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CURRENT
DECISIONS ON STATE AND FEDERAL LAW IN PLANNNING AND ZONING Bruce M. Kramer
Maddox Professor of Law Texas Tech University School of Law Lubbock, Texas § 1.01 Introduction § 1.02 Land Use Controls and the Fourteenth Amendment [1]
Federal Cases
[a] Village of Willowbrook v. Olech
[b] Forseth v. Village of Sussex
[c] Woodwind Estates, Ltd. v. Gretkowski
[d] Acierno v. New Caste County
[e] Herr v. Pequea Township
[f] McDonald’s Corp. v. City of Norton
Shores
[g] Vigilante v. Village of Wilmette
[h] Tandy Corp. v. City of Livonia
[i] Scott v. City of Seattle
[j] Burnham v. City of Salem
[k] Odlan Holdings, LLC v. City of New
Orleans
[n] Katz v. Stannard Beach Association [2]
State Cases
[a] FM Properties Operating Co. v. City
of Austin
[b] Turbat Creek Preservation, LLC v. Town
of Kennebunkport
[c] Masi Management, Inc. v. Town of Ogden
[d] Hanlon v. Town of Milton
[e] Thorp v. Town of Lebanon
[f] St. Raymond v. City of New Orleans
[g] East Lampeter Township v. County of
Lancaster § 1.03 Land Use Controls and the Fifth Amendment [1]
Regulatory Takings
[a] Agripost, Inc. v. Miami-Dade County
[b] SGB Financial Services, Inc. v. Consolidated
City of Indianapolis-Marion County
[c] John Corp. v. City of Houston
[d] Jim Sowell Construction Co. v. City
of Coppell
[e] Rau v. City of Garden Plain
[f] Town Council of New Harmony v. Parker
[g] Shemo v. Mayfield Heights
[h] San Remo Hotel L.P. v. City and County
of San Francisco
[i] City of Annapolis v. Waterman
[j] Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency
[k] Santa Monica Beach, Ltd. v. Superior
Court
[l] Isla Verde International Holdings,
Inc. v. City of Camas
[m] Bonnie Briar Syndicate, Inc. v. Town
of Mamaroneck
[n] Lambert v. City and County of San Francisco [2]
Vested Rights
[a] McPherson v. City of Manhattan Beach § 1.04 Land Use Controls and the First Amendment [1]
Religion Clauses
[a] Boyajian v. Gatzunis
[b] Concerned Citizens of Carderock v.
Hubbard
[c] Mayor and Board of Aldermen v. Hudson
[d] Bethlehem Christian Fellowship, Inc.
v. Planning and Zoning Commission
[e] Jesus Fellowship, Inc. v. Miami-Dade
County
[f] First Baptist Church of Perrine v.
Miami-Dade County
[g] Camp Ramah in the Poconos, Inc. v.
Zoning Hearing Board [2]
Free Speech Clause
[a] Adult Entertainment Facilities (AEFs) [i] City
of Erie v. Pap’s A.M. [ii] Charette
v. Town of Oyster Bay [iii] Wise
Enterprises, Inc. v. Unified Government of Athens-Clarke County [iv] David
Vincent, Inc. v. Broward County [v] Young
v. City of Simi Valley [vi] Lim
v. City of Long Beach [vii] Alameda
Books, Inc. v. City of Los Angeles [viii] Diamond
v. City of Taft [ix] D.H.L.
Associates, Inc. v. O’Gorman [x] Ward
v. County of Orange [xi] Nightclub
Management, Ltd. v. City of Cannon Falls [xii] T
Backs Club, Inc. v. Seaton [xiii] Nightclubs,
Inc. v. City of Paducah [xiv] People
v. Studio 20, Inc. [xv] McKillop
v. Onslow County [xvi] City
of New York v. “The Black Garter” [xvii] Harkins
v. Greenville County [xviii] P.M.
Realty & Investments, Inc. v. City of Tampa [xix] Wise
Enterprises, Inc. v. Unified Government of Athens-Clarke County [xx] Bugsy’s,
Inc. v. City of Myrtle Beach [xxi] Aguirre
v. State [xxii] State
v. Russo\ [xxiii] Town
of Seabrook v. Vachon Management Co. [xxiv] City
of New York v. Warehouse on the Block, Ltd. [xxv] T
& A’s, Inc. v. Town Board of the Town of Ramapo [xxvi] City
of Dallas v. North by West Entertainment, Ltd. [xxvii] Kismet
Investors, Inc. v. County of Benton [xxviii] St.
Louis County v. B.A.P., Inc. [xxix] City
of New York v. Les Hommes [xxx] West
End Pink, Ltd. v. City of Irving
[b] Signs and Billboards [i] Knoeffler
v. Town of Mamakating [ii] Adams
Outdoor Advertising v. City of East Lansing [iii] Lawson
v. City of Kankaee [iv] North
Olmsted Chamber of Commerce v. City of North Olmsted [v] City
of Painesville Building Department v. Dworken & Bernstein Co., L.P.A. [vi] Marathon
Outdoor, LLC v. Vesconti § 1.05 Subdivision, Planned Unit Development
and Site Plan Regulation [1]
Impact Fees
[a] American Fabricare v. Township of Falls
[b] Volusia County v. Aberdeen at Ormond
Beach, L.P.
[c] Home Builders Association of Dayton
and the Miami Valley v. City of Beavercreek
[d] Greater Franklin Developers Association,
Inc. v. Town of Franklin
[e] Cimato Bros., Inc. v. Town of Pendleton [2]
Subdivision Regulation, Site Plan Review and Development Regulation
[a] Association of Rural Residents v. Kitsap
County
[b] Equicor Development, Inc. v. Westfield-Washington
Township Plan Commission
[c] Medina County Commissioners Court v.
The Integrity Group
[d] Miles v. Foley
[e] County Council of Prince George’s County
v. Dutcher
[f] Heidrich v. City of Lee’s Summit
[g] Village of Key Biscayne v. Tesaurus
Holdings, Inc.
[h] Hill v. City of Clovis
[i] Smith v. City of Eufaula Planning Commission
[j] Urrutia v. Blaine County
[k] Cathedral Park Condominium Committee
v. District of Columbia Zoning Commission
[l] Davis v. Planning Board of the City
of Somers Point
[m] Blaha v. Board of Ada County Commissioners
[n] City of Colorado Springs v. Securcare
Self Storage, Inc.
[o] In re Appeal of Busik
[p] Madison River R.V. Ltd. V. Town of
Ennis
[q] Largent v. Klickitat County § 1.06 NIMBY Syndrome [1]
Telecommunications Facilities
[a] Petersburg Cellular Partnership v.
Board of Supervisors
[b] 360 Communications Co. of Charlottesville
v. Board of Supervisors
[c] Southwestern Bell Wireless Inc. v.
Johnson County Board of County Commissioners
[d] Industrial Communications & Electronics,
Inc. v. Town of Falmouth
[e] SNET Cellular, Inc. v. Angell
[f] New York SMSA Limited Partnership v.
Town of Clarkstown
[g] Cellular Telephone Co. v. Zoning Board
of Adjustment of Ho-Ho-Kus Borough
[h] APT Pittsburgh Limited Partnership
v. Penn Township Butler County
[i] Omnipoint Communications Enterprises,
L.P. v. Newtown Township
[j] Omnipoint Communications Enterprises,
L.P. v. Charlestown Township
[k] Cellular Telephone Co. v. Zoning Board
of Adjustment of Borough of Harrington Park
[l] Vertical Broadcasting, Inc. v. Town
of Southampton
[m] Airtouch Cellular v. City of El Cajon
[n] Telecorp Realty, LLC v. Town of Edgartown
[o] Omnipoint Communications, Inc. v. Planning
& Zoning Commission
[p] APT Minneapolis, Inc. v. Eau Claire
County
[q] AT&T Wireless PCS Inc. v. City
of Atlanta
[r] Omnipoint Communications MB Operations,
LLC v. Town of Lincoln
[s] Cellco Partnership v. Town of Douglas
[t] Freeman v. Burlington Broadcasters,
Inc.
[u] Adelman v. Town of Baldwin
[v] Telespectrum, Inc. v. Public Service
Commission of Kentucky
[w] SBA Communications, Inc. v. Zoning
Commission
[x] Northeast Towers, Inc. v. Zoning Board
of Adjustment
[y] Stephenson v. Town of Garner
[z] APT Pittsburgh Limited Partnership
v. Lower Yoder Township
[aa] Proper v. Southwestern Bell Mobile
Systems [2]
Group Homes
[a] Marriott Senior Living Services, Inc.
v. Springfield Township
[b] Borden v. Planning and Zoning Commission
[c] Welsh v. Town of Amherst Zoning Board
of Appeals
[d] County of Charleston v. Sleepy Hollow
Youth, Inc.
[e] Light of Life Ministries, Inc. v. Cross
Creek Township
[f] San Miguel v. City of Windcrest
[g] Mackowski v. Planning & Zoning
Commission of Town of Stratford [3]
Mining and the Extractive Industries
[a] Gun Lake Association v. County of Aitkin
[b] Fred McDowell, Inc. v. Board of Adjustment
[c] Skenesborough Stone, Inc. v. Village
of Whitehall
[d] Native Village of Eklutna v. Board
of Adjustment
[e] Vulcan Materials v. Greenville County
Board of Zoning Appeals
[e] Wende v. Board of Adjustment of the
City of San Antonio [4]
Agricultural Operations
[a] Richardson v. Township of Brady
[b] Perkins v. Madison County Livestock
& Fair Association
[c] In re Conditional Use Permit
[d] R.L. Hexum & Associates, Inc. v.
Rochester Township Board of Supervisors
[e] Dail v. York County
[f] Wilbur Residents for a Clean Neighborhood
v. Douglas County
[g] Friends of the Creek v. Jackson County
[h] Altenburg v. Board of Supervisors of
Pleasant Mound Township [5]
Sanitary Landfills
[a] State ex rel. Teefey v. Board of Zoning
Adjustment
[b] Metropolitan Development Commission
of Marion County v. Schroeder
[c] Demolition Landfill Services, LLC v.
City of Duluth
[d] St Johns County v. Smith § 1.07 Potpourri [1]
Discretionary Permits
[a] Special Exceptions – Conditional Use
Permits [i] Harris
v. Jefferson County Board of Zoning Adjustment [ii] Florida
Power & Light Co. v. City of Dania [iii] Kosalka
v. Town of Georgetown [iv] City
of Alpharetta v. Estate of Sims [v] Tenderloin
Housing Clinic, Inc. v. Astoria Hotel, Inc.
[b] Variances [i] Pinnell
v. Kight [ii] Nolan
v. City of Eden Prairie [iii] City
of Battle Creek v. Madison County Board of Adjustment [iv] Craik
v. County of Santa Cruz [v] Baker
v. Brownlie [vi] French
Quarter Citizens for Preservation of Residential Quality, Inc. v. New
Orleans City Planning Commission [vii] North
Avenue Properties, LLC v. Zoning Board of Appeals [viii] Stop
& Shop Supermarket Co. v. Board of Adjustment [ix] Cole
v. Board of Adjustment of the City of Huron [2]
Intergovernmental Conflicts
[a] Ventura v. City of Seattle
[b] Village of Ridgefield Park v. New York,
Susquehanna & Western Railway Corp.
[c] Florida East Coast Railway Co. v. City
of West Palm Beach
[d] City of Bridgeton v. City of St. Louis
[e] Kent County Aeronautics Board v. Department
of State Police
[f] In re Commercial Airfield
[g] City of New Rochelle v. Town of Mamaroneck
[3]
Exclusionary Zoning
[a] City of Freeport v. Vandergrifft
[b] Town of Telluride v. Lot Thirty-Four
Venture, LLC
[c] King v. City of Bainbridge
[d] Bixler v. LaGrange County Building
Department
[e] Home Builders Association of Maine,
Inc. v. Town of Eliot
[f] Caswell v. Pierce County
[g] Montgomery Crossing Associates v. Township
of Lower Gwynedd
[h] Toll Brothers, Inc. v. Township of
West Windsor
[i] Dews v. Town of Sunnyvale
[j] Northfield Development Co., Inc. v.
City of Burlington [4]
Rezoning
[a] Wenatchee Sportsmen Association v.
Chelan County
[b] Falcke v. County of Douglas
[c] Boris v. Garbo Lobster Co., Inc.
[d] Buck Lake Alliance, Inc. v. Board of
County Commissioners
[e] Willoughby v. Wolfson Group, Inc.
[f] Town of Florence v. Sea Lands, Ltd.
[g] Schrank v. Pennington County Board
of Commissioners
[h] McCollum v. City of Berea
[i] Harmon City, Inc. v. Draper City
[j] Northern Trust Bank/Lake Forest, N.A.
v. County of Lake
[k] Harvey v. Town of Marion
[l] Perry-Worth Concerned Citizens v. Board
of Commissioners of Boone County
[m] Home Depot U.S.A., Inc. v. City of
Portland
[n] Briarwood, Inc. v. City of Clarksdale
[o] Rossano v. Townsend [5]
Nonconforming Uses
[a] Money v. Zoning Hearing Board of Haverford
Township
[b] Kirkpatrick v. Village Council for
the Village of Pinehurst [6]
Historic Preservation
[a] City of Jacksonville v. Huffman
[b] Handicraft Block Limited Partnership
v. City of Minneapolis
[c] Fabiano v. City of Boston
[d] Galveston Historical Foundation v.
Zoning Board of Adjustment [7]
Accessory Uses
[a] Kam Hampton I Realty Corp. v. Board
of Zoning Appeals
[b] National Cathedral Neighborhood Association
v. District of Columbia Board of Zoning Adjustment
[c] Dupont Circle Citizens Association
v. District of Columbia Board of Zoning Adjustment
[d] State v. Alawy § 1.01
Introduction The past year saw an increase in both
state and federal reported cases with the number rising near 400 in
state cases and over 50 for federal cases.
There were several Supreme Court decisions rendered that will
have a direct or indirect impact on governmental regulation of land
use including Village of
Willowbrook v. Olech. The
federalization of land use control as it affects the telecommunications
industry was made apparent by the many cases arising under the Telecommunications
Act, a trend seen in the past two years. In addition, there appears to be a growing
number of “omnibus” constitutional challenges to zoning decisions based
on regulatory taking, substantive or procedural due process and equal
protection grounds. In most
cases I will report these “omnibus” attacks in the section which appeared
to be the most important to the deciding court.
This article follows the basic outline used in prior years.[1] As in past years I have intentionally omitted
analyzing cases where the main issues are primarily parochial in nature,
although as the author I reserve the right to include cases that may
appear to the reader to be narrow and limited, but due to some quirk
in my personality appeals to my intellectual curiosity. § 1.02 Land Use Controls and the Fourteenth
Amendment [1]
Federal Cases
[a] Village of Willowbrook v. Olech[2]
I have noted an increase in the number
of equal protection claims brought in the land use context in past few
years.[3] The Supreme Court has encouraged this type
of claim in Olech. The Olechs sought to connect their parcel to
the Village’s water supply. The
Village agreed to do so, but only on the condition that they grant the
Village a 33- foot easement. The
Olechs objected because they believed that Village policy was to require
only a 15-foot easement. After
a three month delay, the Village agreed to the connection and only required
a 15-foot easement. The Olechs then sued under § 1983 asserting
that the Village spitefully and intentionally denied them the hook-up
because of prior ill will between Village officials and them. The issue is whether or not an equal protection claim can be asserted
for a “class of one” where no wider class is alleged to have suffered
discrimination. The court looked to the purpose of
the Equal Protection Clause that is “to secure every person within the
State’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its improper
execution through duly constituted agents.”[4] The allegations of the complaint are sufficient
to raise questions of fact as to whether the Village’s demands were
“irrational and wholly arbitrary.”
That is the standard for an equal protection claim and thus the
complaint should not have been dismissed.
The court did not agree with the Seventh Circuit’s opinion that
also found an equal protection cause of action based on the “ill will”
allegations made by the Olechs.[5] Justice Breyer, in offering a short concurring
opinion, tries to deal with the Village concern that § 1983 actions
will be springing forth like dandelions from run-of-the-mill zoning
disputes based on this rather broad reading of the Equal Protection
Clause. Almost by definition, individual zoning decisions
treat one landowner differently than another. If that factual circumstance will allow for
a § 1983 action to be filed almost every permit denial may end up in
federal court. Justice Breyer
would deflect that trip to the federal courthouse by emphasizing Judge
Posner’s view that the critical factor is not a wrong or incompetent
decision, but the existence of an “ill will” or personal animus driving
the decision.[6] Merely alleging that a decision lacks a rational
basis should not be the basis for filing a § 1983 equal protection claim
according to Breyer.[7]
[b] Forseth v. Village of Sussex[8] The owners submitted a preliminary
plat to the Village Plan Commission for approval. The Plan Commission objected to a number of features of the plat,
including its failure to delineate wetlands and the inclusion of several
lots with direct access to an arterial street.
Preliminary plat approval was granted in September 1993. Shortly thereafter a new president of the village
board was elected who had openly opposed the development. The final plat was rejected, due in part to
the president’s insistence on a new wetlands survey that showed substantially
more acreage as wetlands than was shown in the preliminary plat. The owners alleged that the Commission at the
president’s insistence conditioned final plat approval on the sale of
a buffer tract to the president at below market rates. Eventually the final plat was approved and then the owners filed
this omnibus § 1983 action alleging substantive due process, equal protection
and regulatory takings claims. The key issue on the due process claim
is whether the Hamilton Bank ripeness doctrine applies.
If it applies, not only does the agency have to make a final
decision, but the owner must seek state judicial relief before filing
a federal court action. While
there were some earlier decisions that hinted that Hamilton Bank
should not apply to due process claims,[9]
the type of claim involved here requires the owner to seek state judicial
relief. In essence, the owner
is asserting that his property interest is being taken for a private
purpose. Whether couched as a regulatory taking or as
a substantive due process violation the policies underlying Hamilton Bank
are equally applicable.[10] Clearly having not exhausted their available
state remedies, the owners have not complied with the exhaustion component
of Hamilton Bank.
The court observed that “litigants who neglect or disdain their
state remedies are out of court, period.”[11] Thus from both the ripeness doctrine perspective
and the substantive law perspective, the 7th Circuit makes
it difficult to file “garden-variety” land use cases in federal court
under the guise of substantive due process violations. As to the equal protection claim, however,
the court categorized such claims as surrogates for takings claims where
ripeness would be required or as bona fide claims where the ripeness
doctrine is not applicable. Relying
on its own decision in Olech and the clear allegations of malice
and ill will, the court finds that there were sufficient grounds for
the equal protection claim of the owner.
There appeared to the court to be actions bordering on official
oppression and misconduct if the allegations regarding the village board
president were proven.
[c] Woodwind Estates, Ltd. v. Gretkowski[12]
In a case decided a week after Olech,
the Third Circuit reaffirmed its approach to substantive due process
claims and followed the Seventh Circuit’s lead in zeroing in on intentional
governmental official misconduct as actionable under the 14th
Amendment. Plaintiffs were developers who sought approval
to build a subdivision on 75 acres of land. The proposed project involved “low income” housing and the developer
had received substantial tax credits from the state to subsidize the
project. The development plan
was originally submitted in March 1996.
The attorney for the Township planning commission advised the
commission that the plan met all of the subdivision criteria.
Opposing neighbors were also present at the hearing and voice
several objections. They urged
that the project be defined as a planned unit development (PUD) and
not a straight subdivision. After
a six month delay the commission voted to recommend a denial of the
subdivision plan. The Board of Supervisors voted unanimously
to deny approval. No reasons
were originally given until the attorney for the neighbors informed
the Board that they needed to provide reasons for the denial.
That attorney then drafted a denial letter giving several reasons. The letter, in slightly amended form, was then
sent to the developers. Included
in the letter was the conclusion that the proposal was for a PUD and
because the proposal lacked several ordinance requirements for a PUD,
it needed to be resubmitted within a year as a PUD.
The plaintiff then filed this action asserting that the actions
of the Commission, Board and several individual officials violated its
substantive due process rights. As noted by the district court, the
Third Circuit’s definition of what is a protectible property interest
under a substantive due process claim is ill-defined.
The Third Circuit has been more willing than other circuits in
finding a protectible property interest, if the governmental decision
affects the use and enjoyment of property.[13] In this case, the subdivision ordinance is
interpreted to give the Commission and Board no discretion if the objective
standards are met. The facts
undisputably showed that the standards had been complied with. Thus the court finds that the plaintiffs have
a protectible property interest. Once that determination is made the
developer must show that the governmental action was “arbitrary, irrational,
or tainted by improper motive.”[14] Those types of issues are clearly fact issues
to be decided by the trier of fact.
The motives of the township in denying the permits can be reviewed
by a jury to determine whether the permits were denied for an improper
purpose. In this case, the defendants had no legitimate
basis for inquiring about the socioeconomic background and income levels
of the proposed purchasers of the housing. Likewise, the adoption by the Board of a letter proposed by an attorney
representing the opposing neighbors also raises a fact issue that a
jury may look at. The court
also refused to uphold the summary judgment as to the liability of the
individual officials because there was a fact issue as to whether they
were entitled to good faith immunity.
The result in this case clearly aligns it with the Seventh Circuit
in Olech regarding the importance
of motive in making decisions. While
it is often said that courts are not to look at the motive of legislators,
the Third Circuit decision would allow, if not require, the Township
officials to be placed on the stand and be asked questions about why
they voted to deny the subdivision permit.
This approach is obviously a two-edged sword. It may deter bad decisions made by officials for the wrong purpose,
but it also may allow juries to second guess such decisions and open
up legislators to questions that may hinder the legislative process.
[d] Acierno v. New Castle County[15]
The owner filed a development plan
at a time the parcel was zoned for PUD.
The parcel was downzoned to a residential district that did not
allow for the proposed development of 322 apartment units. After a first round of litigation removed the individual defendants,
the parties agreed to a trial on the merits of the substantive due process
claim, after the owner waived any claims for monetary relief. Unlike Gretkowski, which seemingly toughens the
Third Circuit’s view of what is a protectible property interest, this
court goes back to the position that ownership of property vel non is
worthy of substantive due process protection.[16]
Normally one does not have a vested right or a protectible interest
in existing zoning. The downzoning
decision may have been irrational, but certainly under a ‘strict entitlements’
approach it would not be remediable using a substantive due process
theory. Nonetheless the court finds that plaintiff
had a protectible property interest in the existing zoning classification. The second part of the test is whether
the downzoning decision was truly irrational or arbitrary. The owner sought to assert an “improper motive”
test as well, based in part on Gretkowski. But the court distinguished Gretkowski on the basis that it involved
administrative actions taken to enforce existing zoning laws. This case, in part, involves a legislative rezoning decision and
is to be judged solely on whether it was rationally related to a legitimate
government interest. Thus, the
motives of the legislators is irrelevant.[17] The City offered two reasons for the downzoning;
the first would make the parcel more compatible with the surrounding
neighborhood that was largely single family residential and the second
related to traffic congestion in the area. Both of these reasons are legitimate governmental objectives and
the downzoning decision advances those objectives. Therefore, the substantive due process claim fails. But as to the decision of the council to void
the record plan of the owner, the court determined that it was an administrative
decision and thus inquiry into the motive is appropriate. The court did not grant the relief sought but
asked for further briefing on this issue in light of the court’s earlier
finding that the rezoning decision itself was rationally based. As to the owner’s equal protection
claim, the court again noted the limited judicial review afforded such
claims in the absence of a fundamental right or a suspect classification. The showing that the council did not downzone
other land similarly situated does not show irrationality. Because of the traffic and other concerns of
the council, the equal protection claim was likewise barred. A similar finding was made as to the administrative
decision to void the record plan. Plaintiff finally sought relief under
the state law doctrine of equitable estoppel. Under Delaware law the doctrine could be raised as a defense against
the enforcement of a zoning regulation where: “(1) a party, acting in
good faith, (2) on affirmative acts of a municipal corporation, (3)
makes expensive and permanent improvements in reliance thereon, and
(4) the equities strongly favor the party seeking to invoke the doctrine.”[18]
There was no evidence in the record showing that the owner made expensive
or permanent improvements on the land.
The only proven expenditure was $38,500 spent on architectural
and engineering fees. The court
did not allow the owner to show the acquisition cost of the site since
the acquisition was not made in reliance on any affirmative act of the
city.
[e] Herr v. Pequea Township[19]
This is a substantive due process case
arising out of a ten year battle by the developer to build a proposed
industrial park on 45 acres of land.[20] In exploring whether the developer has a protectible
property interest, the court does not merely accept the notion that
ownership vel non is sufficient. Instead,
the court applies a vested rights analysis to see whether the developer
was entitled to a permit at some time during the ten year process.
Under Pennsylvania law,[21]
once a development proposal is submitted, the regulations in place are
not subject to change for a period of five years after the preliminary
plan is approved. Although there
was a dispute as to whether the five year period was tolled, the court
found that the developer has a protectible property interest in having
the now-repealed industrial zoning district applied to the parcel in
question and to a public sewer hook-up.
In applying the second part of the
substantive due process test, the court had no difficulty showing that
the rezoning decision was not arbitrary or irrational. The township had a strong interest in preserving agricultural land
that was served by the rezoning. Then
the court went on to discuss the improper motive aspect of this test,
using such language as “tainted by improper motive,”, “motivated by
bias, bad faith or improper motive,” or for “reasons unrelated to the
merits.”[22] Normally this issue must be decided by the
trier of fact and is not subject to summary judgment motions. But in this case the court found no evidence
of bias, improper motive or bad faith.
The fact that several township officials expressed strong opposition
to the development does not make a prima facie case of improper motive. In fact, the court found that the township
acted out of a strong desire to restrain development. That is not an improper motive and it is not up to a court to second-guess
the elected officials on public policy issues. There was no evidence of injustice or unfairness
at a level sufficient to trigger substantive due process concerns. Therefore, the court granted the township’s
motion for summary judgment.
[f] McDonald’s Corp. v. City of Norton Shores[23] Plaintiff leased a pad in a K-Mart
shopping center located in a general retail zoning district. The ordinance allowed for the operation of
a fast food restaurant. The
ordinance also required site plan approval for such facilities. Plaintiff submitted a site plan showing a drive-through window.
Plaintiff had submitted expert testimony and reports showing
only a minimum amount of traffic flows during peak meal hours.
Plaintiff also showed that in 5 years the city had only rejected
3 site plans. The city eventually rejected a revised site
plan because of vehicle and pedestrian traffic concerns. Plaintiff then filed this omnibus constitutional
attack on the city’s decision claiming a regulatory taking, violations
of substantive due process and equal protection rights and pendent state
claims. The court easily dismissed the regulatory
taking claim because it is unripe under Hamilton Bank. Michigan clearly
recognized an inverse condemnation cause of action at the time the federal
suit was filed so plaintiff should have filed this claim in state court.
As to the substantive due process claim, the court applied the
deferential review first stated in Pearson v.
City of Grand Blanc.[24] While plaintiff’s evidence disputed the reasons
given by the city for rejecting the site plan, the court found the decision
rationally related to the legitimate governmental interest of dealing
with vehicular and pedestrian traffic concerns. On the equal protection claim, the
court initially noted that in zoning cases substantive due process and
equal protection arguments tend to merge together.
Plaintiff tried to rely on Olech and its class of one claim to attack
the city’s decision. Again,
the court fell back on its very deferential rational basis review, even
after Olech.
Plaintiff must prove that the city treated it differently than others
similarly situated and that there was no rational basis for that difference
in treatment. Even though McDonald’s
provided evidence of disparate treatment by the approval of site plans
for other fast food restaurants with drive-through windows and other
restaurants in the same area, the court found that those cases were
not similarly situated. None
of the drive-through restaurants abutted the street that the proposed
McDonald’s was to be located on and the nearby restaurants that did
abut that street did not have drive-through operations.
Thus the court granted the city’s motion for summary judgment
and refused to exercise jurisdiction over the state law claims.
[g] Vigilante v. Village of Wilmette[25] In March 1999, plaintiff purchased
two parcels of land and demolished the single family home that had been
built on both parcels. She then
sought permission to allow separation of ownership of the two parcels,
in order to construct two new homes.
The Village denied the permit and plaintiff filed this omnibus
takings, due process and equal protection claim.
The court followed Hamilton
Bank and Forseth by applying the ripeness doctrine
to both the takings and substantive due process claims. Available state remedies must be used however
the plaintiff characterizes her causes of action. Since Illinois allows for an inverse condemnation
remedy for regulatory takings and substantive due process violations,
plaintiff must first file her claim in state court. The equal protection claim was not treated
the same as the takings and due process claims. If the equal protection claim was not a subterfuge for a takings
claim then Hamilton
Bank would not apply. While
the plaintiff asserted that she was being treated differently from others
that were similarly situated, the court applied the traditional rational
basis test since no fundamental rights or suspect classifications were
involved. Merely asserting differential treatment and
that plaintiff’s proposed development would not cause any harm do not
make a prima facie equal protection case.
The court concluded: Perhaps
the Village is concerned about the character of the neighborhood, something
it does not think was affected by the previous variances, but would
be affected by granting hers. The
cumulative effect of small changes, each of which by itself is insignificant,
may make a difference here.[26]
A more deferential scope
of judicial review is hard to find.
The court clearly is discouraging future claimants from making
equal protection claims in the absence of some type of smoking gun,
raising the Olech
issue of whether motive is required to show equal protection violations
in the typical land use scenario.
[h] Tandy Corp. v. City of Livonia[27] Plaintiff executed an option contract
to purchase a tract of land if the city rezoned the tract from professional
office to general commercial use. The
land was rezoned in 1995 and the plaintiff purchased the tract. In 1997, the city voted to rezone the property
back to the professional office district. At that time Tandy was in active negotiations to sell the tract,
but those fell through when the city rezoned the tract. Plaintiff then
filed this omnibus constitutional suit alleging a regulatory taking
and violation of its substantive due process and equal protection rights. Prior to the onset of the litigation, the tract of land was sold
for an amount that exceeded Tandy’s purchase price by some $ 300,000.
The city argued that Tandy did not
have a protectible property interest under the due process clause. In the Sixth Circuit, the owner must show either
a “legitimate claim of entitlement” or a “justifiable expectation” regarding
the commercial zoning of the property. The city strenuously argued that no party has a property interest
in an existing zoning classification even where they engage in acts
relying on that classification. But
the court found that the actions taken by the plaintiffs, including
the expenditure of substantial funds in reliance on the existing zoning,
were sufficient under Michigan law to create a protectible property
interest.[28] The court’s view of what constitutes a protectible
property interest is in line with the Third Circuit’s view, but clearly
contrary to the view taken in the First, Second, Seventh and Ninth Circuits.
The court found that the Lucas
regulatory takings claim could not be sustained where the parcel was
sold during the pre-trial period for over $ 6,000,000. The fact that Tandy expected to make a profit on the sale does not
trigger a Lucas taking. The second
part of the regulatory takings test is similar to the substantive due
process test, namely whether there the rezoning substantially advances
a legitimate state interest. The
city proffered several reasons for the rezoning including uniformity
of zoning for the subject property, compatibility with the surrounding
uses and the development of the area as a corporate park.
After a hard look at the reasons and the alleged nexus between
the rezoning and those interests, the court determined that factual
issues remained that could not be resolved on the city’s motion for
summary judgment. The court was clearly influenced by the quick
change of heart by the city and wanted to have a factual record to understand
why the land was rezoned twice in a two year period.
[i] Scott v. City of Seattle[29] Plaintiffs are the owners of several floating structures that were
moored at a recreational marina. The owner of the marina received a
notice of violation (NOV) from the city that the structures violated
various provisions of the city’s land use ordinances.
Later a final Land Use Order was sent to both the marina owner
and the plaintiffs. As a result of the city’s actions the marina owner
terminated the leases with the plaintiffs, requiring them to move their
structures. Plaintiffs then sued the city alleging that
the city’s actions violated their due process and equal protection rights. The court found that the plaintiffs
did not have a protectible property interest because the NOV and
the order did not encumber their property interest in the structures. There can be no deprivation of a property interest
until such time as a court hears the case and determines that a violation
of the ordinance occurred. The
order did not effect the contractual rights or legitimate business expectations
of the plaintiffs. It was the
marina owner, not the city, that terminated the leasehold relationship.
The marina owner could have reacted to the NOV and order in any
number of ways. The fact that the owner decided to eliminate
the problem by terminating the lease did not mean that the city’s actions
caused the plaintiffs to be deprived of their property interests. Plaintiffs made a second substantive
due process claim by contending that the City imposed requirements on
them and the marina owner that were not contained within the land use
ordinances. Only where actions of the city would shock
the conscience of the court can a party assert a substantive due process
claim. Here the issue was whether
the structures were vessels and thereby exempt from city regulation. The city’s interpretation, according to the
court, was reasoned and reasonable in light of the purposes of the shoreland
management statutes. Thus, this
claim must also be dismissed. Plaintiffs also asserted a procedural
due process claim since they did not receive notice of the NOV and did
not participate in the informal hearings that resulted from the marina
owner’s discussion of the NOV with city officials. The informal review process triggered by the NOV did not lead to
the final order. The plaintiffs
were given notice of the order and an opportunity to participate prior
to its issuance. The court
also dismissed the equal protection claim under the rational basis test. Plaintiffs had urged that they were discriminated against because
they owned square-hulled structures that were treated differently than
other seaborne structures. The
court found a rational basis for the disparate treatment.
Finally, the court dismissed the pendent state claims since no
federal claims survived the city’s motion for summary judgment.
[j] Burnham v. City of Salem[30] Plaintiff asserted that the city, through
a series of actions taken over a 4 year period, violated the due process
and takings clauses. Some of
the alleged actions include wrongfully removing mooring and tackle from
a river, wrongfully denying various licenses and permits, filing frivolous
lawsuits against the plaintiffs and refusing plaintiff the right to
repair a broken water main in front of their business.
