. The Board of Supervisors voted unanimously
to deny approval. No reasons
were originally given until the attorney for the neighbors informed
the Board that they needed to provide reasons for the denial.
That attorney then drafted a denial letter giving several reasons. The letter, in slightly amended form, was then
sent to the developers. Included
in the letter was the conclusion that the proposal was for a PUD and
because the proposal lacked several ordinance requirements for a PUD,
it needed to be resubmitted within a year as a PUD.
The plaintiff then filed this action asserting that the actions
of the Commission, Board and several individual officials violated its
substantive due process rights. As noted by the district court, the
Third Circuit’s definition of what is a protectible property interest
under a substantive due process claim is ill-defined.
The Third Circuit has been more willing than other circuits in
finding a protectible property interest, if the governmental decision
affects the use and enjoyment of property.[13] In this case, the subdivision ordinance is
interpreted to give the Commission and Board no discretion if the objective
standards are met. The facts
undisputably showed that the standards had been complied with. Thus the court finds that the plaintiffs have
a protectible property interest. Once that determination is made the
developer must show that the governmental action was “arbitrary, irrational,
or tainted by improper motive.”[14] Those types of issues are clearly fact issues
to be decided by the trier of fact.
The motives of the township in denying the permits can be reviewed
by a jury to determine whether the permits were denied for an improper
purpose. In this case, the defendants had no legitimate
basis for inquiring about the socioeconomic background and income levels
of the proposed purchasers of the housing. Likewise, the adoption by the Board of a letter proposed by an attorney
representing the opposing neighbors also raises a fact issue that a
jury may look at. The court
also refused to uphold the summary judgment as to the liability of the
individual officials because there was a fact issue as to whether they
were entitled to good faith immunity.
The result in this case clearly aligns it with the Seventh Circuit
in Olech regarding the importance
of motive in making decisions. While
it is often said that courts are not to look at the motive of legislators,
the Third Circuit decision would allow, if not require, the Township
officials to be placed on the stand and be asked questions about why
they voted to deny the subdivision permit.
This approach is obviously a two-edged sword. It may deter bad decisions made by officials for the wrong purpose,
but it also may allow juries to second guess such decisions and open
up legislators to questions that may hinder the legislative process.
[d] Acierno v. New Castle County[15]
The owner filed a development plan
at a time the parcel was zoned for PUD.
The parcel was downzoned to a residential district that did not
allow for the proposed development of 322 apartment units. After a first round of litigation removed the individual defendants,
the parties agreed to a trial on the merits of the substantive due process
claim, after the owner waived any claims for monetary relief. Unlike Gretkowski, which seemingly toughens the
Third Circuit’s view of what is a protectible property interest, this
court goes back to the position that ownership of property vel non is
worthy of substantive due process protection.[16]
Normally one does not have a vested right or a protectible interest
in existing zoning. The downzoning
decision may have been irrational, but certainly under a ‘strict entitlements’
approach it would not be remediable using a substantive due process
theory. Nonetheless the court finds that plaintiff
had a protectible property interest in the existing zoning classification. The second part of the test is whether
the downzoning decision was truly irrational or arbitrary. The owner sought to assert an “improper motive”
test as well, based in part on Gretkowski. But the court distinguished Gretkowski on the basis that it involved
administrative actions taken to enforce existing zoning laws. This case, in part, involves a legislative rezoning decision and
is to be judged solely on whether it was rationally related to a legitimate
government interest. Thus, the
motives of the legislators is irrelevant.[17] The City offered two reasons for the downzoning;
the first would make the parcel more compatible with the surrounding
neighborhood that was largely single family residential and the second
related to traffic congestion in the area. Both of these reasons are legitimate governmental objectives and
the downzoning decision advances those objectives. Therefore, the substantive due process claim fails. But as to the decision of the council to void
the record plan of the owner, the court determined that it was an administrative
decision and thus inquiry into the motive is appropriate. The court did not grant the relief sought but
asked for further briefing on this issue in light of the court’s earlier
finding that the rezoning decision itself was rationally based. As to the owner’s equal protection
claim, the court again noted the limited judicial review afforded such
claims in the absence of a fundamental right or a suspect classification. The showing that the council did not downzone
other land similarly situated does not show irrationality. Because of the traffic and other concerns of
the council, the equal protection claim was likewise barred. A similar finding was made as to the administrative
decision to void the record plan. Plaintiff finally sought relief under
the state law doctrine of equitable estoppel. Under Delaware law the doctrine could be raised as a defense against
the enforcement of a zoning regulation where: “(1) a party, acting in
good faith, (2) on affirmative acts of a municipal corporation, (3)
makes expensive and permanent improvements in reliance thereon, and
(4) the equities strongly favor the party seeking to invoke the doctrine.”[18]
There was no evidence in the record showing that the owner made expensive
or permanent improvements on the land.
The only proven expenditure was $38,500 spent on architectural
and engineering fees. The court
did not allow the owner to show the acquisition cost of the site since
the acquisition was not made in reliance on any affirmative act of the
city. |