The court found that for plaintiffs
to show a violation of their procedural due process rights, they must
prove that they had a protectible property interest that the city interfered
with without adequate process. Since
almost all of the permits and licenses that plaintiffs sought and the
city denied were discretionary permits, the court concluded that it
was dubious whether they had a property interest in the issuance of
those permits. If plaintiffs were asserting that the defendants illegally departed
from state or locally mandated procedures in making the permit decisions,
there is no due process violation, so long as there were adequate post-deprivation
processes available.[31] The evidence showed that the plaintiffs were
able to bring appropriate state court action to remedy the apparent
attempt by the city to remove or eliminate the plaintiff’s business
from the city. Thus the adequacy of post-deprivation remedies
was clearly evident so that no procedural due process violation could
be proven. The court refused
to allow a procedural due process claim based on “motive or intent”
to go to the jury. A bad faith refusal to follow state law in
local administrative proceedings does not constitute a violation of
the due process clause so long as there are adequate post-deprivation
remedies available. Many of the same factual predicates
asserted in the procedural due process claim were repeated in the substantive
due process claim, although the plaintiffs added the lodging of numerous
frivolous criminal complaints against them to this claim. Unlike the procedural due process claim where
motive or intent is basically irrelevant, it became the central issue
in the substantive due process claim.
The court looked at what was done, rather than how or when it
was done. The court applied the traditional “shock the
conscience” approach to substantive due process and found that even
if the plaintiff’s alleged facts were shown to be true and that there
was a city attempt or crusade to chase the plaintiffs from the city,
that would not constitute a substantive due process violation. The clear hostility between the city and the plaintiff was evident,
but not sufficient to rise to a constitutional violation. The First Circuit’s view of substantive due
process traditionally has limited the cause of action to cases dealing
with invasions of personal security or privacy and not business relationships. Finally, the plaintiff alleged that
several actions of the city constituted a taking of property without
just compensation. The basis
for their claim was that the city’s actions did not substantially advance
a legitimate state interest. It
was clear that no Lucas
taking was alleged since the business was still in operation. The physical confiscation of a mooring was
done consistent with the city’s interest in protecting navigation. There was no showing that the plaintiffs had
a property interest in keeping the mooring where it was located. Finally the court found that the placement
of some barriers on the plaintiffs land were not a taking under Loretto
even though they involved a physical invasion of plaintiff’s land. The physical occupation was temporary and plaintiff
could show no injury. That reading
of Loretto
and First
English was arguably wrong in that a temporary taking could
have occurred, although the issue of damages would have been problematic.
[k] Odlan Holdings, LLC v. City of New Orleans[32] Plaintiff’s petition to have a zoning
map change from multi-family residential to some type of commercial
district was rejected. Plaintiff
filed this omnibus due process and equal protection challenge. The court summarily dismissed the equal protection
claim because the complaint only included conclusory allegations that
are not sufficient as a matter of law.
As to the substantive due process claim, the court also dismissed
the complaint, emphasizing that typical zoning disputes represent “infertile
grounds” for due process claims. The
court noted that it would be rare for a party seeking a discretionary
permit or decision to be able to assert a protected property or liberty
interest. Requests for zoning map changes clearly involved the discretionary
authority of the city planning commission thus negating any substantive
due process claim. The court, however, kept alive the lawsuit for further
factual development of the alleged procedural due process claim based
on the failure of the commission to hold a hearing on plaintiff’s request.
[l] Katz v. Stannard Beach Association[33] Notwithstanding the Olech
admonition that it was not deciding whether intent was an element of
the equal protection claim, courts have seemingly adopted the Posner
view that it is an indispensable part of the cause of action.
In this case, plaintiff owns a home within a locality created
by special state legislation and governed by the defendant that is composed
of all record owners of property within the locality.
The Association is empowered to enact by-laws and provide for
governance by a board of directors.
One of the plaintiffs replaced a cement walkway and placed a
hedge over a right of way that had apparently been used by other residents
to access the beach. The Association votes to initiate litigation
against the plaintiff to remove the obstruction and have an easement
declared giving residents beach access.
The Association was dismissed from the first suit and re-filed
a second suit. Plaintiffs allege that the state court litigation
brought by the Association violates their due process and equal protection
rights and constitutes a taking of property without just compensation. The court refuses to abstain from hearing
this case under the Pullman doctrine since the plaintiffs’ claims
will not depend on the outcome of the state court litigation. On the equal protection claim, plaintiffs rely
on Olech.
The court agrees that plaintiff can constitute a class of one. The court, however, then relies on pre-Olech
cases that require the plaintiff to allege that when compared with others
similarly situated the plaintiff was selectively treated and that selective
treatment was based on impermissible considerations including malicious
or bad faith intent to injure a person.
The court relies on the Breyer concurring opinion that adopts
the Posner view that animus, ill will or vindictiveness is required
and not pled in this case. On the due process claims, the court
finds that plaintiff does not show a protectible liberty interest in
her good name and reputation. It
is not merely the loss of reputation that triggers a loss of a liberty
interest, but it requires something else, such as an effect on a vested
property interest. Since no further injury was alleged there was no
cognizable liberty interest. Likewise the court finds no invasion of a
protectible property interest through the act of soliciting and filing
the litigation seeking to establish an easement.
While there may have been some misconduct in the Association
elections authorizing the litigation, there was no direct impact on
her property interest. The
court further finds that the regulatory takings claim is not ripe for
review under Hamilton Bank
since there has been no final resolution of the state court action.
Only if the Association is successful in claiming an easement
will a takings claim arise. [2]
State Cases
[a] FM Properties Operating Co. v. City of Austin[34] While not involving either the Due
Process or Equal Protection Clause, this case involves the difficult
constitutional problem of unlawful delegations of legislative authority. In response to Austin’s aggressive regulation
of land use and water quality in their extra-territorial jurisdiction
(ETJ), the state enacted a statute that allowed certain landowners to
opt out of local regulation upon meeting one of two required options.[35] The first method was for the landowner to maintain
background levels of water quality in the waterways. Monitoring sites had to be set up to collect
water quality data. The second
method was to capture and retain the first 1.5 inches of rainfall from
developed areas. No monitoring
was required for the second method.
In both cases the plans had to be developed by a registered professional
engineer. Review by the Texas Natural Resources Conservation
Commission (TNRCC) differed depending on the size of the acreage.
For parcels between 500-1000 acres, the owners had to submit
their water quality plans to TNRCC for approval. For parcels over 1000 acres, the plans were
effective immediately upon recordation, although TNRCC had an opportunity
to review those plans. TNRCC review is limited to seeing if the plans
will meet one of the two options. Landowners
may amend their plans from time to time.
TNRCC may deny approval of these amendments only if it finds
that the amended plan will impair the achievement of the plan’s objectives. A landowner may appeal a TNRCC denial and the
burden of proof is on TNRCC. The
plans and review by TNRCC are not subject to public hearings. Once a water quality zone is designated all
municipal land use, water quality or environmental control ordinances
that are inconsistent with the zone and its plan are not enforceable. Further restrictions on municipal action include
that the city may not collect fees or assessments or exercise the power
of eminent domain within a zone until it annexes the zone. But a city may not annex an area covered by
a plan until 90% of the plan’s facilities have been completed or 20
years have passed since the zone was designated.
The city sued several landowners in its ETJ who sought plan designations
under the statute. The city’s
claim was based on several theories including the unconstitutional delegation
of legislative power to private owners, the violation of municipal home
rule provisions in the Texas Constitution and that the statute was an
impermissible special or local law.
The majority opinion only dealt with the facial non-delegation
challenge.[36] After noting, and then ignoring, the
presumption of constitutionality in facial challenges, the majority
made the necessary finding that the Legislature had in fact delegated
its plenary legislative authority to private landowners.
Legislative authority involves the making of laws of private
conduct and setting public policy.
The Legislature may delegate that power to coordinate branches
of government or even to private individuals or institutions without
violating the constitution’s reservation of that power to the Legislature.[37] The majority found that the power to exempt
themselves from otherwise applicable police power regulation constituted
a delegation of legislative power to the private landowners.[38] Clearly the state, in other circumstances,
has reserved to itself the power to regulate water quality issues. Giving the landowners the power to make those
decisions relating to matters of public interest must constitute a delegation
of legislative power. Once a delegation is found, the court
applied the 8 factor Boll Weevil analysis to determine if the
delegation was valid. These
8 factors are:
Any time a court develops
a multi-factor analysis one must ask whether the court is engaging in
a judicial or legislative function.
The court noted that there is not a hierarchy within the 8 factors,
although the court did suggest that several factors should be weighed
more heavily than others. The
court found that the first and fourth factors are particularly important
in private delegation cases because of the potential impact on the public
interest. Not surprisingly, the majority found that both
of those factors weigh against the statute’s constitutionality. Delegations of power to private bodies, such
as accreditation agencies, national standard setting commissions and
ADR organizations are widespread. Applying
an 8 factor test to each of these types of delegations may require the
court to take an intrusive role in making what are essentially policy
decisions regarding the size and powers of governments.
In Texas, which lacks a history of strong governmental regulatory
bodies, delegations to private entities has been a way to avoid empowering
governmental entities. This
decision, as well as the Boll Weevil decision will make it hard for the state government
to use surrogate private parties to achieve desired goals. In this case the court could have attempted
to affirmatively limit the powers of home rule cities in their ETJs. Instead, they chose to empower private parties
to exempt themselves from those powers. That option appears to be foreclosed to the legislature in the future.
[b] Turbat Creek Preservation, LLC v. Town of Kennebunkport[40] A developer purchased a parcel containing
4 cottages and a boathouse. It
obtained a permit to renovate the 4 cottages and sell them as separate
condominium units. The application
did not separately identify the boathouse as a separate residential
unit. Evidence showed that the
boathouse had been occasionally used for overnight stays and a gathering
place for residents and guests in the cottages.
The developer obtained a permit to modernize the boathouse. The submitted plans did not show an intent
to change its use to a residential unit.
Nonetheless, the developer made extensive renovations making
the boathouse usable for seasonal residential use.
Several years later the plaintiff was served with a notice of
violation of the town’s zoning ordinance.
The developer asserted two due process
violations. The first was that
the town attorney appeared at the zoning board of appeals hearing stating
that he was representing the enforcement official and not the ZBA. The second was that the chair of the ZBA had
prejudged the case by preparing in advance an outline of issues and
potential findings based on extra-record evidence.
The court found that neither allegation was sufficient to violate
the procedural due process rights of the developer. The attorney’s role in the proceeding was appropriate and the pre-hearing
review of materials was not prejudicial to the developer’s rights. Under the town’s zoning ordinance the
boathouse was located in a resource protection zone where no residential
uses are allowed. Only if the
boathouse was a NCU could it continue to be used or rebuilt. In reviewing the ZBA’s decision not to treat the boathouse as a
NCU, the court applied the substantial evidence test. Only if the proposed use as a guesthouse was the use that existed
prior to the enactment of the zoning ordinance will it qualify as a
NCU. The developer argued that the only change was
a change in the intensity of the use not the type of use. The court found, however, substantial evidence
in the record to support the ZBA’s finding that the present use was
far in excess of the occasional overnight use that had occurred in the
distant past. Even if the use
was of the same kind, the evidence also showed that there had been a
non-use of the boathouse for any purposes for a period in excess of
12 months. Under the zoning ordinance such a period of disuse constituted an
abandonment of the NCU. Finally,
the court rejected the developer’s equitable estoppel claim based on
the issuance of the renovation permit because the developer affirmatively
misled the town official regarding the scope of the planned renovations.
[c] Masi Management, Inc. v. Town of Ogden[41] Last year I analyzed the lower court
opinion in this case that challenged on due process and equal protection
grounds various decisions of the town that were allegedly taken to delay
action on the plaintiff’s development proposal in order to favor a competing
developer’s proposal.[42] The court agreed with the lower court opinion
that no substantive due process claim was asserted since plaintiff did
not have a legitimate claim of entitlement to the continuation of the
multi-family zoning classification that had attached to the land he
was seeking to develop. It was
entirely within the discretion of the town to determine how to provide
housing units for senior citizens.
The court refused to expand the substantive due process cause
of action to include decisions motivated by ill will or bad faith since
that would federalize all local land use decisions where an allegation
was made that a decision was made under questionable or unfair circumstances.
Ill will or improper motive are relevant considerations under
the plaintiff’s equal protection claim, but the court found that the
plaintiff failed to show that the town acted “with an evil eye and an
unequal hand, so as practically to make unjust and illegal discrimination
between persons in similar circumstances.”[43] Without citing either the Supreme Court or
7th Circuit decision in Olech the court seemed to embrace the 7th
Circuit standard that emphasized motive as the gravamen for an equal
protection claim in the land use context.
[d] Hanlon v. Town of Milton[44] In 1990, Hanlon sought a CUP from the
town to operate a gravel quarry on his agricultural property. The CUP was denied, although at the same meeting,
two other CUP applications were approved, both being sought by members
of the Planning and Zoning Committee.
State court review reversed the town’s decision and led to a
second decision in 1994 that again denied the CUP.
A second round of state judicial review led to an eventual affirmance
of the decision. In 1997, Hanlon
then filed this action in federal court under § 1983 alleging that the
town deprived him of his due process and equal protection rights by
its failure to approve the CUP. The
district court granted the town’s motion for summary judgment.
The Seventh Circuit then sought an answer to the following certified
question: “when a municipal administrative determination gives rise
to an equal protection claim for money damages actionable under § 1983,
must this equal protection claim be brought and heard in a Wis. Stat.
§ 68.13 certiorari proceeding brought by the litigant?”[45] The Town argued that failing to bring
the equal protection claim in the state court action required the federal
court to dismiss the action based on the claim preclusion doctrine. The court found that while a certiorari proceeding
to review a local zoning decision may raise constitutional claims to
prove that the decision was unreasonable, arbitrary or oppressive, that
is not the same as bringing a § 1983 equal protection action seeking
monetary damages. Remedies under
the state procedure only affect the local decision.
They do not include any possibility of receiving money damages. Since the issue of monetary damages could not
have been raised in the state court action, the § 1983 claim could not
have been as part of that proceeding.
In addition, the failure of the plaintiff to voluntarily join
the separate § 1983 claim with the state court review action does not
preclude him from bringing a later federal action.
Certiorari review is limited and cannot be expanded to include
the type of damages sought under § 1983.
While joinder was possible, failure to join will not preclude
the plaintiff from filing separate state and federal actions.
[e] Thorp v. Town of Lebanon[46] The Thorps own a 255-acre tract of
land that prior to 1994 was zoned for rural development. At that time the town engaged in a comprehensive
revision to its zoning ordinance. The town requested that the county amend its official zoning map
to incorporate the town’s changes.
The Thorp tract was reclassified to general agricultural uses. The Thorps challenged the rezoning and simultaneously
filed a request to rezone the non-wetlands and flood plain areas.
The town voted to rezone approximately 165 acres back to rural
development. The county, however, refused to go along with the town’s rezoning
decision and voted to maintain the general agricultural classification. Plaintiffs then filed an omnibus § 1983 action
in state court alleging a regulatory taking and substantive due process
and equal protection violations. The court initially had to deal with
the town’s assertion that by failing to comply with Wisconsin’s notice
of claim statute relating to litigation against local governments, the
trial court lacked jurisdiction. When
a party brings a § 1983 action claiming a violation of constitutional
or statutory rights under color of state law, the party need not exhaust
its state remedies and need not comply with whatever state procedural
hurdles normally attach to suing a local governmental entity.[47] In addition, the court found that the plaintiffs
had complied with the notice of claim provision through their various
actions prior to filing this lawsuit.
The court noted the traditional two
tests for showing equal protection violations, namely the compelling
state interest test for suspect classifications and fundamental rights
and the rational relationship test for everything else. The court found that the complaint’s allegations regarding the bias of at least one member of the county
board was sufficient to withstand the county’s motion for summary judgment.
In addition, the plaintiffs asserted that the topography of their
tract was ill-suited for agricultural uses, evidence of a lack of a
rational relationship between the classification and the governmental
objective. A plaintiff in an
equal protection case does not have to exhaust state judicial or administrative
remedies. The court noted that
at trial the burden on the plaintiff to prove the lack of a rational
relationship will be difficult to meet.
The plaintiff must show that the ordinance is unconstitutional
beyond a reasonable doubt. The court held that plaintiffs had
not stated a claim for a substantive due process violation. The plaintiff must prove that there has been
a deprivation of a liberty or property interest that is constitutionally
protected. Plaintiff asserted
that the town’s rezoning efforts had not complied with state law. The plaintiff in this case had no property
interest involving the statutory procedures required to be met before
a zoning ordinance could be amended.
The gist of the substantive due process claims were the same
as the equal protection claims. Where
a specific constitutional provision can be relied on, rather than the
general provision relating to due process, the specific claim will essentially
subsume the general claim. Finally, the court found that there was no
procedural due process claim because the state provided an adequate
post-deprivation remedy of judicial review of improper zoning decisions
through the certiorari process.
[f] St. Raymond v. City of New Orleans[48] Plaintiff owned a lot located in a
duplex residential zone. Over
a negative recommendation by the City Planning Commission, the city
council enacted an ordinance issuing to the plaintiff a CUP to construct
three townhouses on the lot. The
ordinance contained several conditions or provisos and waived several
setback requirements. The ordinance was to have “legal force and
effect” only when the provisos were fully complied with. Two amendments to the ordinance extended the
period of time when construction had to begin. Several years after the last deadline had passed, plaintiff sought
a ruling that the ordinance was still valid even though the townhomes
had never been built. The plaintiff
listed several activities he asserted met the ordinance requirements
for development. The city notified
the plaintiff that his CUP had not expired and then issued him a building
permit. The plaintiff began
construction and apparently did substantial work leading to the pouring
of the foundation when the city issued a stop work order. Notwithstanding other stop work orders the plaintiff continued to
build and got a restraining order against the city from the trial court
to prevent them from interfering with his development. The trial court, however, refused to grant plaintiff a preliminary
injunction against the city. The basis for the plaintiff’s claim
for an injunction was that he had a vested property right in the building
permit. But Louisiana law,
like most states, does not treat the issuance of a building permit as
conferring a constitutionally-protected property right.[49] If a building permit was issued in error, the
permit owner does not have a right to prevent the city from revoking
or rescinding the permit. The
permit was issued in error because the city attorney who wrote the memorandum
finding that the CUP had not expired was wrong.
There had not been sufficient development work done within the
period of time set by the earlier ordinances.
The only work accomplished within the time frame was the pouring
of the sidewalk. That was insufficient
to keep the CUP alive. The completion
of work after the stop work orders were issued was not sufficient to
show irreparable injury. Even
if the plaintiff was misled by the city’s action, a preliminary injunction
should not issue since monetary damages can fully compensate the plaintiff
for his injuries.
[g] East Lampeter Township v. County of Lancaster[50] In 1986, Mr. Hondares, an African-American,
purchased two contiguous tracts of land. At the time of the purchase both tracts were
zoned for commercial use. The
front tract was used to operate a retail store.
In 1990, the township engaged in a comprehensive rezoning that
reclassified the rear tract to rural while maintaining a commercial
classification for the front tract.
Hondares petitioned the township board of supervisors to rezone
the rear tract back to commercial but they refused.
No further appeal was taken.
Mr. Hondares was using the rear tract as a residence in apparent
violation of the ordinance, but the township had never sought to enforce
its ordinance. In 1993, he filed a complaint with the County
Human Rights Commission asserting that the township had discriminated
against him because he was black.
Before the commission could hold any hearings, the township sought
a declaratory judgment that the commission did not have jurisdiction
over the Hondares claim. When the township refused to rezone the rear
tract it acted in a legislative capacity.
Courts and administrative agencies exercising adjudicatory powers
do not have any power to interfere with the legislative process. Under the state zoning law, decisions to rezone
are entrusted to the board of supervisors with appropriate resort to
the courts provided for. This
type of attempted collateral attack was not authorized by statute. The commission would have no power to remedy
the alleged discriminatory treatment since it could not rezone the tract. The commission lacked the power to review the
legislative decision of the township. § 1.03 Land
Use Controls and the Fifth Amendment [1]
Regulatory Takings
[a] Agripost, Inc. v. Miami-Dade County[51] Plaintiff was issued a permit from the county board of commissioners
in 1987 to operate a waste disposal facility. Plaintiff had been a successful bidder to construct
a facility that would create an environmentally safe end product from
the solid waste. Plaintiff also
received a variance containing several conditions since the facility
was located in an agricultural zone. Four years later, however, the
county zoning appeals board revoked the permit, after receiving complaints
upon the operation. The board determined that the plaintiff had
failed to comply with several of the conditions. Upon direct state judicial
review, the revocation decision was upheld.
Plaintiff then filed this action asserting a regulatory takings
claim against the county. The
trial court dismissed the action as unripe under Hamilton Bank since plaintiff had not pursued
a state inverse condemnation claim.
The county had argued that under the Rooker-Feldman doctrine only the Supreme
Court of the United States has jurisdiction to review final decisions
from a state’s highest court. It
also argued that under either the issue or claim preclusion doctrines
the case should be dismissed on the merits.
The county sought to avoid the plaintiff’s filing of a state
court inverse condemnation claim, something the plaintiff did shortly
after the district court’s opinion. While normally the prevailing party
does not have standing to attack a judgment or order, in this case the
county was injured by the district court’s handling of its issue or
claim preclusion claims. The
court agreed with the district court that the earlier state court litigation
did not act to prevent the plaintiff from filing a state inverse condemnation
claim. The court found that the earlier state court
proceeding did not deal with the regulatory takings claim and that it
lacked authority to hear it since it was the permit revocation decision
that allegedly constituted a regulatory taking.
Since the legitimacy of that revocation decision was not finally
determined under after the state court proceeding was final, plaintiff
would not be precluded from filing a new regulatory takings claim in
state court. Obviously, Hamilton Bank precluded plaintiff
from bringing a federal takings claim, since Florida provides for an
inverse condemnation remedy. In
addition, since the earlier state court proceeding did not deal with
the takings issue, the district court had subject matter jurisdiction
to determine that the issue was not ripe for review under the Rooker-Feldman
doctrine.
[b] SGB Financial Services, Inc. v. Consolidated City of
Indianapolis-Marion County[52] Plaintiff is the owner of a 286-unit
apartment complex. Starting
in 1996, it sought to sell or re-finance and renovate the complex. No proposals or bids were received when in
April 1997, the parcel was placed on the city’s “acquisition list” under
the state’s urban redevelopment law.
Under the law, the city was could either negotiate a purchase
of the parcel, condemn it through an eminent domain proceeding or do
nothing. Two city appraisals listed the value of the
parcel at around $ 900,000. The
plaintiff’s appraisal came in at $ 3.2 million. The city also provided information to several prospective purchasers
or re-developers of the complex regarding the high crime rate and what
the city had appraised the parcel for.
While the city disclosed its appraisals to third parties, it
refused to disclose its appraisals to the plaintiff.
Plaintiff the filed this claim asserting that the city’s actions
have constituted a regulatory taking and have impeded its ability to
sell the parcel for its listed purchase price of $ 2.6 million. The plaintiff tried to avoid the Hamilton Bank
ripeness doctrine by asserting the futility exception. An Indiana state court decision had found that
a city’s actions in declaring an area “blighted” and placing the parcel
on the acquisitions list does not constitute a regulatory taking.[53] The fact that a single decision by an intermediate
appellate court appears to be contrary to the position of the plaintiff
does not make the state inverse condemnation futile, unavailable or
inadequate. Hostility of the
state court system to the type of regulatory taking claim asserted by
the plaintiff is not sufficient to avoid Hamilton Bank’s requirement of seeking state
court relief prior to the filing of the case in federal court. Where the state procedure exists, the property
owner must avail itself of the procedure and be denied an inverse condemnation
award the case will be ripe for federal court review.[54]
[c] John Corp. v. City of Houston[55] In 1991, the city had issued demolition
orders covering an apartment complex. In 1995, John Corp. agreed to purchase the complex from the owner
for $ 1,900,000. Plaintiff entered
into discussions with the City regarding its rehabilitation plans for
the complex. During this time
period there was a fire on the premises and eventually the city demolished
about two-thirds of the buildings within the complex.
Plaintiff then sued the City for violating various of its constitutional
rights as well as the sellers. The
district court dismissed all of the plaintiff’s constitutional claims. The court treated many of the plaintiff’s
claims as essentially regulatory takings. The alleged activities of the city in dealing with the plaintiff
and then demolishing the buildings, involved a claim that the regulation
went too far. Once classified
as regulatory takings, the claims have to fail under the Hamilton Bank ripeness doctrine. Only if the demolition was accomplished for
a private purpose might the federal courts hear the case prior to a
state court. Thus, the district
court was correct in dismissing the bulk of the plaintiff’s claims. The court then found that the substantive
due process claims raised by the plaintiff should not have been dismissed
because they were different from the regulatory takings claims. Rather than subsuming the due process claims
into takings claims, the court treated them separately.[56] The allegations in the complaint that the ordinance
authorizing the demolition of the building were sufficient to state
a cause of action under the due process clause.
Those claims are different than the regulatory takings claims
and are ripe for review without the need for filing a claim in state
court.
[d] Jim Sowell Construction Co., Inc. v. City of Coppell[57] Plaintiff brought a regulatory takings
claim against the City after the City downzoned land where the plaintiff
had planned to construct an apartment complex. Earlier orders had dismissed the takings claims
finding that the regulation substantially advanced a legitimate state
interest and did not deny an owner economically viable use of the land. Plaintiff urged that Del Monte Dunes required the
court to take a hard look at the city’s downzoning decision to see if
it substantially advanced a legitimate state interest. The court found that Del Monte Dunes did not reverse the traditional
presumption of validity and the placement of the burden of proof on
the party challenging the ordinance.
The more rigorous scope of judicial review applicable to exactions
does not apply to normal land use regulations, including downzoning
amendments. In addition, heightened scrutiny does not apply
to legislative decisions, while it may, under certain circumstances,
apply to adjudicatory decisions. Plaintiff
alleged that the downzoning was racially motivated because the proposed
multi-family development was going to contain some low- and moderate-income
units. The city responded with
reasons for the downzoning that were unrelated to the potential racial
make-up of the apartment complex. Under
the soft glance approach taken to these type of cases, the court found
that the city’s decision substantially advanced a legitimate state interest.
Plaintiff also made a claim that the
city’s decisions violated its vested right to develop that was created
by Texas statues.[58] The city admitted that the vested rights statute
required the city to apply the ordinance in existence when the permit
request was originally filed. But
the court found that the statute did not create a cause of action for
money damages. Instead the remedies
are limited to declaratory, mandamus or injunctive relief. The court then dismissed this state law claim
as well.
[e] Rau v. City of Garden Plain[59] The city downzoned plaintiff’s parcel
from light commercial to residential.
Plaintiff then filed a state lawsuit making a § 1983 claim that
the city had violated her due process, equal protection and regulatory
takings rights. The city filed
a motion to remove the case to federal court based on federal question
jurisdiction and then moved for summary judgment on all of plaintiff’s
§ 1983 claims. The underlying basis for the motion
for summary judgment was that the claims were not ripe for review. Kansas law provided two means of attacking
the judgment in state court. The
first was a statutory review procedure to determine the reasonableness
of the zoning order or determination.
The second was a claim for inverse condemnation. It
was unclear under Kansas law whether such a claim can be made for a
zoning ordinance that went too far.
Nonetheless, Kansas does recognize the inverse condemnation cause
of action. The plaintiff did include in the state complaint a claim
that the ordinance was unreasonable.
But the plaintiff also included the regulatory takings claim
that was both unripe under Hamilton Bank
and was the grounds for removing the case. Plaintiff needed to have filed in state court
either or both of the statutory review or inverse condemnation cases
without alleging a § 1983 cause of action. The court also dismissed the substantive
due process and equal protection claims as unripe. Where these claims are really offshoots of
the regulatory takings claim, the more particularized protection of
the Takings Clause applies as does the Hamilton Bank ripeness doctrine.[60] As to the procedural due process claim, the
Hamilton
Bank ripeness doctrine normally does not apply. But as asserted by the plaintiff in this case,
the procedural due process claim was directly related to and thus coextensive
with the regulatory takings claim.
Thus, the procedural due process claim was also dismissed as
unripe. Because all of the federal
claims were dismissed, the court remanded the state claim under Kansas’
statutory review to the state court for their determination. Only rarely should a federal court review local
zoning decisions where a state court can otherwise exercise jurisdiction.[61]
[f] Town Council of New Harmony v. Parker[62] Two separate tracts of land were subdivided
and platted in 1871 and 1874. About
100 years later, Parker purchased several of those lots. Some ten years later, Parker asked the town
to extend various utilities to the lots.
The town agreed to do so if Parker would pay the pro rata share
of the costs of extending those utilities as provided by state statute. That offer was never accepted. Shortly thereafter, the town placed a chain
across the street that dead-ended at the Parker tract because of numerous
complaints from neighbors that vehicles were running off the end of
the paved street and onto the parcels.
Parker then filed this action claiming that the town was obligated
to provide utilities at its own expense and that the placement of the
chain constituted a regulatory taking. After surveying basic regulatory takings
law, including Lucas and Penn Central, the court analyzed
the town’s action in placing the chain across the street. While the Parker parcel was subdivided the
court treated it as one inclusive parcel of undeveloped land. There are no paved streets leading into the
Parker tract. The town action
did not deprive Parker of access to her property as it was still accessible
from a wide variety of streets and rights of way.
The chain was located over the street and thus there was no physical
invasion of the Parker tract. The second regulatory takings claim
allegedly arose when the town zoning official indicated that he would
not issue any building or location improvement permits for the tract. There was, in fact, no permit application from
Parker. In addition, there was
no appeal of a permit denial to the BZA.
Thus because Parker failed to exhaust her administrative remedies,
the trial court lacked subject-matter jurisdiction to hear her constitutional
claims. The court refused to
apply the futility exception to the exhaustion requirement since that
exception is to be narrowly construed.
The purpose of seeking a permit is to give the court a decision
that can be reviewed so as to properly adjudicate the as applied regulatory
takings claim. The court noted that the BZA might have developed
an alternative to the denial decision, including a conditional approval
based on factors unique to the parcel. The third regulatory takings claim
allegedly arose when the town refused to extend utility services without
the assessment of costs. In
this situation the court applied the Penn Central analysis of reasonable investment-backed
expectations. When Parker purchased
the lots she was charged with knowledge of the existing city ordinances
and state statutes dealing with utility services. She could only have expected that the town
would either grant or deny developmental permission and utility services
based on its stated policy of requiring reimbursement for costs. The state authorized the town to levy assessments
for the provision of utility services and when the town exercised its
power, there was no regulatory taking.
[g] Shemo v. Mayfield Heights[63] The owners of a 22.6 acre parcel bordered
by commercial and residential uses, as well as an interstate highway
challenged the residential zoning classification for the site in June
1995. The parties stipulated
that the existing zoning classification was unconstitutional, but that
the city reserved the right to rezone the property.
The city rezoned the parcel to a cluster SFR zone.
The owners then challenged the rezoning decision and urged that
they were entitled to have their lands zoned for commercial and warehouse
uses. While the case was on appeal the Ohio Supreme
Court decided to separate out the two prongs of the Agins
taking test, namely whether the ordinance deprives the owner of an economically
viable use and whether the ordinance fails to advance a legitimate governmental
interest.[64] Only
the economically viable use test is employed in dealing with a regulatory
takings claim. Likewise, only the advancement or reasonable relationship
test is used where a due process claim is made.
In this case, the trial court found
that the cluster SFR zoning classification did not meet the reasonable
relationship standard, even after allocating the burden of proof to
the owners. The court of appeals
had remanded the case to the trial court to apply the separate tests,
but the supreme court determined that the ordinance was unconstitutional
and therefore no remand was required.
The court reviewed the trial court judgment, not the rezoning
decision. The city argued that under the deferential
“fair debate” standard used in Ohio, the rezoning ordinance was reasonably
related to several legitimate public objectives including maintaining
the residential character of the neighborhood, maintaining a mixed blend
of uses and preventing undue traffic congestion.
The court employed a Nectow-type hard look at the individual rezoning
decision, discounting the adjacent residential uses by focusing on the
adjacent commercial uses located near the interstate highway. Evidence was proffered by the city showing
concern by the residents of the adjacent homes regarding the commercial
development of the area. The
court found that insufficient even under the fair debate standard. The court suggested that the externalities
from the commercial development could be minimized through buffering
requirements. The court also
found that the city’s traffic congestion claims were unsupported by
the evidence. The court also rejected the claim that the
owners of the tract created their own hardship in developing the area
for residential use by selling off portions of the tract at earlier
dates. The court minimized the self-imposed hardship
argument by saying that the owners made legitimate business decisions
that should not be held against them when determining the validity of
the rezoning ordinance. With
this case, Ohio places itself in the Illinois camp of scrutinizing very
closely zoning decisions that limit the developmental potential of a
site while stating that their scope of judicial review is deferential.
[h] San Remo Hotel L.P. v. City and County of San Francisco[65] The hotel asserted that the application
of the amended hotel conversion ordinance in 1990 constituted a regulatory
taking. The hotel property was
developed in 1906. It had a
long history of both tourist and long-term residential use. The hotel was extensively refurbished in the
early 1970s who continued the dual use.
Under the terms of the 1990 ordinance, the hotel would be prohibited
from renting rooms to tourists unless it paid the city a $ 567,000 conversion
fee or provided suitable replacement housing and received a CUP. The in lieu fee was based on the city’s finding
that all of the units were being used for long-term residents at the
time the first hotel conversion ordinance was enacted in 1979. The hotel first instituted litigation in the
federal court, but the Ninth Circuit determined that it was more appropriate
for the litigation to take place in state court.[66] The city filed a demurrer claiming that the
hotel had not stated a cause of action for a regulatory taking. The court initially had to determine
the appropriate scope of judicial review of the conversion ordinance. The hotel asserted that the higher level of
scrutiny employed by Nollan/Dolan for impact fees and applicable
in California through the Ehrlich case should be used.[67] The imposition of discretionary fees by a governmental
body presents an inherent and heightened risk that the local government
will manipulate the police power to impose conditions for which it would
otherwise have to pay just compensation.
The court found the fees imposed here are analogous to the types
of fees imposed in Nollan/Dolan/Ehrlich. In order to qualify for a CUP to rent rooms
to tourists, the hotel was under the same type of duress as the owners
in those 3 cases. Thus, the
heightened scrutiny analysis should be applied.
The in lieu fee here was clearly set at a level to fund replacement
housing that the city wanted to provide.
That type of decision was the type that the Supreme Court felt
warranted closer scrutiny to avoid overreaching. The court found that the demurrer should
not have been granted by the trial court as to the as applied regulatory
taking claim. The court applied
the dual Nollan/Dolan
test of requiring the city to prove that there was both an essential
nexus between the permit condition or in lieu payment and the public
impact of the proposed development and that a rough proportionality
existed between the magnitude of the fiscal exaction and the effects
of the proposed development. The
allegations of the hotel were sufficient to raise factual issues on
both questions. While the court readily admitted that providing
low and moderate income housing was an important governmental objective,
the hotel raised questions about the nexus or relationship between the
replacement housing and fee requirement and that objective. There was a substantial factual dispute as
to whether the hotel in 1981 and 1990 was completely committed to residential
as opposed to tourist units. The
city presumed that it was entirely a residential operation, but if it
was not, the nexus between continued use of tourist units and the so-called
replacement fee was unclear at best.
Likewise, there were substantial questions about the proportionality
of the imposed fee since it was predicated on that same presumption.[68] The earlier cases upholding the hotel conversion
ordinance did not address the as applied regulatory takings claim made
here by the hotel. The court
also found that the payment of the fee under protest did not constitute
a waiver of the hotel’s right to make its regulatory takings claim. The hotel also sought a writ of mandate
that it was a valid NCU and therefore did not have to get a CUP from
the city in order to rent rooms to tourists.
The court reached a different view as to the effect of the certification
of rooms made by the city at the time of the enactment of the conversion
ordinance than did the court in Tenderloin Housing Clinic.[69] In that case the court found that the hotel
had achieved a NCU status based on the certification by the city that
it was renting rooms to tourists without the hotel having to prove that
it was actually engaged in that type of room rental business. In this case, the court found that the certification
order was not determinative of whether there was a legal NCU in existence.
The court looked to the underlying zoning ordinance and found
that there was no distinction made between residential and tourist hotels.
Thus even though the certification decision showed no tourist
use, it may have had that right when the conversion ordinance was enacted. If the use of the premises for tourist rentals
was allowed, it would have been a valid NCU. The court remanded the issue to the trial court to take evidence
on whether the hotel property was actually used for tourist rentals
prior to the enactment of the ordinance.
[i] City of Annapolis v. Waterman[70]
Plaintiff purchased a 3-acre tract
of land in the mid-1970s with the purpose of developing it in three
phases. As part of the first
phase development approval process the developer agreed to provide 2375
square feet of recreational space in an appropriate location as part
of the future development of the last two phases.
When the second phase was approved it did not contain that recreational
space. The third phase plat
was submitted in 1990. The
plat designated a 4598 square foot recreational easement that ran behind
the proposed 8 duplex units. Both
the staff and the Planning and Zoning Commission recommended denial
of the plat because of alleged density and traffic problems and violation
of the recreational space condition. The Board of Appeals upheld the commission's
findings, based in part on its conclusion that the easement dedication
would cause each of the lots to fall below the minimum size required
by the ordinance. The trial
court reversed the board's decision.
While this litigation was ongoing the city amended its zoning
ordinance to require site design review prior to subdivision approval.
On remand from the trial court, the city applied site design
review to the proposal and conditioned its approval of the plat on leaving
one of the new lots vacant. The
city also required that the 2375 square feet of recreational space be
located on that lot. The plaintiff responded by filing this regulatory
takings claim asserting that the original condition created an unconstitutional
takings. The trial court found that a taking had occurred
by focusing on the decision's impact solely on the single lot. The city's zoning and subdivision ordinances
emphasize the need for open space.
The site design plan review procedures also attempt to maximize
the amount of available open space and give the city the power to reject
such plans that do not achieve compatibility with safety, efficiency
and attractiveness standards. The
use of conditions on subdivision plats to achieve legitimate public
objectives was well recognized in Maryland.
The court distinguished between common law dedications and mandatory
dedications. Common law dedications involve an offer to
dedicate and an acceptance by a local government while mandatory dedications
arise from the exercise of the police power.
The recreational land requirement is not a dedication because
the proposed space was not intended for general public use. Thus the requirement is a condition, not a
dedication. While a dedication
requires a developer to transfer title to a governmental entity, a condition
merely limits the method in which a property owner may thereafter use
his property. The court examined Maryland law to see whether
it was more appropriate to apply the Mahon/Lucas or Nollan/Dolan
tests to the city's condition. It
determined that the Nollan/Dolan test would not be applicable
where there was no dedication or transfer to the government. The real issue is whether a valid public purpose
existed for the condition and whether the end result is to leave the
owner with no remaining viable economic use of the totality of his land. In applying the Mahon/Lucas test the court
dealt with the denominator problem.
The lower courts had focused on the single lot that was to hold
the open space. This court determined
that at least the entire third-phase property must be included and hinted
that the entire three phases must be considered since the owners have
received substantial economic benefits from sales of lots during the
first two phases. Since the remaining duplex lots clearly retained
substantial value, there was no evidence to support a finding of a regulatory
taking by the imposition of the condition to provide recreational space
for future residents of the subdivision.
[j] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency[71] Several property owners asserted that
a temporary planning moratorium adopted by the TRPA constitutes a regulatory
taking of their property interests.
In response to changes in the interstate compact in 1980, TRPA
adopted a moratorium on development pending the enactment of a new regional
plan. The moratorium was in effect for nearly 3 years
until the new plan was adopted. That
plan, however, was challenged by several parties as not being strong
enough to comply with the new mandates regarding protection of the lake.
This led to a revised land use plan being adopted in 1987.
Litigation was initially filed in 1984 and has led to several
Ninth Circuit decisions in the ensuing years.[72] The district court found that as to two of
the earlier time periods, plaintiffs had stated a § 1983 cause of action
for a regulatory taking, but that for two other time periods there was
no regulatory taking or the claim was time-barred.
Both parties appeal. The trial court had based its regulatory
taking decision as to the earlier periods on its conclusion that the
moratorium was a Lucas total taking. It
had specifically found that if Penn Central was applied there was no taking.
The takings claims are based on a facial attack on the moratorium.
In such facial attacks, the court is to look only at the regulation’s
general scope and dominant features rather than to its individual effect
or impact. Facial attacks place
a substantial burden of proof on the property owner. The Ninth Circuit examines the aggregate/disaggregate issue, not
in terms of area, but in terms of time.
Plaintiffs assert that for the period of time covered by the
moratorium, there has been a Lucas deprivation of all economically feasible uses of the
land. The court, however, refuses
to temporally divide the fee simple absolute into shorter time periods. The court relies on Penn Central to conclude that
severing the property interest into discrete segments should not be
the basis of a regulatory takings claim.
While Mahon might suggest a conceptual severance, other Supreme Court
decisions, including Keystone Bituminous and Andrus v. Allard
reject disaggregation. Mahon
can be distinguished from the usual case where a single fee simple absolute
estate is involved since state law allows for there to be two separate
fee simple absolute estates, one in the surface and one in the minerals. In this case there is clearly no separate durational
estates involved. A contrary
result would clearly invalidate all development moratorium ordinances. That ignores the Lucas admonition that even
a very important governmental objective may not save a land use regulation
that deprives the owner of all economically viable uses of the land. The court rejects the notion that First English
adopted a temporary taking analysis that requires a temporal disaggregation
or severance. The court reads
First
English as authorizing temporary takings in the situation
where the court finds a taking and then the local government changes
the regulation to remedy the overreaching.
It dismisses the language in First English that discusses normal regulatory delays as not
being temporary takings as not leading to the implication that moratoria
are not normal regulatory delays deserving of protection. The court further indicates that areal disaggregation is also
not to be used in takings analysis. In then applying Lucas
to the fee simple absolute interests, the court notes that the regulations
effectively prohibited all development, but that the regulation was
designed to be temporary. It
tries to define the term “economically beneficial or productive use”
that is the heart of the Lucas
test. The court refuses to equate the terms use and value. While admitting that value is strong evidence
of the availability of economically beneficial uses, it is not the exclusive
measuring stick. Because the
regulation was temporary, it did not have the effect of denying either
the future developmental use or value of the properties. The future uses have substantial present values. The court does note that should the moratorium
be extended for a lengthy period of time, that future value and/or use
may be diminished substantially. But
in this case, given the facial attack and the reality of the reasonably
short period of time the moratorium was in effect, the court concludes
that there was no Lucas
taking. Since no Penn Central taking was found
by the trial court, the Ninth Circuit also affirms that finding given
its analysis of the Lucas taking issue.
[k] Santa Monica Beach, Ltd. v. Superior Court[73] One of the intriguing questions in
the area of regulatory takings is what should courts do regarding the
first prong of the Agins test, namely does the regulation substantially advance
a legitimate state interest?[74] Should the courts take a soft glance approach
as many of them do in the substantive due process arena, or should they
follow the Scalia hard look approach as used in the development exactions
cases? This case attempts to
address this important question, even though the results led to 5 separate
opinions.[75] In 1979 the city adopts a rent control ordinance,
delegating to a rent control board the power to establish maximum allowable
rents and providing for annual general and special adjustments for rental
units. Plaintiffs own a 12 unit
apartment and sought an increase in the allowable rents in 1992. The board, after a hearing, denies the request.
In 1993, the board allows a permanent rent increase of $ 3.00/month/unit
and a temporary rent increase of $ 58.00/month/unit.
Plaintiff challenges the board’s actions as a regulatory taking,
asserting that the statute as applied does not meet the substantial
advancement test since the alleged effect of the law has been to diminish,
not augment, the number of affordable rental units within the city.
The city initially asserts that the
plaintiff’s challenge is really a facial attack, not an as applied attack
and is therefore barred by the statute of limitations. While not directly resolving that issue, the court presumes that
the plaintiff’s challenge is to the individual decision and not the
enactment of the ordinance. The
court initially notes that the wisdom or stupidity of rent control ordinances
is not at issue. While courts
have struck down rent control ordinances as violating the Fifth Amendment,
they have done so on takings or procedural due process grounds.
The court notes: “The notion that a court may invalidate legislation
that it finds, after a trial, to have failed to live up to expectations,
is indeed novel. In our constitutional
system, it is generally assumed that only the legislative body that
enacted the statute may exercise a power of repeal if that statute fails
to meet legislative expectations.”[76] The majority rejects the application of the
hard look review espoused in Nollan-Dolan in the ordinary regulatory takings
analysis. In cases such as this
where an adjudicatory decision is involved, the appropriate scope of
judicial review is the substantial evidence test.
Where a legislative decision is involved, the appropriate scope
of judicial review is even more deferential under an arbitrary or capricious
test. A per se attack on a
rent control ordinance should be analyzed under a rational relationship
test, since it is a form of price control regulation.
An as applied attack on a rent control decision should be based
on the substantial evidence test to determine if there was a confiscatory
decision. Where the plaintiff
makes an attack using the “substantially advancing” test, the scope
of judicial review is the most deferential.
It allows the court to consider post-decision rationales to support
the ordinance. That fact that the ordinance may have a deleterious
impact on those individuals who were intended to be protected does not
invalidate the ordinance. Even
if imperfect, the ordinance may still protect some existing tenants
from being displaced. That is
sufficient under the Agins
test. It is not within the province of a court to determine how long
a legislative experiment should be carried out.
The court eschews a role in declaring a regulatory program a
failure and thus unconstitutional.
While there may be circumstance where changes in conditions may
support an as applied challenge, such as in the case of a zoning ordinance
left behind by changing conditions in the neighborhood, that does not
authorize a court to invalidate an ordinance whose purposes may be frustrated
by changing conditions.
[l] Isla Verde International Holdings, Inc. v. City of Camas[77] Plaintiff seeks approval of a 51 lot
subdivision. At the public hearing,
the city’s fire department asks for the inclusion of a secondary access
road for emergency purposes because of some unique features, including
steep slopes, long cul de sacs and nearby forest land.
The Planning Commission approves the subdivision subject to the
construction of the secondary road, compliance with the open space requirements
of the ordinance requiring the set aside of 3% of the subdivision and
payment of impact fees for park and recreational facilities and open
space. The developer objects to all three requirements before the city
council. The council, nonetheless, affirms the decision
of the Planning Commission and the developer seeks judicial review. The scope of judicial review of a subdivision
plat approval is the substantial evidence test. The appellate court reviews the administrative
record and not the record at the trial court. The review is deferential and the evidence
is viewed in the light most favorable to the party that prevailed at
the fact-finding level of decision-making.
The trial court found that the secondary road requirement violated
the substantive due process rights of the developer. Under Washington law, substantive due process review involves a
balancing test using a means-end analysis and an unduly oppressive analysis.
The court has no trouble finding that providing emergency vehicle
access is an important governmental objective, especially in light of
the unique physical features of the development.
It also finds that the added costs alone do not make the requirement
unduly oppressive. There was no evidence to show that the added
costs were extraordinary or would diminish the value of its investment. The fact that the city responded to public
criticism of the development does not, by itself, show that the decision
to require the secondary road is arbitrary or capricious. The court, however, finds that the
30% set aside for open space violates the roughly proportional Dolan
test. Here the court finds that
Dolan
applies even though there is no dedication or exaction requirement.[78] While the owner would retain its possessory
interest in the set aside acreage, it would have to leave it undeveloped. That implicitly is treated the same as an exaction.
The court does find that the set aside requirement meets the
nexus test because there is a relationship between preserving open space
and protecting wildlife and recreational resources.
But the court finds that there was no city study showing that
the 30% figure is justified. The court assumes that even though this is
not an individual application, but a figure set by the legislative body,
the rough proportionality test still applies.
The court does not review the impact fee ordinances under Nollan-Dolan
because no fee had been imposed at the time of the trial thus making
that issue not ripe for review.
[m] Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck[79] Plaintiff owns a 150-acre tract of
land that has been leased to a private golf club since 1921. The tract, however, was zoned for SFR use until
the late 1980s when the city began to study the need for open space
in the community. The tract
is then rezoned to a recreational district where golf courses are allowed,
but where no residential development is authorized.
Simultaneously with the city planning efforts, the plaintiff
began exploring the possibility of creating a residential subdivision
while retaining the golf course. After
the rezoning of the land the town denied the permit and plaintiff filed
this regulatory takings claim. The only issue on appeal is the first
prong of the Agins test, namely whether the rezoning substantially
advances a legitimate state interest. Plaintiff tries to apply the Nollan-Dolan hard look approach to this means-ends
test. The city argues that there
is a need for preserving open space, providing recreational activities
and mitigating flooding that is served by the rezoning decision. The court relies on Del Monte in concluding that
the heightened scrutiny employed in exactions cases do not apply to
general regulatory takings cases. While
the plaintiff concedes that the rough proportionality prong of Nollan-Dolan would be inapposite
to a general land use regulation, they urge the court to apply the “essential
nexus” test. The court notes
that Del
Monte approved a jury instruction that equates the substantially
advancement test with the reasonable relationship test. If the Supreme Court wanted to apply heightened
scrutiny it would not have approved the classic deferential reasonable
relationship test. The court
also rejects the argument that the town could have achieved its objectives
in a way that would have caused less damage to plaintiff’s development
plans. The court finds that it cannot second guess
legislative zoning decisions so long as they fall within the parameters
of the 5th Amendment.
[n] Lambert v. City and County of San Francisco[80] The debate over regulatory takings
at the Supreme Court is evident from an unusual opinion written by Justice
Scalia and joined by Justices Kennedy and Thomas in the denial of the
petition for certiorari in this case.
As with San Remo
this case involves the San Francisco Residential Hotel Unit Conversion
and Demolition Ordinance. By
ordinance, the city does not allow significant alteration, enlargement
or intensification of a tourist hotel except upon the issuance of a
discretionary permit. The conversion ordinance prohibits the issuance
of a permit for the conversion of units from residential to tourist
use unless the owner agrees to provide either a one-to-one replacement
for those units or pays a portion of the replacement costs of those
converted units. The Lamberts
own a hotel that has 24 residential units and 34 tourist units.
They seek the required discretionary permit to convert the 24
residential units to tourist use. The
city appraised the replacement costs of the units at $ 600,000. The Lamberts offered $ 100,000. The Planning Commission denies the permit and
plaintiffs use claiming a regulatory taking. The California Court of Appeals opinion finds no taking and does
not apply Nollan-Dolan
because the permit denial was based not on the failure to pay the $600,000
but on the general ordinance not allowing alteration or enlargement
of tourist hotels. The opinion
found tghat the decision was based on traditional notions of effect
on traffic patterns and the surrounding neighborhood.
Justice Scalia, however, believes that
the real reason behind the denial decision was the failure of the Lamberts
to comply with the demand for the $ 600,000 replacement fund. He finds that the traditional concerns relating
to traffic and congestion would somehow melt away if only the fee was
paid, since in other cases the city has approved such conversion when
the fees have been tendered. Thus
Justice Scalia concludes that Nollan-Dolan should have been applied to
the decision. Where there is
a demand for money or other property, Justice Scalia would apply Nollan-Dolan unless the city
could sustain the burden of proving that the denial would have ensued
even if the demand for money had been met.
That type of burden would undoubtedly be very hard to show. He finds that this is the classic type of situation
that Nollan-Dolan were designed to invalidate. He also finds that state courts and zoning
authorities are ignoring the admonitions of Nollan-Dolan that justifies the court to
grant the writ for certiorari to reinforce the central position of the
Fifth Amendment in exaction cases. [2]
Vested Rights
[a] McPherson v. City of Manhattan Beach[81] In September 1990, the city approved
a vesting tentative subdivision map and corresponding CUP to permit
the construction of 4 beachfront condominiums on a double sized lot. In January 1991, the city amended its zoning
ordinance that lowered by several feet the maximum height limitation
on multi-family buildings. In
September 1991 the final plat was submitted and approved shortly thereafter. The plat, however, was never recorded because
the developer had not paid the requisite property taxes and had not
submitted some additional data. The
developer did nothing until 1996 when it submitted the data and paid
the delinquent taxes. It sought a CUP in 1997.
Plaintiffs opposed the CUP saying it violated the 1991 amendment
lowering maximum heights. The
developer argued that he had a vested right to develop under the ordinances
in effect when he submitted his tentative subdivision plat. The city took the position that under its ordinances any vested
right expired 3 years after the developer failed to record the final
approved plat. The developer
argued that the city ordinance terminating vested rights was preempted
by the state Subdivision Map Act that vests right at the time of the
filing of the tentative map. But since the city ordinance does not deal
with the time of vesting, but merely extinguishes the right upon failing
to record after the final map has been approved, the court found no
preemption. The court also
found that the automatic termination effect of the city ordinance did
not violate the state statute that requires notice and a hearing prior
to the municipal determination as to a final plat.
The state statute dealt with the approval/disapproval decision
on the final plat. The city
ordinance only dealt with the post-approval action of recording the
plat. There is no state requirement that a hearing must be held where
the developer failed to meet a clear condition subsequent that would
terminate his vested right to develop. § 1.04 Land
Use Controls and the First Amendment [1]
Religion Clauses
[a] Boyajian v. Gatzunis[82] Defendant church initially purchased
a 8.9 acre parcel of land in the Town of Belmont and conducted religious
services in a small building for several years. The area is zoned for residential use. The church then sought a discretionary permit to build a much larger
religious facility. Religious
uses are allowed as of right in the zone, but the permit was sought
in order to exceed the allowable height limit.
Under state law,[83]
zoning regulations may not restrict the use of land for church purposes,
but may impose reasonable regulations on such a use. The town after several public hearings issued the permit. Plaintiffs are neighbors who claim that the
state statute and municipal ordinance violate the Establishment Clause
of the U.S. Constitution. The court reviewed both the statute
and ordinance under the three-part Lemon test. It was conceded that the statute did not foster excessive governmental
entanglement with religion so the court focused on the first two parts,
whether the statute has a secular legislative purpose and does not have
as its principal or primary effect the advancing or inhibiting of religion.
The claim was that giving religious organizations a preferred
zoning status, by essentially exempting them from use regulation violated
the Establishment Clause. While the history of the enactment of the statute
reflected a legislative attempt to reverse a town’s exclusion of churches
and religious schools, the First Circuit concluded that the statute
fits within the boundaries of “benevolent neutrality” required by the
interstices of the Establishment and Free Exercise clauses. The statute’s principal purpose was to prevent
discrimination against religious uses. There is no implied endorsement of religion or a specific religion
in a statute that tries to remove discriminatory treatment.[84] The statute was amended after its initial enactment
to include uses other than religious uses. Therefore, there is no argument under the extant version that the
statute’s primary effect is to enhance religion. Where a state chooses to prevent its local governments from treating
religious uses as non-residential in character, it is not favoring religion.
While the free exercise clause would not require a state to adopt
a statute like the one here, the state is free to prevent local governments
from erecting barriers to communal worship. The
town ordinance, that was amended in response to the enactment of the
state statute, specifically authorized religious uses in residential
zones. Treating the ordinance, no differently than the state statute that
spawned its passage, the court found no Establishment Clause violation
regarding the town’s state-mandated decision to allow such uses in residential
zones.
[b] Concerned Citizens of Carderock v. Hubbard[85] Plaintiffs are homeowners and prospective
neighbors of a synagogue that was given a building permit to construct
a house of worship and support facilities on a 5 acre parcel. Under the county’s zoning ordinance, churches
and other places of worship are permitted uses in single-family residential
zones. Other types of charitable,
philanthropic or social organizations are not allowed uses in such zones.
But other types of non-single family residential uses are allowed
such as embassies, mobile homes, utility lines, bed and breakfast lodgings
and home offices. Plaintiffs alleged that the ordinance violates the Establishment
Clause by endorsing religion through its treatment of churches as a
permitted, as opposed to a conditional, use.
The court applied the Lemon
test, notwithstanding the fact that courts and commentators had announced
its demise for the past 20 years.
The county argued that the ordinance had a secular purpose, namely
the fostering of development that is harmonious and compatible with
single-family residential use. Merely
because other compatible uses are excluded or subject to a conditional
use permit process does not make the exemption one that has a religious
purpose. The ordinance was treated as being neutral, even though it specifically
named churches and houses of worship as constituting a permitted use.
The exemption given churches was also given to non-religious
uses providing sufficient evidence that the ordinance was neutral.
In fact, the ordinance required religious organizations that
operated private clubs or non-religious activities to get a conditional
use permit if they wanted to locate those facilities in a single-family
zone. The ordinance and the
permit issued pursuant thereto, are both valid actions under the Establishment
Clause.
[c] Mayor and Board of Aldermen v. Hudson[86] A church sought to be designated as
a public/quasi-public facility under the city’s zoning ordinance in
order to apply for what the court labeled a “conditional use variance.” The church wanted to expand its facilities
and parking lot. The Board voted
to grant the church’s request. Several
neighbors participated in the Board’s public hearing opposing the CUV. They brought this action challenging the Board’s
decision. Under Mississippi law, the scope of
judicial review of local zoning decisions is quite restricted and subject
to being overturned only if arbitrary, capricious or illegal. The party challenging the decision shoulders
a heavy burden of proof and the Board decision will be upheld under
the classic “fairly debatable” standard.
Under the city’s ordinance, churches and other religious organizations
can be designated as public facilities.
In dealing with the church’s expansion plans, the Board can consider
the impact on the surrounding neighborhood and take whatever steps it
deems appropriate to minimize any negative effects.
The Board decision clearly met the “fairly debatable” test since
the Board was weighing the various factors that go into the issuance
of the CUV and the designation of a public facility.
The trial court decision that had reversed the Board’s decision
was in error and amount to a substitution of judgment by the trial court
for the Board, a result not warranted under Mississippi’s limited scope
of judicial review.
[d] Bethlehem Christian Fellowship, Inc. v. Planning and
Zoning Commission[87] Plaintiff executed a contract to purchase
a parcel of land subject to the receipt of getting a discretionary permit
from the town in order to construct a meetinghouse. There was a time limit placed on how long the
plaintiff could take to secure the permit.
Because the permit decision-making process took longer than expected,
several extensions of the agreement were made.
The PZC denied the permit request and plaintiff sought judicial
review. The town argued that
the plaintiffs lacked standing to appeal since the late for the option
contract to be exercised had passed. The court viewed the standing issue
as one of aggrievement. The
party claiming standing must demonstrate a specific personal and legal
interest in the subject matter of the decision and must also establish
that this interest has been adversely affected by the governmental decision. At the time the plaintiff filed the first appeal
the purchase and sale agreement was still in effect. It was no longer in effect when the trial court
decision was rendered. The court
treated the agreement in this case as a purchase and sale agreement
with a condition precedent, as opposed to an option contract. In cases where an option contract expires prior
to judicial resolution of the zoning issue, there is no aggrievement.
But where you have a purchase and sale agreement, even where
there is a specified period of time for performance, that period may
be extended for a reasonable time, since time is not of the essence
in real estate purchase contracts. The parties to the contract treated it as being in full force and
effect during the court proceedings, even though the time specified
in the contract had been passed. Thus,
the plaintiff still was an aggrieved party who had standing to challenge
the denial of the permit by the commission.
[e] Jesus Fellowship, Inc. v. Miami-Dade County[88]
The church owned a 12.2 acre tract
in a residential area zoned for SFR use on a minimum one lot parcel. They sought a special exception to expand the
existing religious facilities and to start a new private school and
day care center. The planning
staff recommended denial of the permit but the Zoning Appeals Board
voted to conditionally approve the permit.
Further appeal to the County Commission was made by neighbors
who objected to the Board decision.
The Commission voted to conditionally approve as well, but lowered
the maximum number of students from 524 to 150 and limited the school
to kindergarten through sixth grade.
The trial court upon the Church's appeal, affirmed the Commission's
conditional approval. The court found that the trial court
decision applied the wrong scope of judicial review. Where an applicant for a special exception shoulders the burden
of producing evidence that the proposed use is consistent with the land
use plan, the burden shifts to the county to show through substantial
evidence why the permit should not be issued.
In this case, the Commission's decision to further lower the
enrollment figure and limit the grades offered was not supported by
any competent, relevant evidence in the record.
The only witnesses before the Commission either provided irrelevant
testimony or lay testimony that could not be treated as expert testimony
on technical subjects. Therefore, the court reversed the trial court's
decision and rendered a decision that the permit was conditioned by
the Board should be issued.
[f] First Baptist Church of Perrine v. Miami-Dade County[89] The church operated an elementary school
on its property. It sought two
discretionary permits and a sign variance in order to expand the school
to include a seventh and eighth grade that would also result in an increase
in enrolled students from around 500 to 650.
The planning staff recommended that the permits and variance
be issued. At the public hearing before the County’s Community
Zoning Appeals Board, neighborhood opposition to the expansion project
surfaced. Specific questions
about the required traffic study were raised.
Under Florida law, the applicant for a discretionary permit bears
the initial burden of producing evidence that its proposal is consistent
with the county’s land use plan. Once
that burden is satisfied, the burden of producing evidence is shifted
to the opponents to show that the application does not either meet the
performance standards or that the proposal is contrary to the public
interest. In this case the Board rejected the permit
application because there was no church-introduced evidence on the issue
of traffic impacts. That is
a requirement under the zoning ordinance.
The church also argued that the Board’s
decision violated the Florida Religious Freedom Restoration Act.[90] They argued that the ruling restricted the
free exercise rights of its congregants and that the county had not
shown a compelling state interest to support that restriction. Relying on Lukumi Babalu Eye, the court
rejected the application of the compelling state interest test to an
admittedly neutral ordinance. The
requirements of the ordinance relating to traffic impacts for discretionary
permits is clearly neutral regarding religious conduct.
In fact, the court noted that if the county modified its requirements
for churches it might run into an Establishment Clause problem. The court also found that the Board decision
did not prevent or seriously inhibit the Church’s ability to provide
religious education. There may
be other locations that do not have the same type of traffic problem
as the present location. In addition, it may try to accommodate the
expansion into the higher grades by lessening the enrollment in the
lower grades so as not to need a building expansion and as not to create
substantial traffic impacts.
[g] Camp Ramah in the Poconos, Inc. v. Zoning Hearing Board[91] The Camp is a non-profit organization
that runs a summer camp devoted to providing a Jewish educational experience.
They own two parcels of land adjacent to the existing camp totaling
almost 30 acres. The vacant parcels are located in an agricultural
district that allows recreational, religious and educational uses only
by special exception. The ordinance
further provides that for religious uses there must be a 150 foot setback,
while for educational and recreational uses the setback requirements
are expanded to 350 feet. The
Camp seeks approval of its expansion plans as a religious use to take
advantage of the smaller setback requirements and also seeks a variance
in order to place a stormwater detention basin and septic system on
the smaller of the two lots. The board denies the special exception and
variance requests finding that the proposed uses are not religious in
character and that the requirements for a variance had not been shown. A key issue is whether the proposed
children’s camp is a religious use.
It is not the owner of the use that determines the type of use. It is the proposed uses that allow for its
classification as a religious or recreational use.[92] There is a need for larger buffer zones for
recreational or educational uses than for religious uses. Thus the proposed plans were properly rejected
since they did not comply with the 350-foot setback requirement. The court also upholds the board’s decision
that the proposed adult retreat facility is not an allowed use in the
agricultural zoning district. The
retreat is designed to accommodate 125 people, including the capability
of having overnight stays. Such
a use is the equivalent of a hotel or conference center and not a religious,
recreational or educational use that would be allowed with a special
exception. Finally, the court finds that the plaintiff
has not shown sufficient hardship to justify the awarding of a variance. [2]
Free Speech Clause
[a] Adult Entertainment Facilities (AEFs) [i] City of Erie
v. Pap’s A.M.[93] The City enacted an ordinance prohibiting
public nudity, based in large part on the type of ordinance found constitutional
in Barnes.[94]
Notwithstanding the similarity between ordinances, the Pennsylvania
Supreme Court had found the ordinance unconstitutional on First Amendment
grounds because it unduly burdened the AEF owner’s rights of free expression.[95] The plurality opinion finds that nude dancing
is entitled to limited First Amendment protection. By targeting conduct, the ordinance is content-neutral
and therefore the Pennsylvania court should not have applied a strict
scrutiny, less onerous alternatives analysis. The plurality treated the ordinance as not a total ban on nude dancing,
but merely a limit on one type of nude dancing that has as its primary
objective the prevention of secondary effects.
Thus the plurality applied the O’Brien four-par test of whether the governmental
regulation is within the constitutional power of the government to enact,
whether the regulation furthers an important or substantial governmental
interest, whether the governmental interest is unrelated to the suppression
of free speech and that the restriction goes no further than is necessary
to achieve that objective. The
concurring opinion would find that as a content neutral ordinance of
general applicability, no First Amendment protections adhere to the
conduct being proscribed. As Justice Scalia observed: “even if one hypothesizes
that the city’s object was to suppress only nude dancing, that would
not establish an intent to suppress what (if anything) nude dancing
communicates.”[96] The remaining justices all would have applied
a higher level of scrutiny to the ordinance under the First Amendment,
with Justice Stevens particularly concerned about the extension of Renton
to non-locational decision situations.
While not as fractured as Barnes the Supreme Court is still quite divided
on the basic approach to First Amendment issues relating to nudity and/or
sex. It is clear that Renton
is alive and well insofar as it treats secondary effects as some sort
of talisman against judicial interference with municipal attempts to
rid themselves of AEFs. Yet
it is unclear what is the appropriate First Amendment approach. It appears that the “fiction” that ordinances such as this are content-neutral
will continue to be the bedrock for dealing with regulation of AEFs.[97] [ii] Charette v.
Town of Oyster Bay[98]
An AEF operator sought injunctive relief
against the enforcement to an AEF ordinance. The first round of litigation led to a remand for development of
a sufficient record to see whether the ordinance meets the Renton guidelines. Under the ordinance, cabarets are allowed in
two of the three business districts.
The AEF in this case is located in the district where restaurants
and similar businesses are allowed.
The operator claimed that his AEF was a similar type business
allowed in the district by receipt of a discretionary permit.
The town argued that cabarets are only allowed in the two districts
where they are specifically listed.
The court did not apply the traditional Renton or Freedman analyses to determine
whether injunctive relief was appropriate. It mainly determined that since the AEF was located in a district
in which it was not allowed, there was no First Amendment violation. The Operator argued that the discretionary
permit requirement for live entertainment in the district violated the
First Amendment, because of the unbridled discretion given the decision-makers
as to whether to issue a permit, along with the fact that there were
apparently no time limits on the permit issuing process.
Disregarding the fact that the Town had argued in an earlier
phase of the trial that live entertainment was allowed in the district
after receipt of a discretionary permit, the court interpreted the ordinance
as totally prohibiting AEFs from the location owned by the operator. Therefore, the court determined that the operator
had not met its burden of proof for a preliminary injunction that it
was likely to win on the merits. [iii] Wise Enterprises,
Inc. v. Unified Government of Athens-Clarke County[99] In 1997 the county amended its AEF
ordinance by not allowing AEFs in the CBD zoning district and by prohibiting
the sale of alcohol on premises holding an AEF permit. The plaintiff, a preexisting AEF, sought an
alcoholic beverage license and an AEF permit.
The county informed the plaintiff that it could not get both
permits. Under prior 11th
Circuit decisions, governments can prohibit AEFs from qualifying for
alcoholic beverage licenses as long as the regulation is content neutral.[100]
The alcohol restriction only restricts the place or manner of nude dancing
without focusing on the content of the message contained therein. Likewise, the court relies on Erie
and its findings that bans on public nudity are content neutral. The ordinance contained a lengthy preamble
evincing the county’s intent to deal with the secondary effects of AEFs
and the sale of alcoholic beverages.
The court then applies the four-part
O’Brien
test without much scrutiny. It
rubber stamps the county’s decision to prohibit the combination of nude
dancing and the sale of alcohol as going no further than is necessary
to achieve the important governmental objective of preventing the secondary
effects of AEFs. The court also found that there was no evidence
that the ordinance was enacted with the purpose of discouraging nude
dancing or hindering the communicative effects of nude dancing. The county commissioners must have been very
restrained in their discussions regarding the enactment of the ordinance
or were “wood-shedded” by the county attorney to minimize any invective
against the evils of nude dancing.
Finally, the court has no difficulty upholding the county decision
to eliminate AEFs from the CDB zone.
Applying the Renton
standard there were apparently other zoning districts where AEFs were
allowed and thus the ordinance was upheld [iv] David Vincent,
Inc. v. Broward County[101] .In
1993, the county adopted an AEF ordinance that imposed permit, building
and siting requirements on AEFs. Plaintiffs represent several adult
bookstores and live dancing establishments that were affected by the
ordinance. Plaintiffs initially sought a preliminary injunction
through the state court system, but that relief was denied. They then filed this federal action claiming
that the ordinance was both unconstitutional per se and unconstitutional
as applied.[102]
On the per se unconstitutional claim, the plaintiffs were faced with
a prior 11th Circuit decision upholding an earlier version
of the AEF ordinance.[103] Two changes had been made to the ordinance,
the first removing a waiver provision whereby AEFs could locate in zoning
districts even if they were not an allowed use if community approval
was given. The second gave non-conforming AEFs five years
to amortize their business before being required to shut down while
the prior ordinance did not have an amortization provision. The court found that neither change had an
impact on the constitutionality per se of the ordinance. On
the as applied argument, the court applied the Renton analysis to determine
whether the ordinance allows for reasonable alternative avenues of communication.
The plaintiffs challenged the district court’s finding regarding
the number of available sites and whether those sites met the test.
The 11th Circuit noted the somewhat different approaches
of the 5th and 9th Circuits to the issue of what
is an available site. The Fifth
Circuit focuses almost exclusively on physical obstacles and largely
ignores economic factors.[104] The 9th Circuit, on the other hand,
applies a multi-factor test that does include the consideration of economic
factors.[105]
The court declined to follow either approach but instead adopted its
own multi-factor test that is much closer to the 5th Circuit’s
approach. The court observed: First, the economic feasibility of relocating to a site is
not a First Amendment concern. Second,
the fact that some development is required before a site can accommodate
an adult business does not mean that the land is per se, unavailable.
. . Third, the First Amendment is not concerned with restraints that
are not imposed by the government itself or the physical characteristics
of the sites designated for adult use . . . It is of no import under
Renton that the real estate market may be tight and sites currently
unavailable for sale or lease, or that property owners may be reluctant
to sell to an adult venue.[106]
While there was evidence
produced at the district court that showed obstacles to obtaining a
site for an AEF in the allowed zones, none of the obstacles were government-imposed
or government-caused. Thus,
the district court’s finding that there were between seven and nine
available sites would not be disturbed.
In determining whether those available sites were sufficient
the court went back to the “equal footing” doctrine.
Relevant factors include the population of the area, acreage
available for AEFs as a percentage of overall size, number of existing
AEFs and demand for AEFs as represented by the number of businesses
seeking AEF permits. While criticizing the district court for not
being thorough in its analysis of the sites, the court did not reverse
the finding that the ordinance was constitutional as applied. One factor influencing the court’s decision
was that the county’s total acreage still not annexed into a municipal
corporation was shrinking so that the small number of sites would be
tolerated even though the county’s population was substantial. [v] Young v. City
of Simi Valley[107] The City is an exurban community in
the Los Angeles metropolitan area that has a population of around 100,000. Prior to this litigation there had been no
AEFs within the city. An AEF
ordinance adopted in 1978 was found unconstitutional several years later. In 1992, plaintiff sought a zoning permit for
an AEF. After filing the permit
the city adopted an emergency ordinance placing a moratorium on all
AEFs within the city. In March
199e, the City adopted an AEF ordinance that utilized a classic scatter-site
approach. In addition, no AEF could operate without getting
a discretionary permit. At
that time the ordinance would allow AEFs on about .5 percent of the
total land area of the City, but when you included the buffer zones
at most only 4 sites were available.
Plaintiff’s site was not an available site.
Plaintiff sought to lease another site and inquired of the City
as to its meeting of the AEF ordinance’s requirements.
He was informed the second site was an allowed site so he entered
into a lease of that site. The
city then told the plaintiff that no permit would issue until he provided
additional information including noise mitigation and traffic studies.
None of the additional information was contained in the original
discretionary permit requirements.
Eventually the permit was denied, in part because the City had
in the interim given permission for a bible study group to use a vacant
lot within 1000 feet of the plaintiff’s lot for a once a week outdoor
bible study program. Under the
AEF ordinance the existence of a “sensitive use” as defined by the ordinance,
either before or after the AEF is permitted will cause the AEF to violate
the ordinance. The court found that the ordinance
is unconstitutional per se in large part due to the existence of the
“sensitive use” veto power. The
court applied the Renton
test, specifically the reasonable alternative avenues of communication
doctrine. Plaintiff argued that
because any person may seek a zoning permit to open a “sensitive sue”
within the designated buffer zone while an AEF permit is pending, the
ordinance impermissibly chills First Amendment rights and denies to
AEF operators alternative avenues of communication.
By interpreting the ordinance to require no sensitive uses be
in existence at the time the application is approved and not the time
the application is filed, the city had made it difficult, if not impossible
for an AEF to get a permit. The
court noted that it is unconstitutional “for a local government to impose
a procedural requirement that delegates to certain favored private parties
the unfettered power to veto, at any time prior to governmental approval
and without any standards or reasons, another’s right to engage in constitutionally
protected freedom of expression.”[108] Combining the sensitive use veto with only
4 available sites in a community of 100,000 violated the Renton test.[109] The court further explored the delegation
of veto power to private individuals or groups. The ordinance was drafted to avoid the Freedman problems by having a reasonable time period
in which the decision to issue the permit is to be completed and for
having prompt judicial review. But
the court noted that the sensitive veto provisions, while not acting
as a prior restraint, do act as a restraint that may lead to a total
prohibition of AEFs from the community.
Obviously, the city cannot delegate to private parties, powers
it could not exercise itself. As with Larkin v. Grendel’s Den, Inc.,[110]
a standardless delegation of powers to private institutions is unconstitutional,
even without the infringement of First Amendment rights. The court reversed the district court’s
finding that the buffer zone requirements were unconstitutional as applied
because there were only 4 available sites. While that number is quite low for a community of 100,000 the court
felt it premature to find the ordinance unconstitutional since there
did not appear to be a substantial demand for AEFs in the community. No AEFs were present in the community at the
time the plaintiff applied for his permit.
The court recognized that the absence of AEFs could have been
caused by the chilling effect of the ordinance.
Nonetheless the court found that in looking at the totality of
the circumstances on the record before it that 4 sites was clearly unconstitutional.
[vi] Lim v. City
of Long Beach[111] This case illustrates how a court within
the jurisdiction of the 9th Circuit determines whether there
are “reasonable alternative avenues of communication” available under
the Renton
test. In 1994, the city amended
its AEF ordinance by expanding the buffer zone requirements, prohibiting
AEFs from certain zones where they were previously allowed and by establishing
an 18 month amortization period for non-conforming AEFs. Plaintiff owned two existing AEF’s that violate the 300 foot buffer
provision for residential districts.
The city identified 115 sites it contended were available for
use within the city. The district
court found that 27-28 sites were available and that was sufficient
to meet Renton. The district court
further found that there was no equal protection violation by the disparate
treatment of non-conforming AEF uses. The court initially noted that the
burden of producing evidence and the burden of persuasion on the alternative
avenues issue is clearly on the city.[112] It applied the Topanga Press multi-factor
formula to determine the number of sites that are reasonable available. As noted earlier, this approach allows for
the consideration of economic factors in order to show that the sites
are part of an “actual business real estate market.” The issue in this
case was the consideration of sites containing restrictive covenants
prohibiting the leasing of the premises for AEF purposes.
But the court found that private covenants do not make the sites
unavailable applying an equal footing approach.
After all private owners may restrict the use of the parcels
whether it be for AEF or any other use.
In order to satisfy its burden of proof the City must present
sufficient evidence that the sites it put forward meet the definition
of actual business real estate market.
There is a good faith standard imposed on the city to present
its evidence in a way that the court may judge whether the site is or
will become available. Since
the trial court had placed the burden of proof on the plaintiff and
did not allow the plaintiff to sufficiently present evidence that some
of the site were not legally available, the court remanded the case. Finally, the court found that having an amortization
period requirement for AEF non-conforming uses while not having such
a period for other NCUs did not violate the equal protection clause. There was a rational basis for the city to
treat AEFs differently from other uses because of their secondary effects. [vii] Alameda Books,
Inc. v. City of Los Angeles[113] It has been rare since Renton
was decided to challenge a city’s AEF ordinance on the basis that there
was insufficient proof of the secondary effects of AEFs. In this case, however, the plaintiffs were able to persuade the
9th Circuit that the amendment to the AEF ordinance was not
narrowly tailored to serve a significant governmental interest.[114] The city amended its existing AEF ordinance
to segregate different types of AEF operations so that a single AEF
structure could not, under the minimum distance requirements, have both
video booths and adult books. The
city relied on its original AEF study of secondary effects to support
the new regulation. After noting that courts are to be deferential
to legislative determinations regarding such matters as secondary effects,
the court nonetheless concluded that the entire thrust of the earlier
study deals with the segregation of AEFs from other types of uses, not
the segregation of AEF uses within a single facility. The court found no evidence in the earlier study that a combination
bookstore/arcade/video booth operation produced any of the harmful effects
of an AEF. Even though Renton
specifically authorized cities to rely on studies performed by others,
the court found that the city had not met its burden of proof to show
that the studies were relevant to the problems being addressed by the
multiple use regulation.[115] Having not proven that there was a substantial
governmental interest to be served by prohibiting multiple uses within
a single AEF structure, the city could not enforce such a prohibition. [viii] Diamond v.
City of Taft[116]
While the Ninth Circuit allows for
economic factors to be considered in determining the number of reasonably
available sites, it still is not easy to show that an AEF ordinance
violates the reasonable alternative avenues of communication test. In this case, the owner of a lot located in
a commercial zone that under the AEF ordinance allows an AEF sought
a discretionary permit. The
parcel, however, violated the distance requirements of the ordinance
and the permit was denied. The owner then argued that there were insufficient
available sites in the city under the Renton test. The city is a
rural town with a population of around 6800.
The city identified some 20 potential sites. But because several of the sites were contiguous, the district court
concluded that only 3 sites were available. The city had no existing AEFs and the plaintiff was the first person
to have sought an AEF permit. Applying
the same analysis as Lim the court examined whether the 3 sites
were part of the actual business real estate market. Plaintiff argued that the sites lacked the requisite infrastructure
for a commercial establishment and that many of the sites were currently
occupied. While infrastructure
shortcomings might take a site out of the actual marketplace, in this
case the plaintiff did not prove that any general commercial enterprise
wanting to locate on those sites would need sidewalks and streetlights. The fact that the some of the sites were currently
occupied did not remove them from the real estate market. The city made a good faith effort to identify
appropriate sites including providing detailed information on each site.
That was sufficient to make the 3 sites reasonably available. As to whether the three sites identified
fulfill the city’s obligation under Renton is a separate question
requiring the court to weigh several factors including the ratio of
available land to total land, the number of existing AEFs and the demand
for AEFs. With 3 available sites
and only one applicant for an AEF permit, the court concluded that three
was sufficient. In addition,
in comparing the demand for sites and the number of available sites,
one can expand the number of available sites to all sites since the
plaintiff can choose from any one site that would then prevent other
AEFs from opening. Another consideration in determining whether the number of sites
is reasonable is whether existing AEFs will be able to relocate. In this case there was no relocation problem
and therefore no need to expand the number of available sites to meet
the relocation and new demand needs. [ix] D.H.L. Associates,
Inc. v. O’Gorman[117]
In 1987, the town adopted an AEF ordinance
limiting AEFs to a zoning district that never existed. In 1992, DHL sought an alcoholic beverage license
and a live entertainment license. The
permits were issued. In 1994,
DHL wanted to present nude dancing.
After several town meetings where substantial local opposition
was voiced, the town amended its zoning ordinance to allow AEFs on two
parcels of land, neither of which was owned by DHL.
DHL presented nude dancing for two years claiming it could do
so under its existing permits. It
also sued the town seeking to invalidate the ordinance.
After the suit was filed, but before it was heard, the town amended
its ordinance to increase the size of the AEF zone from 2 parcels to
some 10.4 acres. The district
court only reviewed the amended ordinance and found that it met the
Renton requirements. Because DHL was allowed to continue
nude dancing an argument was made that the case was not ripe for review. The town, however, claimed that as soon as
the litigation was final it would seek to enjoin further nude dancing. That threat of injury was sufficient to make
the case ripe for review. Likewise,
the court did not deal with the constitutionality of the earlier AEF
ordinances because the issues were moot.
DHL had not suffered any injury or damages from those now-repealed
ordinances since it had been allowed to operate as a nude dancing facility. Thus, the court only looked at the most recent
AEF ordinance that greatly expanded the area where AEFs could locate. The town’s AEF ordinance requires an
applicant to seek a discretionary permit.
Since the plaintiff had not sought a permit the issue of prior
restraint was not before the court.
Yet the court, in dicta, clearly indicated that such a permit
requirement was a prior restraint, subject to the Freedman-FW/PBS limitations. There was a claim that the ordinance was adopted
without any reference to the secondary effects of AEFs. The timing of the ordinance might show that
the town was interested in prohibiting nude dancing, not minimizing
the secondary effects. The court,
however, believed that the evidence proffered by town officials showed
an interest in preventing or minimizing the secondary effects of AEFs. Under a minimal scrutiny of the district court’s
finding, the appellate court would not reverse. In reviewing the reasonable alternative
avenues of communication requirement the court was faced with an allegation
that the allowed district only encompassed less than 1% of the total
land area of the town. While
that small a percentage of available land is a factor, it is not determinative. Instead, the court applied the multi-factor
analysis used in the other circuits.
One important factor that the court weighed was the rural nature
of the town and the fact that most of the town’s area was unsuitable
and not desired for commercial use.
There was evidence that 5 lots were available within the allowed
zone and that was sufficient. The
court also noted that testimony from the owner of the 5 lots showed
that the lots were on the market to be sold, if the price was right.
Under the equal footing approach, the claim by DHL that the owner
was charging too high a price was irrelevant.
In addition, the lots had the necessary infrastructure to support
a commercial use. Thus, the
ordinance was upheld, albeit with the caveat that the discretionary
permit requirement would have to provide for a quick decision and an
equally short period of time for judicial review. [x] Ward v. County
of Orange[118]
Plaintiff operated a “swimsuit club”
where the activities were alleged to be either lewd dancing or social
dancing depending on whether you read the affidavits of the owner or
the county. Plaintiff had never sought an AEF permit from
the county since he believed he did not meet the definition of an AEF
as specified in the county zoning ordinance.
Plaintiff sought to have the AEF ordinance declared unconstitutional
per se and as applied. The county,
for its part, had never sought to close down the plaintiff’s operations
or bring an enforcement action under its zoning ordinance. The court found the ordinance constitutional
on its face under Renton. The ordinance is a clear time, place
and manner, content-neutral effort designed to rid the county of the
secondary effects of AEFs. Plaintiff
also argued that the ordinance shifts to the AEF operator the burden
of proof on the issue of whether the predominant business or attraction
of the establishment is not intended to provide sexual stimulation or
gratification. One of the Freedman
safeguards for prior restraints is that the burden of proof must be
on the state to show that the film or publication is not protected by
the First Amendment. As interpreted
by FW/PBS,
however, some of the procedural safeguards only apply to film censorship
regulations, not general business licensing decisions. The Eleventh Circuit, for example, has interpreted
Freedman
to only require access to speedy judicial review in licensing cases
as opposed to requiring access to a speedy judicial decision.[119] Continuing that distinction, the 11th
Circuit finds that the shifting of the burden of proof to the license
applicant to show that the proposed business operation is not an AEF
under the ordinance did not violate Freedman.[120] Having stripped away two of the three Freedman
procedural safeguards, I would not be surprised if Freedman itself is ignored
or overruled insofar as the licensing schemes for AEFs are concerned.
[121] The as-applied constitutional claims are remanded
for a determination as to whether they are ripe for review, given the
fact that the City has not sought to shut the plaintiff down, nor apply
the AEF ordinance to it. The
11th Circuit wanted the district court to determine if there
was a county procedure allowing the plaintiff to seek a determination
that no AEF permit should be sought.
If no such procedure existed, the as applied attack would not
be ripe for judicial review. [xi] Nightclub Management,
Ltd. v. City of Cannon Falls[122]
In another Freedman type case, plaintiff
sought to invalidate various portions of the city’s AEF licensing ordinance.
The AEF had been a pre-existing use outside of the city’s territorial
limits at the time the city sought to annex the area where it was located.
Prior to annexation, the city engaged in various studies showing
the negative secondary effects of AEFs.
At that time there were no AEFs within the city.
Simultaneous with the enactment of the AEF ordinance, the city
adopted a public nudity ordinance making the showing of human genitals
or buttocks illegal, except as part of any theatrical production performed
in a theater. The licensing
provisions require the AEF operator to submit an application to the
city that has 30 days to review the application.
A denial decision may be appealed to the city council within
10 days of that denial and the decision is stayed pending the city council’s
disposition of the appeal. Plaintiff alleged that the AEF ordinance
was content-based since it was based in part on a study conducted by
a private organization that allegedly was devoted to the suppression
of sexually explicit speech and conduct.
Citing Erie the court found that the motive of the city council in
enacting the AEF ordinance is irrelevant to the constitutional question.[123]
Thus the AEF ordinance is a content-neutral time, place and manner regulation. The plaintiff then argued that the
ordinance acted as a prior restraint due to the discretionary decision-making
power of the city official and the lack of prompt judicial review under
Freedman. As to the first prong of Freedman,
namely the decision-making process must be of a specified brief duration,
plaintiff argued that because there was no time limit on how long the
city council could deliberate on an appeal, the ordinance violated Freedman. But the ordinance is valid under Freedman
because of the stay provision. While
the ordinance is unclear as to whether a new AEF operator can open its
business after its application for an initial permit is denied, the
court found that the stay provision would necessarily allow the operator
to open. Thus, the only period of time where there is
a prior restraint is the 30 day period given the city official to render
the initial decision. That is
a sufficiently short and specific period to satisfy Freedman. The court acknowledged the split in
the federal courts regarding the issue of whether judicial access or
judicial resolution is required under the second prong of Freedman.[124] Agreeing with the 4th, 6th
and 9th Circuits, and disagreeing with the 5th,
7th and 11th Circuits, the court found that access
to a judicial forum is a worthless safeguard.
The court criticized those circuits that have found access sufficient
as based on an inference from Justice O’Connor’s holding in FW/PBS, that is unwarranted
because of the Supreme Court’s continued reliance on Freedman. Under the AEF ordinance, the denial decision
is stayed only until the city council renders a decision. After that, judicial appeals are governed by
general statutes that at a minimum require at least 8 months after the
filing of a petition for a writ of certiorari before a judicial decision
will be rendered. That is too
long under Freedman. While the ordinance contained a severability
provision, the court invalidated all parts of the ordinance dealing
with the licensing scheme since they were all tainted by the lack of
prompt judicial decision making. Other
portions of the AEF ordinance were upheld. Relying largely on Erie
the court found that the separately enacted public nudity ordinance
was constitutional. It found
that the ordinance was not overbroad, in large part because of the exception
provided for nudity in certain types of theatrical productions.[125] The court reviewed the impact of Erie
on Barnes
but found that since neither decision was accompanied by a majority
opinion, the Souter concurring opinion in Barnes would continue to serve as the rationale
for reviewing public nudity ordinances. Thus the court applied the O’Brien test to this ordinance and found
that it met all of the requirements including the fact that the requirement
that pasties or G-strings be used was a minimal restriction on speech
designed to achieve an important governmental interest.
As such the public nudity ordinance was upheld. [xii] T Backs Club, Inc. v. Seaton[126] Plaintiff operated an AEF that had
a liquor and city business license.
The AEF offered erotic, but not totally nude, dancing. Plaintiff then built a wall within the building and sought a separate
business license. That part
of the operation did not serve alcoholic beverages. It did, however, provide totally nude dancing. Eventually the City revoked the restaurant
and business permit it had issued for the new business. Plaintiff then filed this action seeking a
preliminary injunction barring the city for revoking its licenses for
the new operation and facially challenging various state statutes imposing
licensing requirements on AEFs. The court, at this stage of the litigation,
found that plaintiff had not established standing to challenge the validity
of the licensing provisions that seem to raise Freedman questions. Even though the city did not raise the standing
issue, the court on its own motion determined that plaintiffs alleged
injury was caused by the application of the state licensing provisions. The court in dicta did find that the statutory
spacing requirement of 1000 feet from various types of uses was not
facially invalid.[127] As to the invalidity of the city ordinance,
the court faced an ordinance dealing with revocation of city licenses
that was not specifically targeted at AEFs. Plaintiff argued that the ordinance violated the Freedman
requirement of providing prompt access to judicial relief from an adverse
licensing decision. But the
court found that the license revocation decision had nothing to do with
any asserted First Amendment right of the plaintiff.
It was clear that plaintiff was operating without one of the
required permits since it was serving food.
The city’s revocation decision on the other permits were based
on the fact that plaintiff had not received the public health permit.
Without further evidence that the decision was made to suppress
the free speech rights of the plaintiff, the court held that plaintiff
had not shown a substantial likelihood of winning on the merits and
therefore denied the preliminary injunction. [xiii] Nightclubs,
Inc. v. City of Paducah[128] Plaintiff has operated an AEF at the
same location since 1987. In
1998, the city enacted an AEF ordinance.
The ordinance imposed a licensing requirement on AEFs as well
as licensing requirements on employees that required employee fingerprints,
social security numbers, disclosure of various offenses within 3 years
of the date of application and a description of the type of activity
that the employee will be undertaking.
The ordinance required the city to approve or deny the license
application within 10 business days after receipt.
A speedy review procedure was provided so that the legislative
body would have to render a decision within 15 days of it receiving
the appeal. The ordinance also
provided that there is a right to seek prompt judicial review of the
city’s decision and hortatorily required the court to promptly review
the petition. Plaintiff filed this action claiming
that the ordinance violated the required
Freedman
safeguards. The court followed
the general rule that prior restraints are presumptively invalid and
the city has a heavy burden to overcome that presumption.
While the ordinance does have a 10 day period of time in which
the city is to approve or reject the permit, the ordinance also requires
the AEF to pass a number of city inspections.
There are no time limits on when these inspections are to take
place. The ordinance does not require the city to
issue the permit if the inspections are not completed within the 10
day period. There are also
mandatory conditions that appear to require actions before the application
can be filed. Again, there are
no limits on when these conditions requiring city actions or approvals
will take place. There is also no stay provision in the ordinance
so that the status quo will not be preserved pending the outcome of
the decision. Thus the first
prong of Freedman
was found to be violated by the ordinance. The court went on to find that notwithstanding
the hortatory statements regarding judicial review, state statutes do
not provide for expedited review of city decisions affecting AEF licenses.
There is no requirement that the city provide the required transcripts
for review of administrative decisions.
In addition, the 6th Circuit requires not only prompt
judicial access, but prompt judicial adjudication of these cases.
Again there is nothing in Kentucky law that would require a judge
to move quickly in reviewing this type of case.
The judge agreed with the reasoning of the court in Nightclub Management that prompt access to
judicial review is a meaningless right,
Citing the famous umpire Bill Klem, “It ain’t nothin’ till I
call it,” until a judicial officer renders a decision the problem of
prior restraints remain unsolved. Thus,
the court found the ordinance violated the second prong of the Freedman test. [xiv] People v. Studio
20, Inc.[129] Under Illinois state law as applicable
to counties, no AEF can be located within 1000 feet of the property
boundary of a place of religious worship.[130] The issue in this case is how the distance
is to be measured. The AEF was
to be located on leased land that was part of a larger parcel, labeled
by the court as the facility parcel.
The closet distance between the boundary line of the church parcel
and the boundary line of the facility parcel was 955.13 feet.
There was a dispute as to whether the lease merely covered the
building, that was not located within 1000 feet of the church, or the
entire facility parcel. Under
the terms of the lease, the leased premises were defined as the building. Yet it was expected that patrons of the AEF would have to park somewhere
on the facility parcel in order to have access to the building. In interpreting the statute, the court noted
that its primary purpose is to prevent AEFs from locating close to churches.
Having a certain rule, namely that measurement is to take place
from property line boundary to property line boundary will achieve that
objective better than an ambiguous rule of facility to facility or facility
to property line. The property
line to property line rule maximizes the protection afforded religious
facilities. A dissenting justice
asserted that the statute was designed to keep offending AEFs a minimum
distance from churches. Therefore,
one has to look at the facility, not the property line of the premises
where the facility is located in order to carry out the intent of the
legislature. [xv] McKillop v.
Onslow County[131] In prior litigation, the County’s AEF ordinance had been upheld against
a First Amendment challenge. McKillop continued to operate her AEF in
violation of the ordinance and a court order.
In this case the county moved for an order to show cause why
the owner should not be held in civil contempt for failing to comply
with the prior court order. The
AEF operator had shut down her business in response to the court order,
but then opened up another facility adjacent to the site of the original
AEF. An undercover law enforcement official testified that defendant’s
activities were in clear violation of the county’s AEF ordinance. The trial court held plaintiff in contempt
for her willful failure to comply with the prior court order. The court found that intent is required to
support a contempt citation, but that the evidence clearly showed that
the owner had the requisite intent to flout the court’s prior order. The fact that McKillop asserted her 5th
Amendment rights in the hearing does not prevent the court from inferring
her guilt in a civil proceeding. [xvi] City of New
York v. “The Black Garter”[132] Under New York City’s AEF ordinance,
AEFs are not allowed in certain manufacturing districts where residences
are allowed as of right as with a discretionary permit. The AEF owner had operated the business in such a manufacturing
district for over 25 years. The
city sought to shut down the AEF under its nuisance abatement law, since
it was allegedly operating in a district where it was not authorized
to be. Applying the hoary canon of construction that
zoning ordinances are to be narrowly construed against the municipality,
the court interpreted the ordinance in favor of the property owner. While the zoning ordinance allowed residential
uses in the manufacturing district applicable to where the AEF is located,
under the terms of the ordinance, residential uses are only allowed
where they would have no adverse impact on existing commercial or manufacturing
uses. If the city allowed residential
uses, it would have an obvious adverse impact on the AEF that has operated
on the same site for 25 years. Since
residential uses could not be approved there is no violation of the
ordinance and therefore no right to claim that a nuisance existed by
virtue of such a violation. [xvii] Harkins v.
Greenville County[133] In 1995, the county enacted an AEF
ordinance limiting AEFs to certain zoning districts and imposing a permit
requirement on their operation. Plaintiffs
alleged that there were only 4-5 sites within the county for AEFs to
locate. The county’s evidence
showed that there were 14 sites. The
permit decision had to be made within 30 days of the application unless
one of seven listed conditions existed.
There was nothing in the ordinance dealing with the issue of
judicial review. Plaintiffs operate several AEFs, none of which
are located in an appropriate zone.
They were sent a notice of violation from the county and told
to remove their businesses from their present locations within one year. After the year amortization period passed,
the plaintiffs challenged the constitutionality of the ordinance as
applied to them. The court agreed with the plaintiffs’
argument that the permit or licensing scheme imposed a system of prior
restraints. Relying of FW/PBS
rather than Freedman,
the court analyzed the dual requirements of having the permit decision
rendered within a specified and reasonable time period during which
the status quo was maintained and providing for the possibility of prompt
judicial review. The court found that the initial decision
by the county official had to be made within a 30 day period and that
was sufficient. In order to
seek judicial review of such decisions, however, South Carolina law
required the applicant to exhaust all of her administrative remedies.
The record did not contain how such decisions were to be administratively
appealed and whether those appellate decisions were similarly time-constrained.
The plaintiffs, however, bore the burden of proof on this issue
and since it was their failure to include all of the ordinances in the
record, the court found in favor of the county on this issue. The court analyzed the split in the
circuits regarding whether the prompt access to judicial review meant
merely access or resolution. The
court agreed with the Fourth, Sixth and Ninth Circuits that only requiring
prompt access makes this safeguard meaningless.
Judicial review is not the filing of the lawsuit, but its resolution.
Because there is no guarantee that a judicial hearing will be
held within any prescribed period of time, much less that a decision
will be rendered within any period of time, the court invalidated the
licensing provisions of the ordinance. The court found that there were reasonable
alternative avenues of communication left open for AEFs after it made
a saving interpretation of the ordinance.
The ordinance prohibited the location of an AEF outside of the
designated S-1 district. That
was the basis for the plaintiffs’ claim that there were only 4-5 sites. The court, however, interpreted the provision
as not excluding AEFs from the unzoned areas of the county. That supported the trial court’s factual finding
that there were 9 available sites for the 6 existing AEFs. Under Renton, that was a sufficient number. The court warned counties when they adopt AEF
ordinances that they need to tailor their ordinances to their individual
needs. [xviii] P.M. Realty
& Investments, Inc. v. City of Tampa[134] P.M. began operating an AEF that served
alcoholic beverages in a section of the city where nightclubs and other
drinking establishments were commonplace.
They never sought a special use permit required to open and operate
an AEF. The city sought a temporary
injunction seeking to shut down the AEF.
The district court granted the injunction. Where the city alleged that the zoning ordinance has been violated,
the court may presume that irreparable harm has occurred. The court held that under the city ordinance,
P.M. was required to get the type of special use permit applicable to
uses that could have adverse effects on adjacent properties without
the inclusion of specialized conditions.
P.M. also argued that the ordinance failed to have the Freedman
safeguard of prompt administrative and judicial review of the permit
decision. Under the terms of
the ordinance the city must review the SUP application within a 30 day
period. A subsequent appeal to the city council must
be decided within 45 days. Judicial
review would be governed by the state statutes dealing with review of
municipal zoning decisions. This
court accepted the view of Freedman
where access to judicial review is sufficient to satisfy the First Amendment.
The court has no problem finding that the zoning restrictions
on AEFs are consistent with the Renton
standards. The trial court
apparently made on-site visits to the list of available sites to see
that they were truly acceptable under Renton. The fact that
other bars and nightclubs in the area did not have to get a SUP would
not support an equal protection claim.
Finally, the court found no regulatory taking because some 38
other uses of the parcel were allowed by the zoning ordinance. [xix] Wise Enterprises,
Inc. v. Unified Government of Athens-Clarke County[135] In November 1997, the county amended
its AEF ordinance prohibiting the issuance of an AEF license if the
AEF is operating in a designated Central Business District (CBD). The ordinance also prohibited the holder of
an AEF licenses from serving or selling alcoholic beverages on the premises.
Plaintiffs were all AEF operators who sought AEF and/or liquor
sales licenses from the county. The permits were denied and plaintiffs challenged
the validity of the 1997 amendments. The plaintiff argued that the prohibition
against the sale of alcohol at an AEF is the regulation of protected
expression, thereby requiring the court to apply heightened scrutiny.
The court disagreed, however, finding that the appropriate level
of scrutiny for this content-neutral ordinance is the intermediate level
O’Brien test.[136] The mixture of alcohol and nude dancing involve
independent elements of expression and conduct. The court cited the Erie case as supporting its
conclusion that the O’Brien test should bed applied. The court easily found that the challenged
regulation furthered a legitimate governmental interest. The minutes of the public hearing and the preamble
to the ordinance showed that the county was concerned with the secondary
effects of AEFs that serve alcohol.
The court found that the regulation was unrelated to the suppression
of free expression and went no further than was necessary to achieve
the objective of minimizing the secondary effects.
The court also found that the prohibition against AEFs in the
CBD was supported by Renton, since AEFs were still allowed in several other locations
outside the CBD. [xx] Bugsy’s, Inc.
v. City of Myrtle Beach[137] Plaintiff operated a sports bar and
restaurant that also contained a separate video poker room. Under the city’s zoning ordinance video poker
machines were allowed as a principal use in seven zoning districts. In a number of other districts, including the
one where plaintiff’s business is located,
they are allowed only as accessory uses. Plaintiff admitted that 95% of its gross sales per month came from
the video poker machines. The
zoning ordinance defined an accessory use as one that is subordinate
to the principal use in area, extent or purpose and that is designed
for the comfort, convenience or necessity of the occupants of the primary
use. There was a specific reference to coin-operated
amusement devices as accessory uses in restaurants and bars. There was no factual dispute that plaintiff’s
video poker business did not comply with the performance standards set
forth in the ordinance for accessory uses.
The ordinance further provided for a two-year amortizaiton period
for non-conforming businesses. Plaintiff argued that local control
over video poker had been preempted by state statute. While the state statute prohibits certain types of local regulation
of video poker operations, it does not occupy the field of regulation.
A city may not limit the number of video poker machines within
city limits, but there was not preemption of locational requirements
on those machines. The court
found that there was no preemption by occupation of the field.
The plaintiff also argued that the ordinance was in direct conflict
with two state statutes, one dealing with the licensing of businesses
where video poker machines were allowed and the second dealing with
video arcades. Again there is no conflict since the city’s zoning ordinance merely
affected the siting of such machines and not with their licensing. The court did not deal with plaintiff’s
vested right argument since it was not properly preserved for appeal.
Obviously, an ad hoc analysis would have to be made to see if
the two year amortization period was reasonable.
The burden of proof on the reasonableness of the period is on
the party attacking the validity of the ordinance.
Since the machines were rented, the court determined that a two
year period to recoup the rental costs of the machines that were valued
at around $ 7500 was reasonable. [xxi] Aguirre v.
State[138] It is reasonably rare to report a criminal
case in this annual review, but this decision by the Texas Court of
Criminal Appeals clearly effects many AEF ordinances. An El Paso AEF ordinance made it a misdemeanor to “own, operate
or conduct any business in an adult bookstore, adult motion picture
theater or nude live entertainment club” within 1000 feet of various
uses. City inspectors cited the owners and employees
of an AEF that they claimed was located within 1000 feet of a parochial
school. The municipal court
convicted all of the defendants and fined them $ 500.00. The issue on appeal is whether the ordinance
required the prosecution to allege and prove a culpable mental state
as a prerequisite to a conviction.[139] Under Penal Code § 6.02 all crimes
require the state to prove that the person acted intentionally, knowingly,
recklessly or with criminal negligence unless in the definition of the
offense the language plainly disposes of any mens rea element. This section is applicable to municipal ordinances.
Thus, unless the language of the El Paso AEF ordinance plainly
disposed of a mens rea requirement, one will exist even where the statute
is silent. Rarely does a legislature
speak plainly on the creation of strict liability criminal offenses.
The Penal Code requires that where there is any doubt the mens
rea requirement attaches. Applying
the statutory canon of construction to the facts, however, is not either. The court noted that strict liability offenses are rarely criminal.
The fact that a person is faced with potential criminal liability
requires a court to rarely find strict liability crimes.
The court looked to see whether the AEF ordinance expressed in
certain provisions an intent to require a mens rea element.
If it then omitted that language in another provision, it would
be evidence of legislative intent to make that second provision a strict
liability crime. The court also examined whether the AEF ordinance
is similar to the types of regulations that dispense with the intent
element, such as public health matters.
In looking at a number of factors, the court concluded that El
Paso had not plainly stated its intent to make a violation of its AEF
ordinance a strict liability offense.
The court noted that the ordinance applied not only to the owner,
but also to the employees who would not be in a position to know or
even to inquire about whether the AEF was violating the city’s zoning
ordinance. [xxii] State v. Russo[140] In a second criminal prosecution, the
court was not concerned as the Texas Court of Criminal Appeals was with
the mens rea requirement for violating an AEF ordinance, but was concerned
with the more typical Renton and Freedman challenges. Defendants started to operate an AEF in a commercial
zone in apparent violation of a traditional Renton-type scatter-site
AEF zoning ordinance. In addition,
the AEF ordinance required all AEFs to be surrounded by a 50 foot perimeter
buffer consisting of plant material approved by the Planning Board. Plaintiffs pleaded guilty and paid substantial
fines, reserving the right to challenge the validity of the ordinance.
The township contained about 5,265 acres of which 32.1 acres
or .52% are available for AEFs. It was alleged that the 50 foot buffer zone
requirement would eliminate much of that acreage from being available. There were 4 existing AEFs in the township
that were not effected by the ordinance because it was specifically
prospective in effect. The court invalidated one of the violations
based on the failure of the defendants to have the required AEF license.
Even though they never sought a license, the defendants have
standing to challenge the licensing provision because of the potential
chilling effect the provision may have on their First Amendment rights.
Relying on state law, rather than Freedman, the court found that since there were essentially
no standards to govern the decision-maker in issuing or denying the
license the licensing provisions were invalid.
The decision-maker must be given “narrow, objective and definite”
standards to avoid invalidation. The court, however, found that the
buffering requirement was valid per se and as applied. The municipal objective of impeding the view
of the interior of the premises served an important governmental interest
of preventing minors and members of the involuntary public from being
exposed to nude dancers. The
ordinance went further by requiring buffering all around the building
even if there were no windows, but the court found that such a requirement
served the governmental objectives of preserving property values, preventing
urban blight and diminishing negative effects on nearby businesses.
The court also rejected the as applied claim finding that there
were sufficient alternative available sites under Renton. While it was true that some of the 32.1 acres
where AEFs were allowed were taken out from the mix, the court considered
that the 4 existing AEFs were allowed to continue operation and when
combined with the remaining acreage met the Renton test. The court also held that several provisions of the AEF ordinance
were not void for vagueness. The court finally held that the New Jersey AEF
statute[141] did
not preempt the township ordinance since it clearly allowed municipalities
to enact more stringent buffer requirements than that provided for by
the statute. [xxiii] Town of Seabrook
v. Vachon Management, Inc.[142]
Defendant leased a portion of a multi-unit building to an AEF
in 1990. In 1991, a town building
inspector discovered that the AEF was conducting live mud and oil wrestling
events on the premises. The
AEF owner was told to upgrade its septic system to deal with the increased
number of persons using the premises.
In 1994, the town enacted an AEF ordinance using the scatter-site
approach. The leased premises could not comply with the
ordinance since they were close to a residence and a church. Several years later, the town received complaints
that the AEF was holding live entertainment, including nude dancing.
The town sought injunctive relief to shut down the nude dancing.
A trial court found that the AEF had antedated the ordinance
and qualified as a NCU. The major issue is whether the pre-1994
activities on the premises constituted a valid NCU. In order to qualify as a NCU, the use must
lawfully exist at the time the restriction is adopted and must continue
to operate as a NCU following the adoption of the ordinance. The owner of the NCU has the burden of proof to show that the current
use is neither new nor impermissible because of the public policy to
limit the extension or enlargement of NCUs.
While the mud and oil wrestling activities antedated the 1994
it was not a valid preexisting use because the owner had never sought
site plan review. Under the
town’s zoning regulations when a use converts from one allowed use to
another it must get site plan approval.
In this case, when the prior use of the leased premises as a
computer repair store was changed to a mud wrestling arena, the owners
were obligated to get site plan approval.
In addition, the present use of the premises for nude dancing
would constitute an expansion of the NCU from its prior wrestling format.
Defendants also argued that the town
should be estopped from enforcing its zoning ordinance because it granted
them amusement licenses after 1994.
New Hampshire recognizes that estoppel against the government
should not be favored because it may injure the public interest.
The court found that defendants had not met their burden of proof
to show that the granting of one-year licenses for the operation of
amusement booths was the equivalent of an affirmative representation
that defendants would be allowed to continue live nude dancing. Finally, the court rejected the claim that the town should be barred
by the equitable doctrine of laches from seeking to enforce its site
plan requirements. As with estoppel,
courts do not easily allow governments to be prohibited from enforcing
their ordinances merely because they have delayed in bringing that enforcement
action. Laches should not be
applied to parties who come in with unclean hands, such as the defendants
who knowingly violated the site plan approval requirements in 1992. [xxiv] City of New
York v. Warehouse on the Block, Ltd.[143] The city sought to shut down the defendant’s
alleged AEF operation under its Nuisance Abatement Law. The AEF ordinance defined an AEF as a commercial
establishment where a substantial portion of the AEF included an adult
book store. An adult book store
is defined as one having a substantial portion of its stock in trade
depicting or describing sexual activities or specified anatomical areas. The defendant’s operation was not located in
an area where AEFs were allowed. Inspectors
for the city found that 64% of the total floor space was allocated for
non-adult material. The guidelines
used by the city use a 60-40 ratio to determine if the establishment
is an AEF. The city argued,
however, that the non-adult material was merely a sham for the adult
books being sold. But the court
found that the city’s guidelines limited administrative discretion to
the 60-40 ratio without allowing for the consideration of other factors
such as sales totals or sham transactions.[144] The defendant could not be judged on the basis
of revised guidelines adopted in response to a Court of Appeals decision
limiting the prior guidelines to the floor space ratio factor. The revised guidelines specifically add a sham
compliance factor. The city
would have to give AEFs notice and an opportunity to come into compliance
with the new guidelines before bringing an action to shut them down
as nuisances. [xxv] T & A’s,
Inc. v. Town Board of the Town of Ramapo[145] Plaintiff operated the only AEF in
the town, opening for business in 1990.
Under New York law, no alcoholic beverages are served and there
is only a limited food operation. The
AEF was located in a rural area, largely inhabited by members of an
orthodox Jewish sect, known as Chasidim.
They voiced objections to the town regarding the operation of
the AEF. In 1997, the town enacted an AEF ordinance
after conducting a study on the secondary effects of AEFs. The ordinance used the scatter-site approach
for zoning AEFs and required them to meet the parking requirements for
restaurants. AEFs that are non-conforming
had one year to relocate, subject to an extension period should they
show that they needed more time to amortize their investment-backed
expectations. The ordinance
was unclear as to whether AEFs were permitted or conditional uses in
the single commercial zone they were allowed in.
If they were conditional uses they would have to apply to the
Planning Board for a CUP and meet several standards including being
in harmony with the development in the district, not be a hindrance
to development of adjacent land and not be detrimental to the site or
adjacent properties. The court found that the ambiguity in classifying
AEFs made it virtually certain that the AEF owner would not have the
benefit of objective criteria in the issuance of a permit, but would
be subject to the unbridled discretion of the planning board. There was some dispute as to the number
of alternative available sites. The
town encompassed some 31,040 acres.
The commercial zone where AEFs were allowed included only 2.1%
of the developable land. The
scatter-site requirements further reduced the potentially available
land to only 0.6%. The actual amount of available land may be
even less. Interestingly the
town in its determination that 9 sites were available used a building
to building measurement criteria, while the AEF owner argued that a
lot-line to lot-line criteria should be used, leaving only 2 available
sites. Since the town used the lot-line measurement
technique for other zoning issues, the court found that the town’s evidence
was not persuasive. In fact,
the court concluded that there were probably no suitable locations for
an AEF providing live entertainment within the town.
While the AEF operator asserted that
the ordinance was not content-neutral since it was triggered by a request
by local residents who objected to having nude dancing in their neighborhood,
the court found that the ordinance satisfied the Renton test for content-neutral
ordinances. The primary purpose
of the ordinance was to prevent the negative secondary effects of AEFs
as stated in the preamble to the ordinance.
The town could rely on studies showing those effects in other
communities. The court would
not second-guess the town and re-examine its motives. The court, however, found that the
ordinance as applied vested too much discretion in the planning board
to satisfy the requirements for prior restraints.
Since CUPs could be denied based on the board’s views on health,
safety, comfort and convenience or any other appropriate standard, the
ordinance was too vague so as to allow for the board to exercise that
power to discriminate based on the content or viewpoint of speech.
The ordinance needed to have assigned AEFs to a particular use
group so that they would not fall within the conditional use category
that gave overly broad discretion to the board to deny the permit. The court also found that the ordinance violated the Renton
requirement that reasonable alternative avenues of expression remain
available after the ordinance was implemented.
The court placed the burden of proof on this issue on the town
to show an adequate number of potential sites that are part of the community’s
actual business and real estate market.
In determining availability the court may look at such factors
as accessibility to the general public, surrounding infrastructure,
pragmatic likelihood of the space becoming available and whether the
sites are suitable for a commercial establishment.
The court noted that prior cases including Renton had found that at least 4% of total
land area may be sufficient, but the percentage available in this case
was less than 1%. While AEF
owners must fend for themselves in the real estate market, there must
be enough usable and available land so that a real, not an illusory,
market exists. [xxvi] City of Dallas
v. North by West Entertainment, Ltd.[146] An AEF sought a permit to operate a
club as an adult theater under the terms of the Dallas AEF ordinance. The application was denied on the basis that
it was located within 1000 feet of another AEF. The AEF sought a location restriction variance that was denied.
Judicial review was sought including a request to enjoin the
city from enforcing its AEF ordinance against it.
The trial court granted the AEFs temporary injunction.
The city appealed the injunction by filing a notice of appeal.
The issue in this case related to whether the filing of the notice
of appeal automatically suspended the enforcement of the temporary injunction
order. The court found that
under Texas Rule of Appellate Procedure 29, the filing of the notice
of appeal did supersede the order because home rule entities do not
have to file a supersedeas or cost bond.
Thus the city’s action superseded the order granting the temporary
injunction. [xxvii] Kismet Investors,
Inc. v. County of Benton[147] Plaintiff operated an AEF. In previous litigation, the county’s attempt
to require it to get a CUP was overturned because it granted too much
discretion to the county to satisfy the First Amendment. That led to the county’s enactment of an AEF
ordinance that restricted AEFs to 4 zoning districts and imposed a scatter-site
requirement. The ordinance provided
a 4 year amortization period for NCUs.
Plaintiff sought a variance shortly before the end of the amortization
period. At the public hearing,
plaintiff proffered evidence of making substantial improvements to the
building that were only beneficial if it remained an AEF. The variance was denied. The scope of judicial review of a variance
decision is limited to see whether it was reasonable. Appellate court review looks at the record
before the county, not the record before the trial court. Under Minnesota law, a variance may only be
granted upon a showing of practical difficulties or particular hardship. Hardship is defined as whether the property
can be put to a reasonable use absent the variance and whether the landowner’s
plight is caused by unique circumstances, not self-imposed by the owner. Plaintiff bore the heavy burden to show that
the variance was justified. The
variance here was not a use variance since the zoning ordinance allowed
such uses, the variance was caused by the application of the AEF ordinance. The court found that the statute created separate
standards for area and use variances. Area variances may be issued upon
a showing of practical difficulties while use variances require the
more stringent standard of particular hardship.
Nonetheless, the court found that the county’s decision not finding
practical difficulties was reasonable.
There were other reasonable uses for the property, including
a restaurant or resort use. The
investment made by the AEF owner was self-imposed and did not create
a building that was so unique that it only had one economically viable
use. There was also no showing that the parcel
was unique. On the First Amendment issue the court
placed the burden of proof on the county. The court had no difficulty finding that the ordinance was content-neutral
and aimed at the secondary effects of AEFs. Studies from other cities were reviewed prior
to the adoption of the ordinance. The
county did not have to make specific findings regarding secondary effects
in the county or from this particular AEF in order to meet the Renton
standard. The court rejected
the Alameda Books
interpretation of Renton that required a more exacting analysis
to determine whether the ordinance is truly aimed at secondary effects.
The court reviewed the evidence regarding the number of available
alternative sites. It concurred with the county that a building-to-building
method, rather than a lot-line-to-lot-line method be used to determine
the number of sites. The county
established that there were over 100 available sites where plaintiff’s
AEF could be relocated. That
clearly met the Renton
standard of having a reasonable opportunity for AEF owners to locate
their operations within the community. [xviii] St. Louis County
v. B.A.P., Inc.[148] BAP operated a business where 20% of
their merchandise was considered adult-oriented products. The business was located within 1000 feet of
a church. The ordinance defined
an AEF as one where 25% or more of the retail value of the merchandise
offered for sale consists of adult material.
In previous litigation, the court had upheld the constitutionality
of the ordinance after the county had received preliminary injunctive
relief ordering BAP to shut down.[149] In this action the county was seeking to cite
BAP for contempt of court since it did not stop selling adult material.
The trial court refused to hold BAP in contempt since it was
selling less than 25% adult-themed material.
The county argued that the 25% figure in the ordinance merely
created a rebuttable presumption and that upon specific proof, businesses
could be found to be AEFs with less than 25% of their sales of adult
material. The ordinance further
defined an AEF as one where a substantial portion of the merchandise
offered for sale are adult-themed.
The court found that the 25% figure was not determinative. A business could be an AEF even if its sales
or merchandise fell below the 25% figure if a substantial portion of
their business dealt with adult material.
Since the trial court had applied the 25% figure as the final
word, the court remanded the case back to determine whether BAP was
in violation of either the ordinance or the injunction. [xxix] City of New
York v. Les Hommes[150] Under administrative guidelines promulgated
by the city an adult establishment is defined in terms of a “substantial
portion” of the business must involve some type of adult material.
In the case of a book store as was involved here the substantial
portion had to be of its “stock-in-trade.”
The guidelines further provide that several factors shall be
considered including the amount of such sock accessible to customers
as compared to the total stock, the amount of floor area and cellar
space accessible to customers containing adult material and the amount
of floor space for adult stock as compared to the total floor space
available for all stock. A
subsequent addition to the guidelines said that if at least 40% of the
floor and cellar area is available for adult use that will meet the
substantial portion requirement. In
addition, if more than 10,000 square feet of a commercial establishment
is occupied by an adult use that establishment is deemed to be an AEF
regardless of its total size. At the trial in this size the city
was only able to prove that 24% of the stock consisted of adult videos. The trial court nonetheless concluded that
Les Hommes was an AEF. It went
behind the numbers and found that compliance with the 60:40 guideline
was, in essence, a ruse or fraud, since the non-adult stock did not
turn over. The court found that under the guidelines
the definition of stock does not account for what is actually being
sold. Thus the fact that the non-adult stock was
not selling as quickly as the adult stock could not be used to label
the operation an AEF. The court
applied a plain meaning approach to the guidelines and refused to allow
the city or the trial court to embellish that plain meaning.
The non-adult stock was accessible and available and therefore
had to be counted in determining whether this was an AEF. The good or bad faith of the AEF owner was irrelevant as long as
it complied with the floor space requirements. [xxx] West End Pink,
Ltd. v. City of Irving[151] A city ordinance limits the sale of alcoholic beverages at restaurants
to no more than 40% of the annual total sales. Plaintiff operated a restaurant in a zoning
district employing that limit. The
city notified the plaintiff that it was in violation of the ordinance
and threatened to rescind its certificate of occupancy.
Plaintiff challenged the constitutionality of the ordinance saying
that it was preempted by the Texas Alcoholic Beverage Code (TABC). Irving, as a home rule city, has all powers
that are not inconsistent with the constitution or general law. The city cannot regulate in an area preempted
by state statute. The plaintiff
argued that the city ordinance was either in direct conflict with various
provisions of the TABC or was preempted by the state’s occupation of
the field. The city argued that
the enactment of 3 validation statutes by the State Legislature since
the passage of the alcoholic beverage limitation provision cured any
potential defect. While validation statutes can cure statutory
defects, they cannot cure constitutional defects. There was no constitutional claim made in this case. The only basis asserted by the plaintiff was
preemption. Since the Legislature
can cure any preemption claim by express legislation giving cities the
power to act, they can cure the same problem through a validation statute. Thus while several decisions have found local
regulation of liquor licensees preempted, none of those cases dealt
with the impact of a validation statute.[152]
[b] Signs and Billboards [i] Knoeffler v.
Town of Mamakating[153] After a dispute with a neighbor and
the Town, the plaintiff began erecting signs on his home and lawn protesting
various matters. He was served
with a notice of violation of the Town’s sign ordinance. After several attempts he was given a temporary permit to allow
the existing signs, provided that they were removed within 6 weeks. The owner sought federal judicial relief and
while the case was pending the Town amended its sign ordinance requiring
permits for all signs, with several exceptions. One type of exempted sign related to protest signs on matters of
public information and convenience, although there were size and number
restrictions on this type of size.
Plaintiff asserted that both the original and amended sign ordinances
violate his First Amendment free speech rights. As to the original sign ordinance,
residential signs are allowed, but only as temporary signs. The ordinance allowed certain on-site commercial
signs without a permit, but required public information and convenience
signs to get a discretionary permit. Clearly, the original ordinance favored commercial over non-commercial
signs. That constitutes a content-based
regulation and violates the Metromedia and Ladue principles. Clearly the ordinance was not narrowly tailored
to achieve the significant governmental objectives of traffic safety
and aesthetics. Likewise by
giving unbridled discretion to the town to grant or deny the permit,
the original ordinance violated the First Amendment. As to the amended ordinance, it too
is a content-based regulation. While
it required permits for all signs, commercial and non-commercial, it
also created 18 classes of exempted signs.
The bases for most of the exemptions was the content or message
of the sign. There is a strong presumption that content-based
sign regulation is unconstitutional. While some of the opinions in Metromedia accept the notion that certain
types of signs may be treated differently based on content, the Second
Circuit follows the view that any type of content-based regulation must
satisfy the strict scrutiny test.[154] Thus, it too violated the First Amendment rights
of the plaintiff. The plaintiff sought compensatory and
punitive damages against individual Town officials and the Town. As to the building inspector who denied the
permits and issued the citations the court found that he was entitled
to qualified immunity. If his
actions did not violate clearly established statutory or constitutional
rights of which a reasonable person would know, immunity attaches. The court found that, as a matter of law, the building inspector
acted objectively unreasonably and thus was entitled to immunity. Without the individual official the Town cannot
be held liable for punitive damages.[155] Plaintiff’s damages claims against the Town,
however, may be asserted. [ii] Adams Outdoor
Advertising v. City of East Lansing[156] This is a regulatory takings case relating
to the application of a sign ordinance’s amortization provision relating
to rooftop signs. The ordinance
was adopted in 1975 and totally prohibited rooftop signs. The ordinance also required the removal of
nonconforming signs by May 1, 1987.
In litigation commenced at that time, the Michigan Supreme Court
concluded that the city had authority to use amortization provisions
to eliminate nonconforming signs or other uses.[157] On remand the trial court found that the amortization
provision constituted a regulatory taking as to both rooftop and freestanding
signs. The court of appeals
affirmed that finding as to rooftop signs but reversed and remanded
as to freestanding signs. The
city appealed the decision as it affects rooftop signs. Michigan’s approach to regulatory takings
jurisprudence is reasonably straightforward.[158] The court accepted the Agins view that a taking occurs
when the regulations do not substantially advance a legitimate state
interest. Secondly, a taking
occurs under a Lucas
type deprivation of all economically beneficial or productive uses of
the land. Thirdly, a taking
occurs under a Penn Central
type balancing test where the court weighs the character of the government’s
action, the economic effect of the regulation and the interference with
reasonable investment-backed expectations. In this case a preliminary question
has to be resolved before applying the appropriate test. What is the nature of the plaintiff’s property
interest that has allegedly been taken? Adams asserted that it was its
leasehold rights to the rooftop signs.
The court found that a lessor can transfer no greater right to
the lessee than that which is possessed by the lessor. The lessor here did not have a vested right to place a rooftop sign
on its buildings. Whatever right
it had to place a sign there was always subject to reasonable police
power regulation. Likewise,
by structuring the lease to allow only rooftop signs cannot create a
property right not subject to police power regulation.
The leases in question were executed many years after the city’s
sign ordinance went into effect. The
prohibition against rooftop signs clearly did not constitute a Lucas taking. Only one “stick” from the “bundle of sticks”
of property ownership was removed.
No taking occurred under Penn Central as well. All of the factors weigh in favor of the city. The sign ordinance is a reasonable police power
regulation, whose impact on the owner’s property rights is limited and
who interference with investment-bakced expectations is de minimis. Thus, the court found that no regulatory taking
occurred when the ordinance prohibited rooftop signs and required their
removal after a 12 year amortization period. [iii] Lawson v. City
of Kankakee[159] In 1998, the city enacted an ordinance
prohibiting the placement of signs “upon any private or public property
without the consent of its owner or occupant.” Plaintiff and the city were engaged in a dispute
regarding compliance with the city’s building code for one of plaintiff’s
rental units. Eventually the
city placed a sign in front of one of these parcels declaring that the
home was not in compliance with the building code.
Plaintiff responded by placing a sign on an adjacent parcel he
owned attacking the mayor. The
city removed plaintiff’s sign since it was allegedly in an area of the
parcel that the city asserted an ownership interest in.
Plaintiff then filed this suit claiming that his First Amendment
rights had been violated by the removal of his sign and the application
of the ordinance. The court first had to decide who owned
the area where the signs were located.
It determined that the city did own that area after reviewing
the original plats and state law. Thus
the plaintiff would have to show that the ordinance was unconstitutional
on its face or as applied to him to show a likelihood of winning on
the merits. As applied to plaintiff, the ordinance burdens
his speech by preventing him from placing a sign on the area in front
of his parcel that is owned by the city.
The ordinance is content-neutral because it applies to all signs.
The city ordinance is similar to the ordinance approved on in Vincent[160]
based on the city’s need to prevent clutter and visual blight. But in this case, the city did not justify
its prohibition based on visual clutter, especially visual clutter in
these areas owned by the city adjacent to private property. The clearest evidence of that was the city’s placement of its sign
criticizing the plaintiff’s maintenance history on the adjacent parcel.
The ordinance has the effect of requiring consent by the city
before one can place a sign on city property.
There are no guidelines, time limits or procedures for obtaining
that consent. Thus it appears to be violative of the Freedman guidelines for prior
restraints. The fact that the
plaintiff could place his sign on his property that is located only
several feet from the city-owned parcel did not negate the existence
of a First Amendment violation. Finally,
the court found that plaintiff had made a prima facie case of selective
enforcement of the ordinance because of the sign’s political message. Plaintiff was able to show that the city had
not removed signs from other locations on city-owned land even though
the signs had not been placed there with the city’s consent. One witness proffered by the plaintiff was a real estate agent who
testified that he often placed for sale or for rent signs on city-owned
property adjacent to privately owned property and that those signs had
never been confiscated by the city.
Thus, plaintiff’s motion for a preliminary injunction was granted
and he would be able to place his sign on the city-owned strip of land
in front of plaintiff’s parcel. [iv] North Olmsted
Chamber of Commerce v. City of North Olmsted[161] The city enacted a comprehensive sign
ordinance in 1991. Nonconforming
sign owners were given until January 1, 1998 to remove their signs. Upon a showing of hardship the 6-1/2 year amortization
period would be extended an additional 90 days. The city began sending out notices of violations
after the deadline for removal. Plaintiffs
include the chamber of commerce and individual sign owners and sign
sellers. Plaintiffs alleged
that the ordinance violated their First, Fifth and Fourteenth Amendment
rights. They sought to enjoin the city from enforcing the ordinance. The district court was reviewing a
decision of a federal magistrate who had found that the ordinance was
an impermissible prior restraint, an impermissible content-based restriction
of both commercial and non-commercial speech and was substantially overbroad. The court initially determined that the plaintiffs
had standing to challenge the ordinance. In the context of the First Amendment the usual rule that a party
may assert only a violation of its own rights is expanded to allow a
challenge that the regulation is content-based because of the chilling
impact of such a regulation. In
addition, plaintiff had standing to challenge the prior restraints imposed
by the sign ordinance under Freedman
even if the individual plaintiff had not sought a permit or license. The court defined a content-based regulation
as one where the subject-matter of the content conveyed determines whether
the speech if subject to restriction.
The court found that the ordinance contained content-based restrictions
on protected noncommercial speech and thus applied the strict scrutiny
analysis to such restrictions.[162] The city tried to avoid strict scrutiny by
applying the Renton approach. After
all, if one looks at Renton, you have a classic content-based regulation.
Certain types of facilities are regulated based on the content
of what they sell. Yet, the court in Renton found that the ordinance was content-neutral
because it was dealing with the secondary effects. But the court rejected applying the Renton
approach outside of the context of AEFs.
This court rejected the notion that intent or motive of the city
is relevant to determining whether the restriction is content-based. In this case, the ordinance classified signs
by use types and by structural types.
Use type classifications are clearly content based since they
include such classes as real estate signs, directional signs, organizational
signs, identification signs and the like.
In addition, other restrictions on signs in residential districts
are also content-based. The
court used as an example a sign in a residential district that mimicked
a stop sign and said stop gun violence as a sign that would violate
the ordinance. The city was unable to show that its regulation
served a compelling state interest and that it was the least onerous
means to achieve that interest. While
safety and aesthetics are substantial interests after Metromedia they are not compelling
state interests. Even if the
court was willing to equate substantial with compelling, the ordinance
would fail because there were less onerous alternative regulatory schemes
to achieve those interests. The
choice of what type of signs were allowed and not allowed, based on
their message and the various exceptions contained in the ordinance,
showed that the ordinance was not narrowly restricted. The court applied the four-part Central Hudson
test to the content-based restrictions on truthful non-misleading commercial
speech. The key issues were whether the ordinance advance the substantial
governmental interest and whether it was not more extensive than is
necessary to serve that interest. In order to satisfy the requirement of advancing the asserted governmental
interest the court applied the following test: This
burden is not satisfied by mere speculation or conjecture; rather a
governmental body seeking to sustain a restriction on commercial speech
must demonstrate that the harms it recites are real and that its restriction
will in fact alleviate them to a material degree. . . Consequently,
the regulation may not be sustained if it provides only ineffective
or remote support for the government’s purpose. . . We have observed
that this requirement is critical; otherwise a state could with ease
restrict commercial speech in the service of other objectives that could
not themselves justify a burden on commercial expression.[163] The last prong regarding
the not more extensive a regulation than is necessary fits closely in
with the heightened scrutiny under the advancement prong. The court found that several of the restrictions
in the sign ordinance relating to identification signs, temporary signs,
service station signs and multiple use signs did not meet the third
or fourth prongs of the Central Hudson test. For example, a sign
in the shape of an arrow in front a business could say “enter here”
but could not identify the business under the terms of the ordinance. This type of distinction did not advance any
interest in safety or aesthetics and thus could not be sustained. Size regulation of signs is clearly permissible
content-neutral time, place and manner regulation. But size regulations that are tied to the content
of the sign also do not satisfy the Central Hudson test. Once a sign is allowed, why is the content
of the sign related to the governmental interests in safety and aesthetics.
Commercial sign regulations that limit sign size based on what
type of sign it is violated the Central Hudson
test. The court also struck down the pole
sign prohibition contained in the sign ordinance. Because the ordinance exempted a number of pole signs from the prohibition,
the court concluded that the restriction was content-based. Even if the ordinance was interpreted to only
exempt government-owned pole signs, it would still be invalid, since
that exemption does not advance the interests of safety or aesthetics. The pole sign regulation is not saved by an
exemption for political pole signs since the other exemptions in this
provision make it unenforceable as adopted.
The court also found that the ordinance’s
requirement that a sign permit be received for all permanent and temporary
signs over 6 square feet in sign face area constituted an impermissible
prior restraint. The permit
official reviewing the application can consider the design, color, orientation,
visual impact and influence of the proposed sign. Those factors, when combined with the content-based
regulation of various signs, makes the permit system a prior restraint.
Here the court found that there were not sufficiently clear standards
to limit the discretion of the permit-issuing official.
Likewise, the Freedman
safeguards requiring a decision to be made within a brief and defined
period and speedy access to judicial review was not present. Thus the permit requirements of the ordinance were also invalidated.[164] [v] City of Painesville
Building Department v. Dworken & Bernstein Co., L.P.A.[165] The City’s sign ordinance prohibited
the posting of political signs except for certain designated periods
preceding and following general or special elections.
The ordinance defined a political advertising sign as any sign
“concerning any candidate, political party, issue, levy, referendum,
or other matter whatsover eligible to be voted upon . . .” In addition, the ordinance required a permit and payment of a fee
for the placement and use of such signs. The city issued a notice of
violation against a law firm for violating the political sign provisions
of its ordinance. The law firm
attacked the constitutionality of the restrictions. The court noted in general that a narrowly
drawn ordinance may constitutionally impose reasonable time, place and
manner restrictions on the display of temporary signs, including yard
signs posted on public property. The
city sign ordinance, however, did not come close to passing constitutional
muster when it was applied to prohibit the owner of private property
from posting a single political sign on that property outside the durational
period set forth in the ordinance.
The posting of political signs is virtually pure speech given
the highest level of protection afforded by the First Amendment.
The court rhetorically asked itself whether the ordinance was
content-based or content-neutral. If
content-based the applicable strict scrutiny test would universally
require invalidation. If content-neutral, than one of a number of
tests could be applied. The
court never directly answered that question, instead relying on Ladue and its emphasis on the
need to protect political signs. Since
the durational limits in the ordinance only applied to political signage,
it might be hard to argue that the ordinance was content-neutral. But the court applied the narrowly tailored
analysis usually reserved for content-neutral ordinances. The court agreed with the many pre- and post-Ladue
decisions that invalidate durational limits on political signs.[166] Political speech is not only relevant immediately
before an election. The ordinance
went way beyond the limits to achieve the governmental objectives dealing
with safety, aesthetics and traffic concerns. The court suggested that political signs may be regulated as to
matters relating to their construction, the amount of signage allowed
and the need to remove a temporary political sign.
But the type of regulation imposed by the city went too far in
restricting political speech. [vi] Marathon Outdoor
LLC v. Vesconti[167] In June 1999, plaintiff received several
permits to construct a billboard.
The signs were to be accessory building signs as defined by the
city sign ordinance since they would advertise the name of the business
at the location of the sign. The
billboard structure was completed when the city notified the plaintiff
that it intended to rescind the permits because the sign would violate
several performance standards contained in the ordinance.
The city believed that the sign would be an off-site commercial
sign that was prohibited within 200 feet of any arterial highway. Plaintiff then filed this § 1983 action asserting
that the city sign ordinance violated its First and Fourteenth Amendment
rights. While the court found that the plaintiff
might suffer irreparable injury should a preliminary injunction against
enforcement of the ordinance was granted, the court found that plaintiffs
had not shown a substantial likelihood of success on the merits. As to the regulatory takings and equal protection
claims, they were not ripe for review under Hamilton Bank. Plaintiff had not exhausted its administrative
remedies regarding appealing the permit revocation decision.
Even if the equal protection claim was ripe, it would still not
succeed because all that plaintiff alleged was that the city changed
its interpretation of the ordinance to apply certain performance standards
to pole signs or billboards. There were no allegations of selective treatment or enforcement
based on some impermissible consideration.
Without relying on Olech the court required the plaintiff to
prove that the city intended to inhibit the exercise of its constitutional
rights. The plaintiff also claimed that the
prohibition of off-site commercial signage within 200 feet of an arterial
highway violated the First Amendment.
The court agreed with the approach taken in Knoeffler, that the four-part
Central
Hudson test should be applied.
Differentiating between on-site and off-site commercial signs
was consistent with Metromedia. There was
no content-based regulation as the district court had found in North Olmsted.
The restrictions on commercial speech achieved the legitimate
objectives of traffic safety and aesthetics.
The court found the ordinance sufficiently narrowly tailored.
The regulations affecting the physical size and dimensions of
the sign were also upheld as being appropriate time, place and manner
restrictions. § 1.05
Subdivision Regulation [1]
Impact Fees
[a] American Fabricare v. Township of Falls[168] Plaintiff sought to establish a laundromat
business in leased space in a shopping center. The Township would only issue the certificate
of occupancy if plaintiff would pay additional sewer tapping fees due
to the large amount of wastewater discharge from the premises. Plaintiff filed an “omnibus” due process and
equal protection challenge. Initially
the court found that the fees were not ultra vires. Plaintiff had argued that the Township lacked authority to impose
such fees. Under the enabling
act, tapping fees may be charged if they are based on capacity, distribution
or collection, special purposes or reimbursement of expenses factors. There was ample authority to impose such fees
and the resolution adopting the fees and the special fees in this case
were not arbitrary or capricious. On the due process and equal protection,
§ 1983 claims, the court applied a rational basis test to determine
the validity of the sewer tapping fees.
The court found that Olech was not applicable to the facts in
this case because there was no proof that the township had acted irrationally
or arbitrarily. In fact the
evidence showed that the higher fees were entirely justified based on
the high-volume wastewater discharge.
Thus, plaintiff’s motion for summary judgment on the equal protection
claim is denied. On the substantive due process claim
the court noted the tension between federalizing land use law and protection
landowners’ from allegedly arbitrary or irrational municipal regulations
as such was expressed in Gretkowski. In cases where the permit denial
decision is supported by a rational basis no substantive due process
claim arises. Even though the
sewing facilities planning module for the shopping center was approved
without the higher fees, an assumption in that module was for limited
amounts of wastewater. The laundromat’s
heavy use of water provided the rational basis for the permit denial
and departure from the planning module.
[b] Volusia County v. Aberdeen at Ormond Beach, L.P.[169]
In an important decision limiting the
ability of local governments to impose impact fees, the court invalidated
a county public school impact fee as applied to a mobile home park that
provided housing for senior citizens.
The development utilized a series of covenants, conditions and
restrictions (CCRs) to set a minimum age requirement for residents.[170] There were no provisions allowing the age requirement
to be waived. While there was
a general right retained by the developer to amend the CCRs, that declaration
had not been recorded and was therefore not enforceable. In 1992 the county enacted a countywide public
school impact fee on new dwelling units. Excluded from the definition of dwelling units were nursing homes,
group homes and adult living facilities.
Due to litigation this ordinance was replaced by another impact
fee ordinance that effectively lowered the fee and permitted adjustments
to deal with the costs of constructing new schools.
The ordinance employed a student generation rate to determine
the average number of public school students per dwelling unit. The developer had paid, under protest, nearly
$ 87,000 in impact fees for 84 new homes The court had to deal with its earlier
decision in St. Johns County v. Northeast Florida Builders Ass’n,
Inc.[171]
In that case, the court upheld a public school impact fee, even though
it was applied to dwelling units without children.
The court found that there was still a rational nexus between
new dwelling units and demand for public schools that was sufficient
to uphold the impact fee, at least against a facial invalidity challenge. The court also noted that in St. Johns
the ordinance provided that individual adjustments to the impact fee
could be made. Since in this
case, the developer was challenging the application of the impact fee
to its new dwelling units, the court did not have to explore the general
issue of the required nexus between the development and the need for
the impact fee. One issue that must be resolved is
whether the development is truly age restricted so that no public school
age children may reside in a new dwelling.
The key contention of the county was that the developer retained
the right to amend the age restrictive CCRs.
But as noted above, that reservation was contained in a document
that was never recorded, and ,therefore under Florida law, could not
be enforced against the homeowners.
Thus, the court looked to the recorded CCRs that clearly prohibit
a minor from permanently residing within the community as the controlling
legal document. Under Florida law, an impact fee must
meet a dual nexus test, showing connections between the need for additional
capital facilities and the growth in population caused by the subdivision
and between the expenditures of the funds collected and the benefits
accruing to the development. This
dual rational nexus test is not applied on a countywide basis. Instead there is a need for a specific need/special
benefit analysis. The fee must
provide a “unique benefit” to those paying the fee and must not be a
stealth tax whereby there is a generalized benefit to everyone.[172] Because of the age restrictions, the county
cannot show that there is any benefit to those paying the fee. Clearly this development does not increase
the need for new public schools. The
applicable student generation rate when attached to this type of development
failed the rational nexus test. The
court also found that there were no special benefits to the new residents
who would be paying the fee. While
they received the general benefit of having new schools, that is insufficient
to justify the impact fee.
[c] Home Builders Association of Dayton and the Miami Valley
v. City of Beavercreek[173] In a case of first impression, the
Ohio Supreme Court reviewed the constitutionality of a municipal roadway
impact fee. The city adopted
its impact fee in 1993 and later amended it in 1995.
The impact fee was adopted to allow the city to recover the costs
of constructing new roadways. The
fee was designed to eliminate the need for developers to make off-site
improvements. The ordinance divided the city into districts
and prepared estimates for the cost of improvements necessitated by
full development of each impact fee district.
Estimates were also given of generated automobile trips for the
type of new development expected. The
city subtracted from the total cost figure a percentage of the total
cost based on the number of pass-through auto trips.
A further deduction was made based on other sources of roadway
funds. The ordinance provided
an appellate procedure dealing with individual development allocations. It also contained a credit system for dedication
and other types of benefits. The
funds generated by the fee are to be used for capital improvements within
the impact fee district where the funds are generated. The funds cannot be used for normal maintenance
of roadways. There was no time
limit on when the funds could be expended. Under Ohio’s constitutional home rule
provision, municipalities have the power to impose impact fees so long
as they are consistent with state law and not violative of any constitutional
prohibition. While the court
of appeals decision was concerned with whether the ordinance imposed
a fee or a tax, the supreme court determined that the labeling was not
critical to the court’s decision. The
court also rejected the court of appeals analysis that required cities
to have a matching funds provision in order for impact fees to be valid.[174] While the presence of absence of matching funds
may be relevant in determining the constitutionality of an impact or
regulatory fee, it is not determinative. The appropriate test is “whether
the fee is in proportion to the developer’s share of city’s costs to
construct and maintain roadways that will be used by the general public.”[175] The court applied the dual rational
nexus test as gleaned from Nollan and Dolan and applied by the Florida
Supreme Court in Volusia County. A court must determine: “1)
whether there is a reasonable connection between the need for additional
capital facilities and the growth in population generated by the subdivision;
and (2) if a reasonable connection exists, whether there is a reasonable
connection between the expenditure of funds collected through the imposition
of an impact fee and the benefits accruing to the subdivision.”[176] The first prong of the test looks to how the
fee is calculated while the second looks to see how the monies are expended.
The court noted the difference between the dual rational nexus
test and the reasonable relationship test of Walnut
Creek and the specifically and uniquely attributable test
of Pioneer Trust.
In choosing the middle ground between a more lenient and a more
rigorous standard, the court tried to balance the public and private
interests. The burden of proof is placed on the city. In applying the test to the city ordinance
the court found that both prongs of the test had been satisfied. The methodology used by the city to determine
the need for roadway improvements caused by the new development must
be based on generally accepted traffic engineering practices. The evidence at the trial court proved that
the city followed the necessary steps in calculating the fee. It developed a comprehensive plan for the impact
fee districts, it provided for regular review of those plans, it established
an inventory of existing roadways and it determined the cost of new
facilities needed to accommodate the expected new development. While there may be some disputes as to the
specific methodology or assumptions used, it is not the role of the
court to second-guess the city’s choices.
If the methodology chosen is reasonable, a court should not disturb
the city’s decision. As to
the second prong the court looked at several factors, including the
lack of matching funds, the system of credits and the lack of a time
period for expending the funds. None of those factors militated against the
constitutionality of the ordinance given the reasonable methodology
employed by the city that tied in expenditures to the needs of the different
impact fee districts.[177]
[d] Greater Franklin Developers Association, Inc. v. Town
of Franklin[178] After undergoing rapid growth between
1980-1995, necessitating the building of a new school, the town employed
a consultant to plan for the expected growth. They predicted that a new school would have
to be built before 2000 to keep up with the expected population growth. The town enacted a school impact fee in 1995
to shift some of the capital expenditure burdens of the new schools
to the development that was going to cause the need.
The fee schedule was based on a formula that each family house
would bring in .68 children while each condominium unit would bring
in .25 children. The money received
was to be earmarked to cover the expansion of existing schools and had
to be expended within 8 years. None
of the money was to be used for maintenance purposes. Massachusetts towns do not have the
power to tax, but they do have the power to exact fees. Thus, unlike Beavercreek the characterization
issue is outcome-determinative. The court noted that fees are normally charged in exchange for a
particular governmental service that benefits the party paying the fee,
the fee is normally voluntary and the fee is not designed to raise revenue
but to compensate the governmental entity for the funds expended to
provide the service. The court
found that there may be no direct benefits accruing to the fee payers
since the benefits of new school facilities touch all of the residents,
not just the new residents. The court also found that the payment of the
fee is truly not voluntary, in the sense that if you want to build a
new residential unit in the town you have to pay the fee. Finally, the court found that the basic nature of the fee is really
to raise additional revenue to cover the capital expenditures of operating
a school system. The court rejected
the application of the dual rational nexus test as described in Volusia County
in part because the issue in this case deals with the legislative denial
of the power to tax, rather than the constitutional limits on imposing
impact fees. Instead of following
the modern trend of treating impact fees as such, the court relied on
several older cases where the court found these fees to be hidden taxes.[179]
[e] Cimato Bros., Inc. v. Town of Pendleton[180] The town enacted a public improvement
permit ordinance that imposed a 10% fee upon contractors and developers
for inspection services conducted by the town. The town had not engaged in any statistical
study prior to the adoption of the ordinance to estimate the total costs
of the services. It merely estimated
that a fixed fee of 8% was needed and then tacked on an additional 2%
to ensure that the fees would cover the town’s costs.
Plaintiff challenged the ordinance.
It proffered evidence that all of the surrounding towns used
a sliding scale fee structure. Plaintiff
had the burden to show that the fee structure was unreasonable or arbitrary. It satisfied that burden by showing that the
town had reimbursed individual contractors on an ad hoc basis when it
determined that it was charging too much.
While the ordinance set forth various duties of the Town Engineer,
there was no guidelines regarding the nature or extent of the services
to be accomplished. This lack of uniformity and predictability, as well
as the lack of statistical support show the arbitrary nature of the
fee. [2]
Subdivision Regulation
[a] Association of Rural Residents v. Kitsap County[181] Under Washington’s Growth Management
Act (GMA), local governments are required to enact comprehensive plans
that meet state-mandated minimums.
A developer sought approval of a planned unit development (PUD)
consisting of 106 lots on a 123 acre tract. At
the time of the application the county’s zoning ordinance only permitted
an overall density of 1 unit/2.5 acres.
The ordinance, however, allowed the density to be increased to
1 unit/1acre provided that the PUD proposal is “not unreasonably incompatible”
with the surrounding area. The
surrounding area was largely undeveloped.
In response to the developer’s preliminary plat and PUD application,
the county issued a mitigated determination of non-significance (MDNS)
under the State Environmental Protection Act.
After several administrative appeals brought by the plaintiff,
the county approved the plat and PUD as proposed, even though one of
the reviewing officials recommended that the PUD be limited to 70 units. The parcel was located outside of the county’s interim urban growth
area (IUGA) as designated under the GMA. One of the key issues is what land
use regulations were in effect at the time the developer submitted his
applications on December 15, 1994.
Because the county’s comprehensive plan and IUGA designations
were not in effect at that time due to their inadequacy under state
law, the developer is entitled to have the pre-application ordinance
apply to his plans. Washington generally follows an early vested
rights rule requiring the ordinances and regulations in effect at the
time of the initial application to govern throughout the review process.[182]
Plaintiff argued that where a PUD application is filed, a different
rule should attach since it is merely the opening salvo in what will
be a lengthy, negotiated review process.
The court disagreed, however, and concluded that when a PUD application
is joined with a preliminary plat approval request, the vested right
attached to the entire application, including the PUD.
Since the combined application included not only a subdivision
plat but a development proposal, the right to develop as well as the
right to subdivide should be vested.[183] The court also found that the MDNS ruling should
be reviewed under the deferential clearly erroneous standard. The court is only to determine if the county
reviewed the environmental evidence as required by the statute and is
not to engage in a de novo review substituting its judgment for that
of the county’s.
[b] Equicor Development, Inc. v. Westfield-Washington Township
Plan Commission[184] Plaintiff is the contract-purchaser
of a 27.2 acre tract of land zoned for medium density residential development
under the township’s zoning ordinance.
It submitted a preliminary subdivision plat for approval that
met all of the requirements under the then-existing ordinance, including
a density cap of 82 lots. During
the plat review process the town council suspended the operation of
the extant zoning ordinance while it considered a comprehensive amendment
to its land use ordinances. Eventually the plat was rejected by the commission.
During the public hearings there was some commission sentiment
to have the plaintiff reconfigure the plat to provide for more open
space through a clustering pattern. The scope of judicial review of an
administrative decision to deny a plat is the substantial evidence test. The court found that under the zoning ordinance,
the developer must have two on-site and ½ off-site parking spaces available
for each 1-3 bedroom units being developed. The plat did not indicate the number and location of parking spaces
and therefore there was substantial evidence in the record to support
the denial decision. The court
remarkably, however, found that the decision to deny preliminary plat
approval was arbitrary and capricious notwithstanding its earlier finding
that substantial evidence supported the decision.
The denial decision was deemed to be arbitrary and capricious
using an equal protection, selective enforcement claim.
Plaintiff argued that similar subdivision plats had been approved
without parking space designations and the only reason for the denial
here was the commission’s attempt to have the new zoning ordinance’s
standards apply. Even though the parking space problem provided
substantial evidence in the record, the review of the plat by the staff
had not identified that as a reason to deny the plat application. The records of the hearings clearly indicated
that the officials were concerned with density and design issues, not
parking spaces. Therefore, the
developer was entitled to have its plat approved.[185] The court explored the motives of the decision-makers
here and clearly substituted its judgment for that of the township’s.
If the decision is otherwise supportable, as the court concluded,
whatever ulterior motive may have driven the decision-makers should
have been ignored by the court.
[c] Medina County Commissioners Court v. The Integrity Group[186] In 1993 the developer initially sought
approval from the county to subdivide a 4.843 acre tract into 16 lots.
The developer amended his plat to create a 7 lot subdivision
that was approved by the court. The developer received approval from the local
special district providing wastewater services and in addition received
TNRCC approval for its water pollution abatement plan. When the developer sought final plat approval
the county denied the application because the developer had not met
the one acre minimum lot size requirement for subdivisions whether they
are located inside or outside of the Edwards Aquifer Recharge Zone (EARZ). TNRCC also had the same minimum lot size requirement
for its permit, but the subdivision had been filed prior to the minimum
lot size requirement taking effect.
In addition, most of the subdivision fell outside of the EARZ
and was subject to Texas Water Development Board regulation, not TNRCC
regulation. Under Texas law, the authority of the
commissioners court to approve subdivision plats is not discretionary
if the plat meets the statutory requirements.[187] A county is without power to impose requirements
for a subdivision, other than that contained in the statute. The statute does not provide for a minimum
one acre lot size. The county
argued that it had power under other enabling statutes dealing with
private sewage facilities to require a minimum one acre lot size. But the area within EARZ was subject to state, not county, regulation.
Under state law, a county government can have a more stringent
regulation than that provided for by TNRCC, if it gets approval of those
rules by TNRCC. While the developer asserted that the county had never received
TNRCC approval, there was no competent summary judgment evidence on
that issue. Thus the granting
of mandamus relief by the trial court was improper until the fact issue
was resolved.
[d] Miles v. Foley[188] Under Connecticut law,[189]
if a subdivision plat is not approved, modified or disapproved within
the statutory time limits it is deemed approved.
The law also required the planning and zoning commission to state
the grounds for its actions. In
May 1996, the plaintiff submitted a subdivision plat for approval. It was rejected the following day because it
was determined to be premature. After
the 65-day statutory period passed, plaintiff sent a demand letter stating
that the plat had been deemed approved under the statute. The commission disagreed with that conclusion and plaintiff brought
this action in the form of a writ of mandamus to compel the commission
to approve the plat as submitted. The
trial court concluded that the action taken to reject the application
was action within the meaning of the statute and thus refused to issue
the write of mandamus. The issue is whether the “rejection”
of the plat as premature constituted an approval, conditional approval
or disapproval as required by the statute.
An earlier Connecticut decision,[190]
had found that a rejection of a plat because an identical plat was the
subject of ongoing litigation, was a sufficient action under the statute
to avoid the “deemed approved” result mandated by the statute for local
inaction. Even if the commission’s actions are arbitrary
or ultra vires, they are still actions that comply with the statute.
The objective of the statute is to avoid dilatory review tactics
and to ensure expeditious actions. Even though the commission did not get to the
merits of the case it took expeditious action. Thus the automatic approval doctrine contained in the statute was
not triggered. Plaintiff could
have sought an administrative appeal of the commission’s rejection decision. Because an appeal was available, no writ of
mandamus should be issued.
[e] County Council of Prince George’s County v. Dutcher[191] The owner submitted a subdivision plat
application to the Maryland-National Capital Park and Planning Commission
in order to develop a 8.83 acre parcel into 20 lots for single-family
residential purposes. Under
the county subdivision ordinance, the owner had the burden of proof
to show the County Planning Board that there would be adequate access
to roads to serve the traffic generated by the subdivision.
The Planning Board studied the application and the staff initially
recommended disapproval because traffic at a key intersection would
be adversely affected. At a
Planning Board public hearing suggestions were made to the owner to
adopt the provisions of a mitigation plan.
After agreeing to fund a share of the needed improvements specified
in the mitigation plan, the Planning Board issued a conditional approval.
A neighborhood association appealed the Board’s decision to the
County Council. The Council
remanded the case to the Board and ordered them to solicit comments
from several state agencies. After
supplementing the record the Board reaffirmed its original decision
and another appeal was taken to the County Council.
The Council reversed the Board’s decision and denied the mitigation
plan. A trial court found that the Council should
have given more deference to the Board’s decision and that the facts
in the record did not support the Council’s decision. The court initially discussed whether
the appeal from the trial court’s decision was done in a timely fashion.
It found that the appeal was not timely since the Council had
not authorized an appeal within the 30 day period and that the Council’s
attorney did not have the power to file the appeal without such authority.
The court, in dicta, then analyzed the appropriate scope of judicial
review of plat approval decisions.
In Maryland, judicial review of administrative agency decisions
is very deferential. While applying a substantial evidence test,
there is a strong presumption of validity.
The court defined the substantial evidence test using the classic
Euclidean language of “fairly debatable” a scope of review better suited
for review of legislative, rather than adjudicatory decisions. The issue under Maryland law is whether the
Council acts in an appellate or de novo review position vis-à-vis the
Board’s decision. The court
concluded that the Council’s role is akin to that of an appellate court,
and therefore it must give deference to the Board’s findings of fact
and conclusions.[192] Thus, when the appellate court reviews the
decision, it focuses on the decision of the Board, not on the decision
of the Council. The court found
that the Board carefully studied the plat and its impact on traffic. While it did not conduct an independent traffic study, it relied
on other plat decisions that had reached a similar conclusion to support
its mitigation plan. The mitigation
plan sufficiently dealt with the traffic issues in a way that was consistent
with the performance standards contained in the ordinance and regulations. Thus the Board’s decision was at least fairly
debatable and supported by substantial evidence.
[f] Heidrich v. City of Lee’s Summit[193] Developers of a residential subdivision
have carried on a longstanding feud with the city regarding the development
of an adjacent 138-acre parcel. The
land had been annexed into the city in 1992 and was zoned for a planned
business district. Various site
plans were adopted for a phased development of the acreage, some of
which were invalidated by the court.
In 1996 a preliminary site or development plan was submitted
by an owner of a portion of the parcel.
This precipitated a need to amend the original site plan for
one of the phases of the development. Eventually the city approved the amendment
to the site plan. The neighbors
than brought this action asserting that the decision, including a decision
to amend the zoning ordinance was arbitrary and unreasonable. The scope of judicial review of either
a site plan approval decision or a rezoning ordinance is quite limited.
The court applied the “fairly debatable” standard under its general
arbitrary and capricious test. All uncertainties about the decision are resolved
in favor of finding the governmental decision valid. One argument raised by the neighbors was that
the ordinance required development tracts of at least 2.5 acres in size,
while this particular development plan only affected a little less than
2 acres. But the development proposal was part of a
larger proposal that was larger than 2.5 acres. The court also dismissed the claim that the city had not conducted
an adequate traffic study. The
issue of traffic congestion was raised during the public hearings and
the city planner testified that he did not believe a study was required
to deal with the modifications to the original site plan. The preliminary site plan contained a condition
of a unifying architectural scheme.
The court minimally reviewed the architectural plans in concluding
that the proposed new development was consistent with the overall architectural
scheme for the office park. All
of the claims of the plaintiff regarding to the decision were within
the sound discretion of the city. There
was no evidence that the discretion afforded the city was exercised
unreasonably or arbitrarily.
[g] Village of Key Biscayne v. Tesaurus Holdings, Inc.[194]
In February 1998, the Village granted
provision approval for Tesaurus for several variance and special exception
requests for a mixed use development. The approval was specifically conditioned on site plan review at
a later date of the proposed residential development. The provisional approval constituted a finding that the proposed
development complied with the master plan.
In August 1999, the developer returned with the site plan encompassing
the residential development. The
Village disapproved of the site plan since it was inconsistent with
the general plan. The developer sought judicial review. The trial court found that the site
plan denial was a violation of the developer's due process rights triggered
by the original approvals. The
developer had the burden to show that the site plan was consistent with
the master plan. Since the master
plan did not allow for residential development in the area subject to
the plan, there could be no property interest in having the site plan
approved. Approval of the site plan would have required
a finding of consistency. That
was impossible and thus there could be no violation of the developer's
due process rights.
[h] Hill v. City of Clovis[195] Plaintiff’s predecessor in interest
executed a subdivision agreement with the city whereby the subdivider
would provide certain street, landscaping and irrigation improvements. A subsequent agreement between the plaintiff
and the city required a $ 55,000 right-of-way acquisition fee but gave
the plaintiff a credit in fees for constructing the central travel lane
improvements. Final subdivision map approval was given the
plaintiff who completed the subdivision, but never completed the improvements
as promised. Several years
later the parties entered into another agreement whereby plaintiff agreed
to construct public road improvements in another part of the city. The city never paid the plaintiff for the cost of the improvements.
Plaintiff sought a declaratory judgment as to the status of his deposit
and the credit and the unpaid contract price, while the city cross-complained
for damages, measured by the cost of having the improvements completed
by a third party and a set-off against the amount owed under the later
contract. The trial court basically
offset both of the parties’ claimed amounts, but awarded the city attorney’s
fees. The court applied the Subdivision Map
Act.[196] The Act specifically deals with the relationship
between a subdivider and a city, especially where the city is requiring
improvements be made by the subdivider. If the subdivider is obligated to build improvements, the city has
120 days from the filing of the final plat to acquire the interest in
the land where the improvements are to be made.
In this case the city failed to acquire title to the land within
that time period. Under the
Act the local government has two options in connection with offsite
improvements. It can require all improvements be completed
prior to final map approval or it may approve the final map and execute
a mutual agreement with the subdivider to complete the improvements. The court interpreted the Act’s time period
as only applying where map approval is refused by the city and not where
final map approval is granted. Since
the city approved the final map, the 120-day time period did not apply
and therefore the subdivider was obligated to make the improvements
even though the city did not acquire title to the lands until well after
the deadline had passed.
[i] Smith v. City of Eufaula Planning Commission[197] Smith filed a PUD with the commission
seeking to develop a 36 acre tract for manufactured housing. After a public hearing the commission conditionally
approved the PUD. Smith was
required to provide for perimeter fencing and an engineering report
regarding the adequacy of water pressure to serve fire control needs. The city eventually filed a report showing
a lack of water pressure and the commission withdrew its conditional
approval. After a year a second
PUD application was filed and additional testimony proffered showing
that steps would be taken to improve water pressure in the area. The application was not approved on a 3-3 vote of the commission. Under Alabama law, a commission must
approve or disapprove a PUD or subdivision plat application within 30
days of submission. The court
interpreted the statute as treating a tie vote as a vote to disapprove. The statute also required the commission to
state its reasons for its disapproval in writing. The court found that the record of the hearing and the minutes of
the commission satisfied the writing requirement. Extensive discussions were held regarding the water pressure issue
that showed why the commission was not going to approve the PUD.
[j] Urrutia v. Blaine County[198] This case involved two separate subdivision
plat applications. Both developers
submitted plats for acreage located in a rural residential zone allowing
density no greater than 1 unit per 20 acres. The Planning and Zoning Commission recommended both be approved. Both preliminary and final plat approvals were
granted. A neighbor challenged
both decisions and a trial court remanded the decisions to the County
Board of Commissioners. Given
a second opportunity the board voted to deny both plats as not conforming
to the comprehensive plan. In Idaho, judicial review of an administrative
zoning decision by the trial court is treated as appellate review.
Further review by the Supreme Court is not of the trial court’s
decision, but of the agency decision and the agency record.
Agency findings of fact are deferred to unless clearly erroneous.
Thus the district or appellate court should not substitute its
judgment for that of the agency even if there was conflicting evidence
in the record. The agency decision
will be reviewed under the substantial evidence test to see if the decision
was arbitrary, capricious or an abuse of discretion.
Idaho treats the comprehensive plan as only a guide for development.
There is no mandatory consistency requirement between the plan
and the zoning or subdivision ordinance.
The county had originally found that both plats complied with
the zoning and subdivision ordinances, but one of the two did not meet
the requirements of the plan. The county subdivision ordinance required
the plat to conform to the comprehensive plan, but the court found that
the only compliance required is that the plat comport with the overall
objectives and goals of the plan. There
is no independent plat requirement of consistency with the plan. Thus the county’s decision to reject both plats
on that basis was in violation of its statutory mandate. The court in dicta also found that one of the
two plats was filed prior to the effective date of the 1994 comprehensive
plan. Idaho has an early vesting
rule so that the ordinance in existence at the time of the filing of
the application applies even though it may be amended later.
[k] Cathedral Park Condominium Committee v. District of Columbia
Zoning Commission[199] Developers wanted to construct a nine-story
addition to an existing apartment building that was listed as a historic
landmark. The site abutted the
National Zoo and a portion of Rock Creek Park.
The developer planned to follow the original designs for the
addition that were abandoned in the 1930’s due to the Depression. The developer planned to rehabilitate portions
of the tract near the park. The
site was located in a MFR zoning district whose FAR requirements would
be violated by the proposed addition.
In order to implement the plan, the developer filed a PUD application
with the commission and sought rezoning relief from the FAR restrictions. The developer also sought waivers or variances
from some other performance standards including rear yard requirements.
After several public hearings where the neighborhood committee
participated, the commission approved the PUD finding that it would
be consistent with the comprehensive plan. Judicial review of a PUD decision is
limited and deferential under the arbitrary, capricious or abuse of
discretion standard. In addition,
the court applied the substantial evidence test to review the commission’s
findings of fact. Deference
was also given to the agency’s interpretation of its own regulations
and ordinances. Plaintiff argued that the increased density
allowance clearly violated the plan’s objectives of only allowing low-density
development. In reviewing the
commission’s decision the court looked at various portions of the plan
and its density objectives. The
court found that the PUD’s higher density levels were tempered by the
large lot and the amount of open space that would be left even after
the expansion. The court excused the commission’s failure
to address the plan’s objective that development around historic parks,
such as the National Zoo, be low density, because overall the project
appeared to be consistent with the plan.
Another plan objective was to create buffer zones between developed
areas and parks. The commission determined that the tree preservation
plan and open space areas were sufficient to meet that requirement.
There would be little visual impact on both Rock Creek Park and
the National Zoo. The court also deferred to the commission’s
interpretation of its regulations relating to the preservation of open
space. Infill development was
specifically mentioned in the plan as something that needed to be reviewed
closely to determine that open or green space not be eliminated. But the court remanded the decision to the
commission to revisit the question of consistency between the open space
portions of the plan and the PUD. The
court found that the commission analyzed the effect of the addition
on the historic architectural features of the existing building. There was substantial evidence in the record
to support the findings that there would be no adverse effects caused
by the addition. Finally, the court deferred to the commission’s analysis
and findings regarding the waiving of various standards that were needed
to allow the PUD to be constructed.
[l] Davis v. Planning Board of the City of Somers Point[200] In January 1991, McDonald’s received
preliminary site plan approval for one of its restaurants that included
several variances and waivers. A
New Jersey statute in 1993 automatically extended the preliminary site
plan approval through December 31, 1996.
In January 1997, McDonald’s sought a further extension as allowed
by statute through December 31, 1997.
In August 1997, it filed for final site plan approval that reduced
the size of the building and the interior seating and changed some of
the access points. Plaintiff participated at the Planning Board
public hearing and argued that the board had no jurisdiction to vote
on the final site plan since there had been significant changes from
the preliminary site plan. The
board disagreed with this contention and approved the final plan.
Under New Jersey law, the filing of the preliminary plan insulated
the applicant from future changes in the zoning ordinance. The statute also only required the preliminary
site plan to be in tentative form for discussion purposes. Modifications to the preliminary site plan
are to be expected and thus in order to cross the threshold of significant
changes which require a new preliminary site plan, the changes must
substantially change the nature and impact of the planned development. In this case, the downsizing of the building
and the access changes did not amount to a substantial or significant
change.[201] On the merits, the scope of judicial review
of the board’s site plan decision is limited to determining whether
the decision meets the legal requirements and is founded on adequate
evidence. While plaintiff argued that there would be
substantial negative externalities the court found that the approval
of the final site plan was consistent with the preliminary site plan
and the ordinance.
[m] Blaha v. Board of Ada County Commissioners[202] In May 1996 the owners of a 40-acre tract sought preliminary plat
approval for an 8-lot subdivision.
The Eagle City Council reviewed the plat since it was within
an area of city impact even though it was located outside of the city’s
boundaries. As the city began reviewing the final plat
application, several neighbors stated their opposition to the development
and argued that the private road designated to provide access failed
to meet city street standards. The
city went ahead and approved the plat subject to several conditions
including compliance with the Ada County Highway District regulations.
The developers then sought two variances to avoid having to comply
with a number of county regulations.
The board approved the plat and noted that to comply with ACHD
regulations, the public road/private road intersection would have to
be extensively reconstructed which was not needed given the small number
of vehicle trips generated by the new subdivision.
The board also found that the private road was in substantial
compliance with city street standards.
The board thus approved the plat and the neighbors sought judicial
review. The court first found that the board
had the power to grant the variances relating to the intersection design
standards, although that was not one of the express powers granted to
counties to issue variances. As
to the city’s street width standards, the court found that the private
road should be governed by the county’s standards, not the city’s, so
that no variance was actually needed.
In resolving the potential intergovernmental conflict because
the plat is located in an area of impact for the city, the court determined
that the county has the exclusive power to review and approve plats
in that area. The city’s review
must only be advisory in nature because to give it veto authority would
be to infringe on the “constitutional rights” of the county.
The court interpreted its state constitution as creating dual
sovereign bodies, the county and the city, neither of which could infringe
upon the sovereign powers of the other within one’s territorial limits.
[n] City of Colorado Springs v. Securcare Self Storage, Inc.[203] An owner of a 4.4 acre tract sought
to develop by constructing mini-warehouses for self-storage. It received administrative approval for the
initial development plan in 1995. It
modified the plan shortly thereafter to add a service station on a one
acre portion of the tract. The amended plan was submitted to the planning
commission for its approval. After
hearing local opposition the commission rejected the plan finding it
incompatible with the surrounding residential neighborhood. The zoning
ordinance, however, zoned the tract for commercial uses, including both
types of proposed uses. The city council upheld the commission’s denial
of the development plan. The owner sought judicial review. The procedural posture of the case
was governed by Colorado Rule of Civil Procedure 106(a)(4) that limits
review to see if the governmental body exceeded its jurisdiction or
abused its discretion. The ultimate
issue in this case was whether the city ordinances authorized the city
to deny a development plan for a use permitted by the zoning ordinance. Thus the court had to explore the zoning powers of the city.
Colorado Springs is a home rule city giving it non-preemptible
powers over local or municipal matters, including zoning.
Thus the city has plenary authority, subject only to other constitutional
limitations and its own charger, to determine how to zone and plan.
The zoning ordinance provided for specific districts where uses
are either permitted, conditional or prohibited.
The zoning district here listed mini-warehouses and service stations
as permitted uses. In order
to develop land one must receive a building permit for any structure. Building permits require the receipt of development
plan approval before they can be issued. The procedural and substantive requirements for development plan
approval were set forth in the ordinance.
The planning commission was given the specific authority to review
development plans applying a compatibility criteria. In looking at these zoning ordinances as a whole, the court interpreted
them to allow the commission to review and then deny development plans
that do not meet the criteria listed in the ordinance. Otherwise, the development plan review system
would be superfluous for permitted uses. There was no ordinance language exempting permitted uses from the
development plan review process. There
is no absolute right to operate a permitted use under the zoning ordinance.[204]
[o] In re Appeal of Busik[205] The Busiks own a 83.23-acre tract of
land located in a rural-residential zone.
In 1991 they submitted a preliminary plat to subdivide their
parcel into 7 residential lots. They
agreed to a condition imposed by the township to enter into an agreement
with a neighboring landowner with respect to the terms and conditions
governing the use of a road that traverses both of their parcels.
With that and other conditions, the township approved the preliminary
plat. The Busiks were able
to comply with all of the conditions except the one requiring an agreement
with the neighbors. They sought
final plat approval and requested to have that condition removed. The township approved the final plat, but still
made it subject to the agreement condition. The court determined that both the
preliminary and final plat decisions are appealable under Pennsylvania
law. If the Busiks were concerned
about the agreement condition, they should have challenged the imposition
of that condition within the time frame allowed following the approval
of the preliminary plat. By
failing to challenge the preliminary plat decision and, in essence,
accepting all of the conditions, the subdivider waived his right to
challenge those conditions in the future.
Even though the Busiks attempted to negotiate in good faith with
their neighbors, they cannot attack the validity of the condition at
this point in the review process. The court noted that the Busiks were in a difficult
position since they would have had to challenge the preliminary plat
decision within 30 days, hardly enough time to see whether they could
comply with the condition. But
the court would not rescue a party from accepting what they now believe
to be imprudent conditions.
[p] Madison River
R.V. Ltd. v. Town of Ennis[206] In April 1998, plaintiff sought preliminary
plat review to build a campground for 73 recreational vehicles.
The Planning Board recommended that the application be denied
because it was incomplete and would create substantial traffic and sewage
problems. The application was forwarded to the Town Council. Plaintiff sought to have one councilman recuse
himself because of his alleged bias against the project. The councilman refused to recuse himself.
The council voted to deny the application. The court found that the councilman
was not required to recuse himself because the evidence was not clear
that he had prejudged the case or that he had an economic interest in
the outcome. The pre-hearing comments by the councilman
were equivocal in tone and raised legitimate questions about some of
the possible negative externalities that would arise if the development
was approved. Under Montana
law the town was required to give a written statement specifying the
reason for the denial of the preliminary plat.
The 30-day time period for filing an appeal does not begin to
run until that statement was filed.
Thus the fact that the statement was filed after the complaint
was filed by the plaintiff in this case would not affect the outcome.
The court found that the trial court had not violated the plaintiff's
due process rights by failing to hold a hearing.
It had been the position of the plaintiff that review was on
the record for which no new evidence would be allowed.
As such there was no constitutional requirement for a hearing. The court further found that the town's decision
was not arbitrary, capricious or unlawful. While there was some debate as to the traffic and sewage impacts,
there was enough evidence to support the town's denial decision. Finally, the court rejected the plaintiff's
regulatory takings claim because insufficient facts were alleged to
show that the value or the usefulness of the property has been substantially
diminished. There were no allegations
that the plat denial had the effect of denying all economically beneficial
use to the parcel in question.
[q] Largent v. Klickitat County[207] In 1996 Largent files a preliminary
plat application with the county seeking to create a 20 residential
lot subdivision out of a 9.64 acre tract.
The plat was amended to include only 16 lots in a two-phased
development. The owner received
permission to use an on-site sewage disposal system from the regional
health district and was granted permission to tie into a drinking water
supply system. The plat included
the construction of a private road.
Under county regulations the road was classified as an urban
access route and thus required a 32-foot wide right of way and the use
of bituminous surface treatment. The
owner seeks a variance to construction only a 20 foot gravel road on
a 40 foot right of way. The county denies the variance and the owner
seeks judicial review. The county’s decision to deny the variance
is based in part on the inadequacy of the sewage and drinking water
commitments. The commitments
are only for residential purposes while the plat shows a mixture of
residential and commercial uses. In
reviewing an administrative ruling, the court only looks at the record
and applies the substantial evidence test as to factual issues. The potential development of several lots for commercial use in
the second phase supports the board’s decision that there is an inadequate
showing of public services to the platted area. Where there is a disputed set of facts the court will not substitute
its judgment for that of the board’s. The court also upholds the decision
not to grant a variance as to the appropriate road surface and right
of way width. The private road
is properly classified as an urban access route.
There is no evidence of special circumstances that would justify
the granting of a variance. The
only evidence in the record was the owner’s claim of financial hardship,
which by itself is insufficient to support a variance.
Evidence that variances to allow the use of gravel surfaces to
other developers is also not sufficient to overturn the variance decision. The court inextricably finds that Nollan-Dolan
are inapposite since the case does not involve an exaction or a physical
invasion. The regulations here
do no require the dedication of the land, they merely set forth minimum
surfacing and width requirements for the private road.
Thus, the court concludes that Del Monte Dunes limits Nollan-Dolan
to the exaction or dedication decision.
It then applies the Washington regulatory takings analysis that
asks whether the decision denies the owner a fundamental attribute of
property ownership. Such attributes
include the right to possess, the right to exclude and the right to
make some economically viable use of the land.
The plaintiff bears the burden of proof on that issue.
If no fundamental attribute of property ownership is involved,
then the court must determine whether the ordinance serves the public
interest or is merely a subterfuge to require the regulated party to
confer a public benefit. The
court finds that the regulation does not interfere with the right to
possess or develop the land. By
replatting the land into a less dense configuration, the owner can avoid
having the road classified as an urban access road and thus avoid having
as wide a right of way required. The court then applies a substantive due process
analysis and finds, not surprisingly, that the road regulations served
a legitimate public purpose. Likewise
it concludes that the ordinance is not unduly oppressive as to the owner
so that he is not being singled out to provide a public benefit. The mere fact that the surfacing and width
requirements add some expense to the owner’s plans does not render the
requirements oppressive. 1.06
NIMBY Syndrome [1] Telecommunications Facilities (TCFs)
[a] Petersburg Cellular Partnership v. Board of Supervisors[208]
The Telecommunications Act of 1996 continued to have a significant
impact on the land use litigation scene. It is clear that the Act federalized the law of zoning and planning
insofar as most TCFs are concerned.[209] Section 704 of the Act,[210]
imposed several procedural and substantive standards that must be met
by local governments who attempt to regulate TCFs.
Local governments must create a written record that supports
their TCF decision under the substantial evidence scope of judicial
review. The key substantive standards are that a decision
cannot prohibit or have the effect of prohibiting the provision of telecommunications
services, the decision cannot be based on the environmental effects
of radio frequency emissions, the decision cannot unduly discriminate
against a service provider and the decision must not be a wrongful entry
barrier for potential service providers.
Failure to comply with one or more of these statutory mandates
can lead to a Section 1983 cause of action.
Almost all of the litigation to date has focused on the prohibition,
non-discrimination and substantial evidence standards. In this case the TCF provider sought
a discretionary permit to construct a 199-foot tower on a land zoned
for commercial use. The Planning
Commission recommended that the permit be issued, subject to several
conditions. Some community opposition was heard at the
Board of Supervisors meeting. Eventually,
the Board decided to deny the permit. The district court found that the Board had
not satisfied the substantial evidence test because the record was found
to be both “modest” and “speculative.”
The Board appealed. The
Fourth Circuit’s decision was fractured and precedent setting at the
same time. Judge Niemeyer and Judge King agreed that the
Board’s decision was not supported by substantial evidence. Judge Widener dissented on that issue. But Judge Niemeyer found that the Act is unconstitutional
under the 10th Amendment. Neither of the other two judges agreed on that issue. Since Judge Niemeyer, on constitutional grounds,
and Judge Widener on statutory grounds, found that the district court
decision was erroneous, the result of the opinion was to reverse the
district court and reinstate the Board’s permit denial decision. While the Fourth Circuit had previously
defined the substantial evidence test to provide for a “soft glance”
rather than a “hard look”,[211]
there is nonetheless a review role for the court. Substantial evidence falls between the mere scintilla and preponderance
of the evidence standards. In
this case, the lack of substantial community opposition and arguments
made, on the record, to the Board, does not support the Board’s decision
to deny the permit. While several
concerns were raised, they were all disposed of by the permit applicant
at the hearing. One argument
was that the tower would interfere with a nearby airport, but the applicant
had received permission from the FAA to locate the TCF and place a light
on top of it, eliminating any true concern about airplane safety. The county urged, and Judge Niemeyer,
accepted, the claim that the Act’s provision imposing the substantial
evidence standard violates the Tenth Amendment by coercing local governments
to employ “intrusive federal rules” in their zoning and land use regulatory
processes. According to Judge Niemeyer, the Act, while
containing a non-preemption clause, has the effect of requiring state
and local governments to employ both the procedural and substantive
standards of the Act. The county
first argued that the Act’s substantial evidence standard is different
than that required under Virginia law for the review of local zoning
decisions. Virginia courts employ a very deferential standard
to review both legislative and administrative zoning decisions.[212]
The classic Euclidean fairly debatable standard is employed by the courts
to review local decisions. Judge Niemeyer argued that by altering
the state scope of judicial review the Act has two substantial detrimental
effects on federalism. First,
the very act of imposition, without a meaningful opportunity for a state
to opt out, compromises state and local sovereignty.
And second, regardless of the relative effects of the federal
and local standard, the imposition of a federal standard on a local
board confuses the electorate as to which governmental unit, federal
or local, is to be accountable for a legislative decision made by a
local board.[213] The revival of Tenth Amendment jurisprudence
with Printz
v. U.S.,[214]
has led to a time of substantial uncertainty as to how far the courts
will go to protect the dual sovereignty structure embodied by that amendment. The commandeering of local legislative processes
is seen as a threat to the union. Judge
Niemeyer somewhat bombastically observed: Moreover,
when the federal government commandeers state and local legislative
processes to carry out its own goals, not only is the federal power
aggrandized and the state power enslaved, but also the lines of separation
are blurred, causing a loss of accountability to the people and confusion
by them. When a local legislative body acts under a
standard imposed by the federal government, even if the federal standard
is comparable in effect to state standards, a significant risk arises
that the citizens of the community will not know whether the legislative
act is the produce of Congress or of their local legislature.
This confusion inevitably frustrates a normal democratic response.[215] The federal government
is free to preempt state and/or local police powers acting pursuant
to the Commerce Clause. It is
also empowered to employ incentives to encourage state and/or local
action. But it cannot coerce or unilaterally erase
the line between state and federal sovereigns.
The Communications Act coerces the county to employ the federal
standard if it is to engage in zoning and planning.
While state courts can be required to apply federal law,[216]
state or sub-state legislative bodies may not be required to apply federally
mandated standards. Thus Judge
Niemeyer would invalidate the Act’s provisions relating to the imposition
of the substantial evidence standard but would retain the remaining
provisions in the Act.
[b] 360 Communications Co. of Charlottesville
v. Board of Supervisors[217] In a case decided one week after Petersburg, the Fourth Circuit did not have to deal with
the constitutional issues in again reviewing a local decision not to
issue a permit for a TCF. Plaintiff
sought to build a single tower on a ridgeline in order to provide adequate
wireless service to a portion of the county.
The Board held a hearing at which it heard some 10 citizens complain
about the tower. The Board
voted unanimously to deny the permit saying it would conflict with the
county’s comprehensive plan and open space plan.
The district court found that there was no reasonable alternative
location and that the Board had exhibited a hostility to the application
that required the issuance of an injunction to order the Board to issue
the permit. Under the Fourth Circuit’s deferential
view of the substantial evidence test, the court determined that the
district court had abused its discretion in not finding substantial
evidence in the record to support the permit denial decision. There was both near-unanimous citizen opposition
and inconsistency with the comprehensive plan. While the applicant’s evidence showed that
its design and location would minimize the intrusive nature of a tower,
it is up to the Board to make the determination of compatibility. Thus, there was substantial evidence in the
record to support the decision. As to the prohibition claim made by
the plaintiff, the district court had found that no reasonable alternative
existed whereby wireless services could be provided. The court reviewed the evidence that showed that there were other
alternatives, including having 6 towers at lower mountaintop or ridgeline
elevation or even more towers at lower elevations. The court emphasized the Act’s intention to leave as much local
control as possible. Thus, the
definition of what are reasonable alternatives must be undertaken with
that objective in mind. The
PCS applicant has the heavy burden of proof to show that there are no
reasonable alternatives to the provision of adequate service.
The evidence in this case was disputed and therefore the applicant
had not sustained its burden. The
district court’s decision was reversed and the Board’s decision to deny
the permit was reinstated.
[c] Southwestern Bell Wireless Inc. v. Johnson County Board
of County Commissioners[218]
The county had adopted an amendment
to its zoning ordinance imposing a stipulation in all TCF permits preventing
the TCF from interfering with county public safety communications. When SWB sought a permit for a tower, the permit
included the stipulation along with various conditions regarding the
need to respond to complaints about any alleged interference. The county had communicated with the FCC prior
to the adoption of the ordinance and prior to its review of SWB’s permit
application. The FCC responded
that it considered the county regulation in the radio frequency interference
(RFI) area preempted by the Act. The court applies the traditional tripartite
preemption analysis to determine if the RFI regulations are preempted.
It first examined whether the Act expressly preempts local RFI
regulations. It found no express statutory preemption language. It then determined whether the federal scheme
of regulation occupies the field so as to leave no room for state regulation.
The court reviewed not only the Act, but the various statutory
enactments dealing with the FCC. In addition to the statutes, the court looked
at the FCC regulations dealing with RFI. The extent of federal involvement in RFI issues was deemed to be
so pervasive that there was an implied intent to occupy the field. As in Petersburg the county made
a claim that the FCC statutes and regulations violate the federalism
principles embodied in the Tenth Amendment.
Without the hyperbole of Judge Niemeyer’s concern over the commandeering
of local legislative powers, the court simply concluded that even historic
or classic police powers exercised by the state may be preempted by
federal action taken pursuant to a constitutionally granted power. Here the Commerce Clause provided sufficient authority for the federal
government to act. When it acts
it can choose to remove state and local governments from areas of traditional
powers. Thus the preemption
of RFI issues does not violate the Tenth Amendment.
[d] Industrial Communications & Electronics,
Inc. v. Town of Falmouth[219] In 1990 the Town enacted an amendment
to the zoning ordinance dealing with TCFs that allows them to be located
in two districts as a conditional use.
In 1997, plaintiff purchased a parcel of land where there were
some existing TCF towers. The
parcel had been the situs of the towers prior to the enactment of the
1990 ordinance. In 1998, plaintiff sought a permit to replace
the existing towers with a single tower. The permit was denied as well as a variance from the setback requirements.
A second application was denied also. The first argument made by the plaintiff was that there was not
substantial evidence in the record to support the town’s decisions. The First Circuit defines substantial evidence
as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” The
approach is deferential, but possibly not as deferential as the Fourth
Circuit. One preliminary issue the court dealt with
involved an interpretation of the zoning ordinance. The plaintiff argued that all it was proposing was a structural
alteration to existing towers. Applying
state law, not federal law, to resolve the interpretational issue, the
court determined that plaintiff’s permit applications were for new towers,
not merely alterations to existing towers.
In addition, the court found that the proposed changes to the
non-conforming uses were not authorized by the zoning ordinance because
the changes were of such a nature as to be more than a mere expansion.
The court also found substantial evidence in the record to support
the denial of the variance from the setback requirements.
Under Maine law, an applicant for a variance has the burden of
proving that the 4 statutory criteria have been satisfied.[220]
One of the factors or criteria is that the land cannot yield a reasonable
rate of return without a variance.
Here the plaintiff did not submit any evidence that the parcel
would not yield such a return if the towers were repaired rather than
being replaced. Plaintiff also asserted that the town’s
decision violated the non-prohibition standard of the Act. The court admitted that this standard may be
violated by a single permit decision.[221]
But where there is not a general prohibition, the plaintiff bears a
very heavy burden of proof to show that the individual decision has
the effect of prohibiting the provision of wireless services. Again, the plaintiff failed to sustain its burden since it was already
providing such services from the existing towers. There was also not sufficient evidence to show
that reasonable alternative sties were not available. Both of those factors are critical if a TCF
operator is to prove that an individual decision prohibited or had the
effect of prohibiting wireless services.
Finally, the court found no evidence to support the claim of
discrimination in favor of other wireless operators even though the
Board had on 4 other occasions granted the discretionary permit required
to build a TCF. The Act does not require a local government
to waive its zoning requirements to allow competition, where a wireless
provider already has existing service that is properly permitted. Unless the plaintiff was able to show that
no other sites were available to provide competitive service, the town
does not violate the non-discrimination standard by enforcing its zoning
ordinance against a PCS provider.
[e] SNET Cellular, Inc. v. Angell[222] SNET sought a discretionary permit
to place a TCF tower on a parcel of land zoned for single family residential
use. It also sought a variance
since the maximum height for any tower was only 35 feet. Several hearings were held before the town’s zoning board of review.
During the pendency of the application, the town enacted a moratorium
ordinance on TCFs pending completion of a TCF plan.
The SNET application, however, was exempted from the moratorium.
The board eventually denied both the permit and variance requests. Shortly thereafter the town changed its zoning
ordinance to allow TCFs as of right in industrial districts, as special
uses in commercial districts and as accessory uses in any district if
attached to an existing structure.
SNET challenged the board’s decision as violative of both the
Act and Rhode Island law. This court adopted the same deferential
approach to applying the substantial evidence test as did the Fourth
Circuit, notwithstanding language to the contrary in several earlier
First Circuit opinions. The
court differentiated between a soft glance scope of judicial review
for decisions relating to compliance with the local zoning regulations
with a harder look at decisions affecting either the discrimination
or prohibition standards. In applying the substantial evidence test to
the board decision, the court reviewed the standards for the issuance
of both the discretionary permit and the variance.
In neither case did the applicant meet the requirements. The court reviewed the factors of compatibility
with neighboring uses, consistency with the purposes of the comprehensive
plan, compatibility with the orderly development of the town and environmental
compatibility. Given the soft
glance scope of judicial review, the court had no difficulty finding
that the town met the substantial evidence standard. As to the prohibition claim, the court
noted that these are essentially fact-specific inquiries where a total
local prohibition is not being challenged.
The parties had both sought summary judgment on this issue, but
the court determined that in this case, and in general, summary judgments
should not be granted unless the evidence on the impact of the regulatory
scheme has been presented to the local government.
Because SNET urged that both the permit and variance denials,
along with the zoning ordinance amendment prohibited SNET from providing
service, no one local entity was provided the technical evidence on
where the towers needed to be located.
Thus, a trial on the merits had to be conducted before the court
could determine whether the town’s actions prohibited the provision
of wireless services. Finally the court rejected the claim
that the town violated the Act’s requirement that an application for
a TCF be reviewed within a reasonable period of time.
In this case the time between the application being filed and
the final decision was 15 months. Because
the zoning board of review is made up of volunteer citizens, a city
official testified that setting hearing dates is often a lengthy process. Since the Act does not set a bright-line test
for determining reasonableness, the court determined that under the
circumstances involved here, a rather lengthy delay would not be unreasonable.
[f] New York SMSA Limited Partnership v. Town of Clarkstown[223] Three competing PCS providers sought
three separate permits to build TCFs at different locations in order
to remedy a lack of service in one portion of the town.
The town’s zoning ordinance clearly favors applications combining
locations in order to minimize the number of towers that have to be
built. In reviewing a competitor’s earlier filed application,
the town held several meetings in order to facilitate co-location.
An apparent agreement was reached with all of the competitors
to co-locate on the one tower. Nonetheless, the plaintiff went ahead with
its application for a separate tower, notwithstanding its earlier indication
that it would co-locate. After
a series of meetings, the town voted to
deny the plaintiff’s permit application, although it did not
approve the first application as the town was trying to work out some
problems with the location. Eventually
the first application was approved prior to the trial in this case. The Second Circuit generally takes
a harder look at local decisions under the Act, than the Fourth Circuit.[224] Nonetheless, the federal court is not to substitute
its judgment for that of the local government. The court first dealt with the prohibition
standard because plaintiff claimed that there would be a lack of wireless
services to a portion of the community.
Where the service gap can be filled with less intrusive means
than that proposed by the plaintiff, however, a local government may
deny a permit without violating the prohibition standard.
Here the availability of co-locating plaintiff’s facility on
the now-permitted site will avoid the problem of a hole in the service
area. The court found that a Board resolution
adopted after the initial decision to deny plaintiff’s permit satisfied
the in writing requirement. Likewise
the court found that there was substantial evidence in the record supporting
the denial decision. Numerous
board meetings and the policy underlying the ordinance minimizing TCF
locations were sufficient to uphold the decision.
[g] Cellular Telephone Co. v. Zoning Board of Adjustment
of Ho-Ho-Kus Borough[225] Plaintiffs sought discretionary permits
and variances in order to locate a TCF on Borough-owned land they had
leased for that purpose. The
land was located in a residential zone, but the existing site was being
used by the Borough for auto maintenance and storage purposes. The Board, after 2 years and 44 public hearings denied the variances
because they determined that the quality of existing service was sufficient,
there would be a detrimental impact on the neighboring properties and
that the visual impact of such a large structure on a small site would
be contrary to the comprehensive plan.
The plaintiffs claim that the effect
of the variance denials is to effectively prohibit wireless services
in violation of the Act. The
court rejected plaintiffs’ claim that the Board cannot hear evidence
on the quality of existing service within the community.
In this case, several residents made tape recordings of telephone
conversations to prove that the existing TCFs were providing sufficient
service. The plaintiffs attempted
to rebut that evidence with testimony of their engineers regarding holes
in the service area and the inadequacy of the existing facilities. In making their decision the board will have
to determine whether there is a “significant gap or gaps” in local service.[226] The township had denied a permit to
locate a TCF at the plaintiff’s designated site. The district court found that the decision violated the prohibition
provisions of the Act and was not supported by substantial evidence.
The Third Circuit applied a “significant gap” approach to resolving
prohibition claims. The provider must prove that such a gap exists
whereby the area is not being adequately provided with cellular service
and secondly, if such a gap exists is the provider’s plan the least
intrusive means to solve the problem.
As a general matter a gap exists “in personal wireless services
when a remote user of those services is unable either to connect with
the land-based national telephone network, or to maintain a connection
capable of supporting a reasonably uninterrupted communication.”[227] Under the Act’s prohibition standard, a reviewing
court is not required to apply the substantial evidence standard.
Instead the Act absolutely prevents a local government from engaging
in decisions that prohibit or have the effect of prohibiting wireless
services. Since the plaintiffs
provided evidence that there may be significant gaps, the town’s decision
to deny the variances cannot be upheld on a motion for summary judgment.
The court also reviewed the plaintiffs’
challenge that the board’s decision was not supported by substantial
evidence. Here the court adopted
a middle of the road approach to the substantial evidence test, neither
too deferential nor too intrusive.
Substantial evidence is such evidence “as a reasonable mind might
accept as adequate to support a conclusion.”[228] The court required the factfinder to explain
its reasons for rejecting or discrediting competent evidence supporting
a contrary decision. This is
not usually required of local zoning decision-makers under most state’s
law. The court found that the board’s findings
as to the negative impacts of the proposed TCF were supported by substantial
evidence because the board had reports from neighboring communities
on such effects as well as citizen testimony.
But the board’s decision that existing service was adequate,
based on the lay person testimony of several individuals who had taped
a few calls was not supported by substantial evidence.
The court also required the board, on remand, to apply New Jersey
law on the issuance of variances. The
board will have to follow the four step procedure of first identifying
the public interest at stake, second, identifying the detrimental effects
if the variance is issued, third, imposing conditions to minimize the
detrimental effects and fourth, balance the positive (public interest)
with the negative (detrimental impacts) factors.[229]
[h] APT Pittsburgh Limited Partnership v. Penn Township Butler
County[230] After searching for a suitable site
to locate a TCF in some hilly terrain, plaintiff selected a site located
in a rural residential zoning district.
The township amended its zoning ordinance restricting TCF towers
to the light industrial districts shortly after plaintiff’s search had
been completed. Plaintiff then sought a site within the allowed
districts but was unable to locate a technologically feasible site that
was available. Plaintiff then
sought a variance from the Zoning Hearing Board or such alternative
relief as the Board would give in order to allow the tower to be built. The board denied the permit and issued a written decision. In addition to making prohibition and
substantial evidence claims under the Act, the plaintiffs also alleged
that under state law, the ordinance impermissibly excludes TCFs from
the township where they are needed to provide effective wireless service.[231] It concurred with the holding in Ho-Ho-Kus,
that the substantial evidence test does not apply to a prohibition claim. The reviewing court is to engage in a de novo
review. Likewise, when the court
reviews the state law issue of exclusionary zoning as applied to a TCH,
de novo review, rather than the substantial evidence test is to be employed. Pennsylvania zoning law employs the
traditional presumption of validity, but with the caveat that proving
an ordinance that totally excludes an otherwise legitimate use effectively
rebuts that presumption.[232]
Once rebutted the burden shifts to the government to show that the ordinance
bears a substantial relationship to public health, safety and general
welfare. There is no de jure exclusion since TCFs are
allowed in several zones, but the plaintiff argued there was de facto
exclusion since those districts were either unavailable for use or unsuitable
due to topographic conditions. The
court found that the plaintiff’s evidence was not sufficient to show
that the ordinance was de facto exclusionary merely because one potential
site owner refused to lease a parcel of land for the TCF.
The fact that it might be more expensive to locate the TCF in
another location does not crate an exclusionary ordinance. Therefore, plaintiff did not sustain its burden of proof on the
state zoning law issue. The court applied the same rationale
regarding the prohibition claim as it did in Ho-Ho-Kus. While an individual
denial may constitute a violation of the prohibition standard, the plaintiff
must show that there is a significant gap in local service. The plaintiff had not presented evidence that
co-locations were not available within the township to overcome the
existing gaps in service. Without
that evidence plaintiff could not prove that such gaps exist and that
its proposal would be the least onerous means by which the gaps could
be overcome.
[i] Omnipoint Communications Enterprises, L.P. v. Newtown
Township[233]
The township denied the plaintiff’s request for permission
to locate a TCF on the top of an existing apartment building since it
was neither a permitted or accessory use in that zoning district. The district court granted the plaintiff’s
partial motion for summary judgment.
The Third Circuit gloss on the Act’s prohibition standard requiring
a party to show that there are significant gaps in service and that
the proposed TCF is the least onerous means of filling those gaps is
applied again. Because the trial court did not have that test
before it, the record was incomplete on the first issue, namely whether
there were significant gaps in service within the township. On that basis, the court remands to the trial
court to hold the required de novo proceeding under Ho-Ho-Kus to make that determination.
There had been evidence before the township board that other
wireless providers had coverage without gaps.
If that proved to be true, it would effect both the finding of
a significant gap and whether less onerous alternatives were available.
The court refused to answer whether a violation of the Act would
provide the plaintiff with a Section 1983 cause of action since that
issue was not ripe given the required remand to the district court.[234]
[j] Omnipoint Communications Enterprises, L.P. v. Charlestown
Township[235]
Plaintiff executed a lease to co-locate
a TCF on an existing tower owned and operated by the Pennsylvania Turnpike
Commission in order to provide
continuous service along the Turnpike.
The township refused to issue a permit because the tower is located
in a rural residential zoning district and such towers are only allowed
in limited industrial districts. The
Commission tower was treated as a non-conforming use.
Evidence at the township hearing showed that other sites were
available that would deal with the alleged gaps in service. The court applied the Ho-Ho-Kus significant gap test to determine
whether the denial effected a prohibition of service. The township conceded that the only district
where TCFs are allowed would not fill in the gap in service along the
Turnpike. They also conceded
that co-locating the facility on the existing tower was the least onerous
means of filling in the gap. Given
those two concessions, the township clearly violated the Ho-Ho-Kus tests and thus prohibited
the plaintiff from providing service within the township. Thus the plaintiff’s motion for summary judgment
was granted. The court then dealt with the issue
of whether a Section 1983 cause of action was stated for a violation
of the Act. While the Act does
not expressly foreclose such actions, the court finds the Act sufficiently
comprehensive to infer congressional intent to find such a foreclosure. Because the Act provides for a clear, detailed
process that allows for a quick and complete remedy, the intent of Congress
appears clear that no other remedial devices are needed. The only remedy not authorized by the Act that
Section 1983 authorizes is the right to seek attorney’s fees. Since the Act is silent on the issue of attorney’s
fees the court felt that Congress intended not to allow such fees to
be recovered.[236]
[k] Cellular Telephone Co. v. Zoning Board of Adjustment
of Borough of Harrington Park[237] Plaintiff sought use and bulk variances
to place a TCF on a lot located in an industrial zone that was the site
of several existing non-conforming structures. After 6 hearings the board denied the variances. The district judge commented that the briefs
were worthy of a play by Pirandello and that a lot of the board’s statements
contained in a 36 page resolution were pretextual and not factually
supportable. Nonetheless, the
court upheld the variance denial decision under the Act’s substantial
evidence test. In addition, the court found that no state
law violation had occurred. Dealing with the state law issues first,
the court relied on Ho-Ho-Kus and its review of New Jersey variance
law. New Jersey reviews variances
using “positive” and “negative” criteria. The positive criteria stress how the proposed use will benefit the
public welfare while the negative criteria stress the potential detriment
to the public good as well as the inconsistency with the comprehensive
plan. The court found that the
board’s reasons for finding that the proposed use did not satisfy the
positive criteria were not supported by substantial evidence.
The board ignored the evidence of gaps in service and ignored
the plaintiff’s FCC license that created a prima facie case that the
services were in the public interest.
The court, nonetheless upheld the decision based on the board’s
concerns with the negative criteria for the issuance of variances.
The board found that the site was overutilized and its existing
uses inconsistent with the industrial zoning district. Testimony of the borough’s planners supported this finding and plaintiff
never provided any true rebuttal testimony relating to overcoming the
negative impact the TCF would have on the public welfare. Plaintiff also did not provide evidence to
support its assertions that this site was the only site available to
deal with its gaps in coverage. This
lack of evidence not only defeated plaintiff’s right to a variance under
state law but effectively conceded the argument that the denial decision
left significant gaps in service.
The court also chided the board for its consideration of radiation
emissions, since the Act clearly precludes local government’s from making
that a part of their decision-making process.
The court also overturned the board’s attempt to charge the plaintiff
with the costs of hiring an expert in the field of EMF radiation emissions,
since the board did not have authority to consider those issues.
[l] Vertical Broadcasting, Inc. v. Town of Southampton[238] Plaintiff leased a portion of a 50
acre parcel located in a single family residential district for the
purposes of constructing a TCF. The
lease was made contingent upon receiving town approval for the TCF. The land was presently being used as a sand mining operation.
Three other TCFs exist within a 3-mile radius of the proposed
site. Plaintiff sought a special
exception under the town’s zoning ordinance that allowed public utility
uses in residential districts upon issuance of such a permit.
The review process was halted by the town when it insisted that
plaintiff seek an interpretation from the town ZBA that its proposed
TCF tower was a public utility structure. The town then amended its zoning ordinance
requiring all TCF applicants to seek a zoning amendment to a newly-created
district that would allow public service uses.
Plaintiff then filed for the needed zoning change and a public
hearing was held. The ZBA then
required the plaintiff to file a environmental impact statement about
the proposed zoning change under the state’s environmental quality review
act. Six years after the initial request for a special
exception was sought, the town accepted the EIS submitted by the plaintiff.
The town, however, did not get around to actually denying the
zoning change until 1 year after the FEIS was submitted.
It submitted a 24-page report concluding that the TCF would have
adverse environmental effects, adverse effects of property values and
adverse affects on the character of the community.[239] Plaintiff then filed this 1983 claim against the town and the town board
arising from their treatment of his application. The town asserted that the claims under
the Act were time-barred because they were not filed within 30 days
of the decision to deny the zoning change.
While the court expressed some doubt that the 30-day period was
intended to have the effect of a statute of limitations, the plaintiff
did not appropriately brief that issue, so the court decided to go along
with several other federal district courts that had treated the period
as a statute of limitations.[240] Thus, claims under Section 332 of the Act were
dismissed. Plaintiff also asserted
claims under the prohibition standard contained in Section 253 of the
Act. But the court concluded
that plaintiff had not asserted a cause of action under that section. The type of action challenged by the plaintiff
clearly falls under Section 332 and not under Section 253. Plaintiff also brought claims under
the various provisions of the civil rights act including sections 1981,
1982 and 1985. The court found
that 1982 and 1983 only deal with racial discrimination claims that
were not involved in this case. Thus,
it concluded that those claims were frivolous.
It also dismissed the 1985 claim since that conspiracy statute
also requires a finding of racial motivation or animus.
But as to plaintiff’s 1983
claim the court refused to grant the defendants’ motion to dismiss. The 1983 claim was based on two separate constitutional violations,
equal protection and due process. The
equal protection claim is the classic selective enforcement or treatment
claim that is normally very hard to prove. Since this case was decided prior to Olech, the court treated the
essence of such a claim as involving an element of malicious or bad
faith intent to injure.[241]
At this preliminary stage of the litigation, the court was willing to
allow the plaintiff to prove his case of improper motive. The due process claim was judged under
the Second Circuit’s reasonably strict view of what constitutes a protectible
property interest.[242] Only a clear entitlement to the relief sought
will be protected under the due process clause. What is a protectible property interest is
a question of law. In most cases
there is clearly no entitlement to a proposed zoning change, such as
that requested by the plaintiff. The
plaintiff sought to overcome the general rule by asserting that the
Act created an entitlement as to TCFs.
While the Act created various procedural and substantive hurdles
that the local government must meet, it did not create a vested right
to a permit under all circumstances. This would be the case even if the court found
that plaintiff was entitled to be reviewed under the earlier zoning
ordinance that merely required the issuance of a special exception. In that case as well, there is no entitlement
to a discretionary permit. The due process claims against the board
members who allegedly demanded bribes was also dismissed because there
was no entitlement to the zoning change underlying the alleged solicitation
of the bribes. The court
also refused to dismiss the claim that the zoning ordinance amendment
requiring plaintiff to seek a zoning change since further evidence was
needed to prove whether the ordinance bears a rational relationship
to a legitimate governmental objective.
[m] Airtouch Cellular v. City of El Cajon[243] The city’s zoning ordinance allowed
TCFs as a conditional use in a number of zoning districts. Plaintiff sought a CUP to construct an array
of dishes and towers on and adjacent to an existing water tower located
in a single-family residential district.
The Planning Commission held several public hearings and heard
from many neighbors who opposed the CUP.
The commission recommended that the CUP be granted.
The neighbors sought review of the decision by the City Council. After further public hearings, the council
voted to deny the CUP and listed 7 reasons to support its decision.
Plaintiff then brought this action claiming that the denial decision
was not supported by substantial evidence, discriminated against the
plaintiff and violated the non-prohibition standard under the Act. The majority of Act litigation has
occurred on the East Coast, but since the Act, in essence creates a
federal common law relating to the three standards, the California district
court follows the lead of the earlier decisions of those courts. In finding no violation of the substantial
evidence standard, the court relied on the Ho-Ho-Kus definition of substantial evidence,
namely that it is more than a scintilla and such evidence as a reasonable
mind might accept as adequate to support a conclusion. Because the parties stipulated that the city
would bear the burden of proof that the denial decision was based on
substantial evidence, the court did not have to opt for the two competing
views on allocating the burden of proof.[244]
The court found that aesthetic concerns by themselves would not constitute
substantial evidence to support a denial decision. But in this case the city had voice concerns about placing TCFs
in residential districts and the neighbors had experienced some inconvenience
from the existing TCF located on the proposed site. This was sufficient under the substantial evidence standard to uphold
the decision. The court also found that the non-discrimination
standard was not violated even though the city had approved a TCF on
the site about 2 years prior to plaintiff’s application. The city’s concerns about over-intensive uses
in residential districts was sufficient to show no discrimination between
the earlier granted and plaintiff’s rejected CUP. There had been no community opposition to the prior CUP application
while in this case there had been substantial opposition, based in part
on the experiences with the TCF already in place. On the prohibition issue, the court
agreed with the Second and Third Circuits, that the standard is whether
the decision creates a significant gap in service even if the challenged
decision is an individual permit decision.
The city had urged that the views of the Fourth Circuit,[245]
requiring a TCF provider to show a blanket or general prohibition in
order to show a violation of the Act be adopted.
In determining whether there is a significant gap or gaps in
service, the focus is on the protection of PCS users, not PCS providers. Evidence of the plaintiff’s own witnesses showed
that other sites were available, even if they were not as desirable
as the proposed site. The court
here placed the burden of proof on the plaintiff to show that the prohibition
standard was violated, notwithstanding the fact that the overall burden
was on the city to show that the Act was not violated. The evidence did not show that there would be significant gaps in
service for plaintiff’s users nor was there an absence of alternative,
feasible sites. Plaintiff also alleged equal protection,
substantive due process and regulatory takings claims. The court had no difficulty dismissing all
of those claims as well. The
equal protection claim was a derivative of the discrimination claim
because of the earlier permit approval received by a competitor.
The city, however, only needed to show that it had a rational
basis for distinguishing between the two applicants.
The evidence that supported no violation of the discrimination
standard clearly was sufficient to meet the rational basis standard
under the equal protection clause.
On the substantive due process claim, plaintiff would have to
show that the decision had no substantial relationship to the public
health, safety, morals or general welfare.
That could be proven under these circumstances through evidence
showing improper motive, racial or personal animus by city officials.[246] There was no such allegations made in this
case. On the regulatory takings
claim, the plaintiff made the novel assertion that the denial decision
constituted a Lucas
taking of its rights under its FCC license.
The court does not decide the thorny issue of whether a FCC license
constituted a property interest under the 5th Amendment,
since it found that plaintiff was able to operate under the license
through two existing TCFs in the city.[247] In addition, because the plaintiff had not
been able to show that other sites were not available, it could not
prove that the denial decision had decreased the value of the FCC license.
[n] Telecorp Realty, LLC v. Town of Edgartown[248]
Plaintiff sought to co-locate its equipment
on an existing TCF tower. They
sought the required discretionary permit from the Planning Board.
The board denied the permit giving 4 reasons including overloading
the tower, locational difficulties, aesthetic impacts and public health
concerns. The plaintiff sued claiming the decision violated both the
substantial evidence and non-discrimination standards of the Act.
The court determined that the board’s
decision was not supported by substantial evidence. It applied the traditional test for what constitutes
substantial evidence, that being whether a reasonable mind might accept
as adequate the evidence submitted in support of the conclusion. The
only evidence regarding the potential overloading of the tower was submitted
by the plaintiff and supported its view that the tower could easily
support plaintiff’s additional structures.
The board engaged in no independent study to prove otherwise. The locational difficulties reason also was
not supported by substantial evidence since the board had approved three
other PCS providers placing facilities on the tower without any objection
that the site created problems. Assertions
that the site is not the best site and that there are other alternatives
by themselves did not meet the substantial evidence test. Finally, the court agreed with a number of
other decisions that generalized concerns about aesthetic and visual
impacts of the tower are not sufficient under the substantial evidence
test.[249] In fact the record evidence showed that the
board felt that the configuration proffered by the plaintiff’s was less
visually disturbing than the facilities already utilizing the tower. The court, in general, views the Act as creating
a policy to prevent local governments from doing what the town was doing
here, preventing a TCF from operating because of unquantifiable local
concerns that would, if allowed to prevail, prevent companies from providing
modern communications facilities to the citizenry. The court seemed to apply a healthy skepticism to the town’s decision
to deny the permit.
[o] Omnipoint Communications, Inc. v. Planning & Zoning
Commission[250]
This is another challenge to a permit
denial based on the lack of substantial evidence in the record. Plaintiff sought to remedy several gaps in
its service by constructing a TCF on a commercially zoned tract adjacent
to an interstate highway. The
commission requested an independent peer review study as required by
the town’s zoning ordinance for TCF permits.
The commission voted to reject the permit application based on
its finding that the existing tower upon which the facility was to be
located cannot support the additional weight.
Several other reasons were given by the commission when it notified
the plaintiff in writing of its decision. The court applied a “hard look” approach
to its review role under the Act’s substantial evidence standard. The first two stated reasons for rejection
related to adverse neighborhood impact and visual obtrusiveness. The court, however, found no evidence in the
record to support those conclusions.
Instead it found evidence that plaintiff agreed to take steps
to avoid and/or minimize these negative impacts.
The court placed a difficult burden on the town to give objective
reasons for its findings on visual impacts without specifying how the
plaintiff could decrease those adverse impacts and still provide appropriate
levels of service. The court
found that the findings on the inability of the tower to support the
additional facilities was also not supported by substantial evidence.
The commission noted that no existing tower could support the
proposed facility but that could not serve as a basis for its finding
that the tower sought to be used could not support the additional equipment. In fact, the zoning ordinance encouraged PCS
providers to co-locate, yet the commission ignored that policy in reaching
its conclusory findings. The court also found no evidence to support
the commission’s finding that the tower would be located closer than
500 feet to an existing residential structure.
The court appeared to be re-trying the case de novo under the
rubric of the substantial evidence test.
The cases in the past few years have ranged from a “soft glance”
to a “hard look” to even a de novo review under the substantial evidence
test. This decision appears
to go about as far any in second-guessing a municipal decision not to
allow a TCF. In a subsequent order, the court awarded
attorney’s fees to the prevailing plaintiff under § 1988 assuming without
discussion that plaintiff had a § 1983 cause of action for violation
of the Act.[251] It did find that the time spent by plaintiff’s
counsel was excessive and to reduced it by 20%. The billing rates of between $ 100/hour for
associates and $ 300/hour for partners was deemed appropriate for the
area.
[p] APT Minneapolis, Inc. v. Eau Claire County[252]
Plaintiff sought to construct a TCF
on land owned by the City of Eau Claire. The location was chosen because
it would fill a gap in service along a heavily-traveled section of interstate
highway. The land, however,
was located in an unincorporated area of the county.
The parcel was within an airport zoning district that did not
allow a tower of the height proposed by APT.
APT therefore filed for a variance from the height restrictions. The county had previously allowed the city
to construct a tower on the same parcel after the FAA determined that
the tower would not pose a threat to air navigation.
A similar FAA finding was submitted by APT regarding its proposed
TCF. The county refused to issue
a variance for the second tower but did grant a variance for a single
tower, either the existing one or a replacement tower that would be
as high as the proposed second tower.
APT refused to co-locate and brought a second variance application
that at first tabled until such time as APT could produce evidence that
co-location was not feasible. Such evidence was produced, but the board voted
to deny the variance and sent APT a written notice stating the reasons
for the denial. In applying the substantial evidence
test, the court found that the notice was sufficient even though it
did not tie in the reasons with specific findings based on the record. One of the reasons given for denying the variance
was self-imposed hardship created by APT that defeated a finding of
unnecessary hardship. In most
variance cases unnecessary hardship requires a finding that there would
be no reasonable use of the parcel in the absence of the variance. That standard is inapplicable here because it is city-owned land
under a lease to APT that is already being used for a TCF. Since APT rejected the offer to co-locate or
build a replacement tower, the county determined that it had suffered
no hardship. The court agreed
that there was substantial evidence in the record to support the county’s
hardship rationale. There was
no evidence that building a replacement tower or reinforcing and expanding
the existing tower were not feasible alternative uses for the parcel.
The court aligned itself with those courts that assign the burden of
proof to the party challenging the local decision, further buttressing
its conclusion that the county’s decision complied with the Act.[253] APT also alleged that the decision
violated the non-discrimination standard of the Act. Only unreasonable discrimination is prohibited under the Act and
there was no evidence in the record to show that the county had granted
variances to other PCS providers under similar circumstances. Because there was a legitimate basis for the
county to deny the variance due to a lack of unnecessary hardship, it
is not unreasonably discriminatory for the plaintiff to have been denied
the variance even though its competitors have been allowed to provide
service within the area covered by the proposed tower. Finally the court found that the variance
decision did not have the effect of prohibiting the provision of PCS.
There was no evidence in the record to show that this was the only site
that could fill in the significant gaps in service alleged by APT. Even if there were such gaps, however, the
decision by the county to allow co-location on a single tower, acted
to fill in those gaps. It was
APT that created the gap by not acceding to the variance order authorizing
a single tower at a height meeting the APT request.
[q] AT&T Wireless PCS, Inc. v. City of Atlanta[254] AT&T received an administrative
permit to construct a TCF. The
permit was revoked and AT&T was instructed to seek a special use
permit. The permit was denied by the City Council that
did not provide a written reason or reasons for the denial. They sought relief under the Act. The district court found that the city violated
the Act because its decision was not supported by substantial evidence
in the record. The sole issue
on appeal was whether AT&T had stated a cause of action under §
1983 so that it would be entitled to recover attorney’s fees under §
1988. The court analyzed whether the Act
created a private right enforceable under § 1983. The court applied a three-part test to determine whether that right
exists.[255] The court must determine whether Congress intended
that the provision in question benefit the plaintiff. Secondly, the plaintiff must demonstrate that
the asserted right is not so “vague and amorphous” that its enforcement
would strain judicial competence. Finally,
the statute must unambiguously impose a binding obligation on the States.
The Act clearly was intended to protect PCS providers by eliminating
state or local impediments. Therefore,
AT&T, as the victim of an inadequately-justified decision, was an
intended beneficiary. The Act
provided clear guidelines for the local governments in order to comply
with its requirements. Finally, the Act umambiguously imposed a binding
obligation on the States to comply with the Act’s various standards.
The court also found that the Act does not show a congressional
intent to preclude a separate remedy under § 1983.
There was nothing in the Act to impliedly preclude the application
of § 1983. The Act also does not have a remedial process that evinced an intent
to preempt all other remedies that would otherwise be available. Thus, a § 1983 cause of action can be stated
by a PCS provider where a local government violates the Act.[256]
[r] Omnipoint Communications MB Operations, LLC v. Town of
Lincoln[257] In 1997, the town, acting through its
town meeting structure, adopted a TCF overlay ordinance in order to
preserve the unique characteristics of the town. The overlay district consisted of six parcels scattered through
the town. Two of the parcels
are owned by the town and the other four are owned by various non-profit
organizations. The ordinance required TCF operators to get a discretionary
permit and meet a number of performance standards before a TCF could
be erected. Omnipoint sought to lease a portion of a parcel
owned by one of the non-profits in order to serve the northern part
of the town and a major thoroughfare that traversed through the town. The non-profit, however, refused to lease a
portion of its parcel. Omnipoint
also contacted various other property owners outside of the overlay
district. It finally executed a lease with a NCU in one
of the town’s residential districts.
It then sought either a use variance or a discretionary permit
to expand a NCU from the town. After
a public hearing, the town’s board of appeals denied either of the two
requests on the basis that it did not have the power to amend the zoning
ordinance by placing a TCF outside of an overlay district. Omnipoint argued that the board’s decision
was not supported by substantial evidence. The court applied the classic definition of substantial evidence,
namely whether there is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
The board’s decision did not violate the substantial evidence
test since it was based on a reasonable interpretation of the town’s
TCF ordinance. The court also found that the board acted reasonably
in not expanding the existing NCU into a different type of use. The operation of a garage and gas station is
not the same as a TCF. The court
will defer to the board’s interpretation and application of its own
zoning ordinance. Omnipoint also argued that the decision
violated the prohibition standard by creating significant gaps in coverage
within the town. Relying on
the Ho-Ho-Kus
reading of the prohibition standard, the court determined that individual
decisions may violate the standard even where the town allows some TCFs. Plaintiff presented evidence that the only
allowable site to serve the northern sector of the city was unavailable. The city could not rebut that evidence and
could not counter the plaintiff’s testimony that there were gaps in
service. The existence of a
significant gap in service constitutes a violation of the prohibition
standard. The existing TCF ordinance, as interpreted
by the board, cannot remedy the gap problem since it did not designate
any other site that could fill the gap.
Thus, the town’s ordinance and decision violated the Act. The remedy granted is a mandatory injunction
requiring the town to within 30 days issue any discretionary permit
and/or variance that will permit Omnipoint to erect its TCF on the site
of the NCU.
[s] Cellco Partnership v. Town of Douglas[258] Plaintiff sought to locate a TCF within
the town limits. At that time
the town had no TCFs, with service being provided by TCFs located in
nearby towns. Under the town’s
zoning ordinance, TCFs are not a permitted use and in addition, no structure
may be built higher than 35 feet. In
addition there is no variance provision in the ordinance.
Nonetheless, plaintiff sought a permit to build the TCF on a
hill, adjacent to the town’s water tower.
The permit and variance applications were denied and upheld on
appeal. The ZBA in its written statement provided several
reasons why the permit and variance should be granted, but then stated
that to grant the application would be to nullify the terms of the zoning
ordinance. Plaintiff argued that the decision
violated both the substantial evidence and non-prohibition requirements
of the Act.[259] The court only dealt with the substantial evidence
claim, since it found that the ZBA had made findings that supported
the issuance of the permits. The
town tried to rely on a post-decision affidavit by one of the ZBA members,
but the court disallowed that evidence as contrary to the clear congressional
intent to require the town to fully elucidate its decision based on
the record before it, as opposed to some post hoc rationalizations.
The court also noted that since the town ordinance did not allow
TCFs anywhere, a single denial of a permit and variance request was
sufficient to violate the prohibition standard as well.
Thus the town was ordered to issue the necessary permits and
variances to allow the TCF to be constructed.
[t] Freeman v. Burlington Broadcasters, Inc.[260] A radio broadcaster and a volunteer
fire and rescue service received a permit to construct a tower on the
express condition that it not interfere with TV reception in homes in
the area. Subsequently, a PCS provider co-located its
facilities on the existing tower. In
response to a number of radio frequency interference complaints by residents
of the town, several notices of violation were issued and were appealed
to the town’s ZBA. The ZBA found
that there was continuous and widespread radio frequency interference,
but it refused to enforce the permit condition since it determined that
the condition was preempted by federal statutes and regulations dealing
with radio frequency interference.
Neighbors and the town that issue the permit sought state judicial
review. That case was removed to the federal court. The First Circuit initially had to
determine whether the district court had subject matter jurisdiction
over the issue. As long as there
is a well-pleaded claim arising under federal law, the district court
has subject matter jurisdiction. The
court carefully scrutinized the nature of the federal preemption claim,
that was raised not in the complaint but as an affirmative defense. It concluded that the case was properly removed
based on the federal preemption defense. The court also noted that the district court should not hear the
state law claims asserted by the plaintiff. The federal preemption defense is based
on the occupation of the field prong of preemption analysis. The field is the area of regulation of radio
frequency interference. In order
to occupy the field the federal regulation must be so pervasive as to
make reasonable the inference that Congress intended to leave no room
for state or local regulation. In
reviewing the extensive FCC regulation of radio broadcasting, the court
concluded that federal law had occupied the field of radio frequency
interference. The FCC statutes and regulation clearly evince
an intent to occupy the entire field of technical matters relating to
radio broadcasts. That obviously
included the sub-field of interference.
The FCC had taken the position that its regulations preempt the
field as well. That position
is entitled to Chevron
deference so that if it represented a reasonable accommodation of the
conflicting policies that were committed to the agency’s discretion
by law, a reviewing court will not overturn those policy choices. The plaintiffs tried to argue that under
the Act, Congress did not intend to fully preempt local decision-making
for TCFs. But this case involved
a party with an FCC license to engage in radio broadcasting and only
secondarily a PCS provider covered by the Act.
Thus, the ZBA was correct in finding that it could not apply
the permit condition requiring the permit holder to resolve radio frequency
interference issues.
[u] Adelman v. Town of Baldwin[261] In another non-TCF case, plaintiff
sought a CUP to construct a television tower.
The town's zoning ordinance authorized towers as a conditional
use in highlands and rural districts.
Plaintiff planned to devote most of the 325 acre tract for open
space and public, passive recreational uses.
A vote to have a moratorium on the permitting of all towers was
instigated by a community organization, but the electorate defeated
the moratorium ordinance. The
Planning Board then held public hearings and voted to conditionally
approve the CUP. A neighbor
appealed to the ZBA which affirmed the decision on a 3-2 vote. Judicial review of CUP decisions focus
on the Planning Board's actions, not those of the ZBA or the trial court.
The substantial evidence test is used.
At the Board level, the applicant bore the burden of proof to
show that the standards for a CUP have been met.
While there was some initial confusion regarding the allocation
of the burden of proof, the Board was properly instructed before it
rendered its final decision on the burden of proof issue. The neighbor
also asserted that members of the Planning Board were biased in favor
of the CUP applicant. The
chair of the Planning Board had disclosed prior to the hearing that
he was employed by a corporation in the business of building and servicing
antennas, although the business had no dealings with this particular
tower proposal. The Board allowed
the chair to continue and at the time of the CUP decision, the chair
was no longer employed by that corporation.
The court found that there was no conflict of interest, nor were
there ex parte contacts by the chair, who had technical expertise on
the subject matter of the CUP application that was imparted to other
members of the Board. There was no extrinsic evidence relied on by
the Board when it rendered its decision.
The court also held that the plaintiff had not sustained his
burden of proof to show that the zoning ordinance was not consistent
with the comprehensive plan. The
plaintiff's argument was that the ordinance by allowing towers in a
wide area violated the plan's objective of maintaining the rural character
of the town. The court, however, noted, other provisions
of the plan that clearly favored the free and unfettered use of land,
essentially taking a minimalist approach to land use controls. By not having many restrictions on land use, the ordinance was
consistent with the plan's free use goals.
Finally the court found that there was substantial evidence in
the record to support the CUP decision, especially since the court was
not to substitute its judgment for that of the Board's. There was testimony supporting the planned height of the tower,
the lack of adverse effects on the surrounding property values and conditions
designed to mitigate any negative externalities.
[v] Telespectrum, Inc. v. Public Service Commission of Kentucky[262] This case presented a different perspective
on the far-reaching effects of the Act, because it involved not a local
governmental entity but a state agency.
Plaintiff applied to the PSC for a certificate of public convenience
and necessity to construct a TCF. The
proposed site is in a rural, unincorporated area, not governed by any
zoning ordinance. The nearest
home is located about 412 feet from the proposed tower site.
Plaintiff presented evidence that this was the best site to provide
PCS service for the surrounding areas.
Both a neighbor and a nearby town filed objections with the PSC. The PSC denied the permit with a written statement
saying that it had to be cognizant of the interests of nearby residents
in balancing the public and private interests involved in issuing a
certificate. The PSC argued that the federal court
lacked jurisdiction under the 11th Amendment to hear this
case. Since plaintiff was only
seeking equitable relief, however, the case fell under the Ex Parte Young exception to
the application of the 11th Amendment. [263] Where a party is seeking to direct state officials,
in their official capacity, to permit it to build the TCF, the claim
fits within that exception. The
court also found that the Act’s remedial scheme was not so pervasive
as to allow it to infer that Congress intended the Act to preclude potential
equitable remedies for redress violations of the Act.
The court easily found that the PSC
decision was not supported by substantial evidence as required by the
Act. Applying the traditional definition of substantial
evidence, the court found no credible evidence in the record to justify
the permit denial decision. The
only evidence in the record was the testimony and letter of the neighbors
who stated that the TCF would cause a diminution in their property values
and would cause them to be exposed to harmful microwave emissions. Concerns about health risks are not relevant
under the Act, and the unsubstantiated claims about loss in property
value cannot sustain the decision.
Plaintiff had placed into evidence expert testimony from a real
estate appraiser that contradicted the layperson conclusions of the
neighbors. Since the PSC made no written statement claiming
other shortcomings in the permit application and the evidence in the
record did not support their conclusion, the plaintiff was entitled
to its equitable relief.
[w] SBA Communications, Inc. v. Zoning Commission[264] SBA is in the business of locating
and building TCFs that it then leases space to the various PCS providers. It determined that a gap existed in coverage
around a major highway interchange.
It located a parcel of land and sought a permit to build a TCF. The parcel was located in an industrial and
commercial zone that allows TCFs with a discretionary permit. There are some nearby residential uses. After reducing the height of the proposed tower
to 93.5 feet, the Commission still denied the permit. It provided a written statement for the denial
decision. Two of the stated
reasons for denial was the failure of SBA to look for co-location alternatives
and the diminution of property values on the nearby residential uses. The court noted that under Oyster Bay
the level of scrutiny of the local zoning decision is less deferential
than would usually be the case for federal court review of such decisions. Under Connecticut law, when a board reviews
a discretionary permit application, it must grant the permit if the
proposal meets the relevant standard enumerated in the ordinance. The court closely examined all five of the
reasons given by the board to justify its denial decision. Without deciding the allocation of the burden
of proof left open in Oyster Bay, the court accepted the board’s conclusion that SBA failed to exhaust
co-location alternatives as a grounds for denying the permit. The applicant must show that they examined
alternative sites and the city identified several existing utility poles
that might support a TCF. The
applicant, however, need not look at every possible site identified
by the city before it can get a permit.
While the diminution in property value factor may generally be
considered in this case the language used by the city raised some questions
since it spoke in terms of perceptions relating to property value diminution.
A decision cannot be based on perceptions regarding property
values, but must be based on competent evidence that the TCF will diminish
such values. The only evidence
supporting that finding was extra-record evidence that should not have
been considered. Thus there
was no basis for denying the permit on this ground.
The court further found that the other reasons were improperly
relied on including concerns regarding the proper FCC standards, concerns
regarding health and safety risks and a failure to provide plans for
the antennae structures. Since there was substantial evidence in the
record based on SBA’s failure to exhaust co-location alternatives with
several identified sites, the court granted the defendant’s motion for
summary judgment. The court
noted that when SBA re-submits its application with a study of the co-location
identified by the commission, the commission will have to issue the
permit unless new evidence is found providing additional grounds to
deny the permit.
[x] Northeast Towers, Inc. v. Zoning Board of Adjustment[265] Plainitff owned a .75 acre tract of
land located in a residential zone.
There was a home on the parcel and an existing 97 foot tall tower. The tower was a NCU. The plaintiff expanded the number of antennae
on the tower over time. In 1993
it sought a variance to replace the existing tower with a higher tower.
It also needed variances from the setback and side yard ordinance
requirements. There were 3 other towers within a tenth of a mile from the plaintiff’s
tower. The variance application
was denied by a unanimous vote. The
ZBA found that its location in a residential zone and the expansion
of the NCU were inconsistent with the ordinance and the plan. Plaintiff had also admitted that alternative
sites were available to co-locate its antennae. The trial court found that the proposed use was an inherently beneficial
use under New Jersey law and would not affect nearby properties to a
great extent because of the existence of the NCU tower and therefore
reversed the ZBA decision. While
some federal cases under the Act have found that TCFs are inherently
beneficial uses, this court found that the New Jersey Supreme Court
had rejected that status for TCFs.[266] Instead
a TCF may be an inherently beneficial use if its location is appropriate.
In this case, the location in the midst of a residential zone,
made the tower a non-beneficial use. As such, the denial of the variance was justified
and supported by substantial evidence in the record.[267] In addition, greater deference was owed to
board decisions denying variances than to board decisions granting variances.
The trial judge clearly substituted his judgment for that of
the ZBA’s and thus the ZBA decision should be reinstated.
[y] Stephenson v. Town of Garner[268] Plaintiff executed a lease option with
Sprint for the location of a TCF. The
option was conditioned on the grant of a CUP from the town. Sprint filed its CUP application, but after
local opposition arose, the town voted to deny the application. Sprint sought judicial review that led to a
reversal and remand. The second
public hearing also led to a denial of the CUP.
Judicial review followed and to resolve the problem the city
offered Sprint a lease for the use of its existing water tower to site
the TCF. Sprint agreed to the consent judgment and the
plaintiff instituted this suit based on the theory that the town had
interfered with the contractual relationship between Sprint and the
plaintiff. The court dismissed an alternative
claim that the city by intentionally refusing to follow the court’s
first remand decision engaged in unfair and deceptive trade practices. The remand order merely required the town to
conduct further proceedings. It
did not order the town to issue the CUP.
Thus there was no unfair trade practices action. As to the interference with contract
claim, the court found that the individual aldermen were immune from
liability under Scott-Harris
where they were taken action in the sphere of legislative activity. The CUP determinations were non-ministerial
in nature, even after the first remand.
The CUP decision is clearly discretionary, requiring the aldermen
to act in a legislative manner. Furthermore,
the actions were not illegal since they followed the appropriate procedure
for the review of CUP applications.
The claim against the town, however, involved more than the CUP
denials. It entailed the execution of the lease with
Sprint to locate the TCF on a town-owned water tower. The court found that at this summary judgment stage the plaintiff
had made a prima facie case of satisfying all the elements of the tort
claim. As to the town’s immunity,
the court found that the action of leasing governmental property is
a proprietary function for which immunity did not attach. Thus as to this final claim the court remanded
for a trial.
[z] APT Pittsburgh Limited Partnership v. Lower Yoder Township[269] APT, believing that it needed to fill
a gap in coverage, leased a parcel of land located in a conservation
district in the township. It
then applied for a building permit to construct a TCF. The parcel already contained a water tank. The permit was denied and APT sought a variance
from the Zoning Hearing Board. It
also challenged a number of township ordinance provisions as they affected
its plans. The township allowed
TCFs in its industrial district. APT
showed that several other TCFs had been built in the conservation district.
APT did not provide any evidence regarding its alleged gap in
coverage, nor specific information about the location of other TCFs.
The board denied the variance request in writing and APT then
filed this action alleging violations of the Act and state law. The court interpreted the Act as a
compromise between federal and local land use powers. The result was that local governments retain their primary land
use control function subject to the substantive standards of non-prohibition
and non-discrimination and the procedural standards of having a writing
and applying the substantial evidence test to review those decisions. The court rejected the APT prohibition claim
because the ordinance on its face allowed TCFs in the light industrial
district. While not naming TCFs
specifically the ordinance allowed broadcasting, radio and TV station
facilities and then had a catchall provision allowing other compatible
uses. The ordinance did not
have the effect of prohibiting TCFs because the provider failed to sustain
its burden of proof that there would be a significant gap in coverage
should the TCF not be located where the provider so designated.
There was no evidence in the record to support a finding of a
gap and substantial evidence to show that wireless services were available
within the township. Even if
the provider can show a significant gap, the provider must show that
its proposed TCF will be the “least intrusive means” of filling the
gap.[270] The court rejected the attempt by APT to file
a post-hearing affidavit to buttress its case.
Even if the affidavit was admitted, however, there was still
substantial evidence in the record to support the conclusion that wireless
service was not prohibited by the township. On the non-discrimination claim, the
court again placed the burden of proof on APT to show discrimination
in its denial decision and that the discrimination was unreasonable. Proving discrimination required APT to show
that providers of “functionally equivalent services” were treated differently.
There was no evidence in the record to prove that competitors
were allowed in construct TCFs in the conservation district.
In fact, the only evidence adduced showed APT had been allowed
in build a TCF in the zone. It
was not unreasonable for the township to determine that after it had
permitted a number of TCFs that the cumulative impact was such that
it should not allow any more. Finally, the court applied the substantial
evidence test to the decision, noting that the court should grant a
degree of deference to the local decision-maker. The substantial evidence test did not apply to the non-prohibition
and non-discrimination standards, but applied to the decision not to
grant the variance. Again the
burden of proof of entitlement to a variance is placed on the applicant. APT did not show unique physical circumstances
or the existence of unnecessary hardship that was not self-imposed.
There was evidence concerning the impact on the neighboring properties
that also supported the board’s decision.
The court stressed the fact that APT failed to produce any evidence
that it considered alternative tower heights and designs or alternative
sites. Without those factors, it will be hard for the provider to claim
that it is entitled to a variance.[271]
[aa] Proper v. Southwestern Bell Mobile Systems[272] SBC received a special use permit to
construct a 250-foot TCF and an accessory building in an agricultural
and rural residential district in the Town of Duanesburg. A building permit ensued and a neighbor challenged both permits
as violations of the town's zoning ordinance.
The town refused to follow up on the challenge so the neighbor
sued SBC directly seeking injunctive relief preventing them from using
the TCF until the violations were corrected. The zoning ordinance had a maximum
building height limitation of 35 feet.
But under the terms of the zoning ordinance the TCF was treated
as being a public utility structure and not a building.
The plaintiff's interpretation would require the TCF owner to
seek both a special use permit and a variance, a result that would not
be reasonable given the specific requirement that TCFs need a special
use permit. The court also found that the increase in the
number of antennae placed on the tower did not require SBC to seek additional
permits. None of the issued
permits placed a limit on the number of antennae that could be placed
on the tower. Thus the neighbor
was not entitled to injunctive relief since no ordinance violation was
proven. [2]
Group Homes
[a] Marriott Senior Living Services, Inc. v. Springfield
Township[273] Marriott wanted to build a multi-unit
senior assisted living center in a portion of the township zoned for
single-family residential uses. It
began negotiations with township officials in January 1996. The applicable zoning district did not allow
such a use, although it did allow for non-profit educational institutions
and family day care home uses through a discretionary permit process. Plaintiff filed an informal sketch plan with
the township as a prelude to seeking a zoning change. Further negotiations led Marriott to change the proposed structure
from a three to a two-story building. Marriott was informed by a member of the board of commissioners
that there was no support for the proposed zoning amendment and sketch
plan and it would be futile to move ahead with the proposals. Plaintiff then sent a demand letter to the township asserting that
they had not met the requirement of the Fair Housing Act Amendments(FHAA)
of making a reasonable accommodation to the needs of the prospective
handicapped residents of the senior assisted living center. The township argued that the plaintiff’s
case was not ripe for judicial review since they had neither filed a
formal request for a zoning change, nor had they submitted a preliminary
or final sketch plan. Under
the FHAA, the party claiming a lack of reasonable accommodation must
afford the local authority a reasonable opportunity to consider the
project in reasonably final form, to hold public hearings and to give
reasons for its decision. In this case the lack of a preliminary sketch
plan submission by Marriott deprived the township of an opportunity
to review a formal proposal. Even
though Marriott received both formal and informal notice of the board’s
lack of support for the project, that does not excuse them from going
ahead with the proposal. Thus,
the as applied FHAA case was dismissed on ripeness grounds. Marriott also asserted a facially discriminatory
FHAA claim against the township. Normally, facial invalidity claims are ripe for review. A facial FHAA claim requires the plaintiff
to show that the local ordinance treated someone protected by the FHAA
in a different manner than someone not protected.
There was no such showing in this case.
The ordinance merely listed the allowed uses within a single-family
residential zone without making any distinction between multi-family
units in general and multi-family units serving the handicapped. Thus, the court dismissed the facial invalidity
claim. The court did not dismiss
the disparate impact claims under the FHAA and the Americans with Disabilities
Act because insufficient facts were presented to the court to determine
whether the township’s zoning scheme, in fact, impacts disable or elderly
persons in an impermissible way.
[b] Borden v. Planning and Zoning Commission[274] An alcohol rehabilitation center was
a NCU in a residential zone. In
response to several changes to state mandated performance standards,
the center had to make some building changes.
The center met with town officials and discussed the best way
to accommodate the required changes.
Two options were raised, changing the zoning ordinance to make
the center a conforming use or changing the NCU provisions to allow
for an expansion of the facility. Eventually the parties agreed to allow the
building of a second story over the existing footprint of the building
if the center agreed to tear down another structure that was not being
used. Plaintiff was a neighbor of the facility who
brought this action for judicial review of that decision. The court, however, found that plaintiff had
not exhausted her administrative remedies and thus lacked standing to
sue. The court treated the eventual order as part
of a zoning enforcement action. Enforcement
actions are appealable to the board of adjustment. By not seeking administrative review of the
site plan approval decision, the plaintiff was not entitled to seek
judicial review of that decision.
[c] Welsh v. Town of Amherst Zoning Board of Appeals[275] Neighbors appealed the ZBA’s decision
to issue a use variance covering an 11-acre tract to allow the construction
of a 100 unit senior citizen housing complex. The area was zoned in a suburban-agricultural
district. Judicial review of
the issuance of a variance uses the substantial evidence test.
The evidence before the ZBA showed that the landowner could not
realize a reasonable return without the variance.
In addition, the parcel was located between two wetlands and
at a major intersection. The ZBA found that the proposed use would not
alter the essential character of the area and that the hardship was
not self-imposed. Thus the decision
to grant the variance was upheld.
[d] County of Charleston v. Sleepy Hollow Youth, Inc.[276] Plaintiff owned a private non-profit
organization that planned to operate a home for six to eight emotionally
disabled children. They applied
for a license from the state to operate such a facility. They leased a home in the county to house their group home. Neighbors sent letters to the state opposing
the issuance of the state permit. After
one rejection, the state issued the permit.
Under South Carolina law,[277]
where a local government objects to a proposed site for a group home,
a neutral third party must be appointed and a committee of the group
home owner and the government official have 45 days to locate an alternate
site. The final selection of a site is by majority
vote. No agreement could be
reached on a neutral third party and the plaintiff continued to prepare
the house for the residents. Eventually
the plaintiff abandoned the original site, but then sued the county
under the FHAA for damages. The FHAA clearly prohibits discrimination
against handicapped persons and those providing group homes for such
persons. Under the South Carolina
procedure for locating group homes there was no guidance or criteria
as to who may invoke the procedure.
The county instigated the procedure in response to neighborhood
opposition. The court examined the potential liability
of the county under three theories.
The first is whether the decision was based on intentional discrimination. The second is based on the application of a
facially neutral ordinance that as a disparate impact or discriminatory
effect. The third is where the
local government fails to make a reasonable accommodation for people
with disabilities. In order
to prove intentional discrimination, plaintiff need not prove evil or
hostile motive. A benign or
paternalistic motive may be sufficient.
But the plaintiff has the initial burden of producing evidence
to show that housing opportunities were motivated, at least in part,
by the disabled status of the potential residents.
The court, while hesitant to search the minds and hearts of the
county officials, nonetheless concluded that there was enough circumstantial
and direct evidence to allow the case to go to trial.
Neighborhood opposition to the group home residents clearly showed
a prima facie case of discrimination that would have to be explored
in depth at the trial. Thus the court remanded the damages suit for
a trial on the merits.
[e] Light of Life Ministries, Inc. v. Cross Creek Township[278] In 1980 the township enacted a zoning ordinance classifying lands
owned by a predecessor of the plaintiff as agricultural. The plaintiff’s predecessor was granted a CUP
to allow it to continue to operate a group home on the premises. In 1992, plaintiff purchased the facility from
the predecessor and in 1995 began to make improvements. Upon the complaint of several neighbors, the
township ordered the plaintiff to discontinue its use of the property. The trial court modified the township’s order
by limiting its effect to new or expanded operations, allowing the plaintiff
to continue operations at the then-current levels. Plaintiff then sought a CUP from the township
to expand its operations. The
township planning commission and the board of supervisors both granted
the CUP, but imposed 23 conditions.
Plaintiff challenged 5 of those conditions under the FHAA. A trial court found that 4 of the 5 conditions were not supported
by the evidence but remanded to the township for further evidentiary
support of the condition limiting residents.
The township held further hearings and reaffirmed this condition. In interpreting zoning ordinances,
Pennsylvania follows the canon of construction that favors the unfettered
use of land, in other words you construe against broader governmental
regulatory powers. Rather than
limit group homes to the definition of a dwelling or farm dwelling that
was contained in the ordinance, group homes are separately treated through
a conditional use provision. Thus,
the intermediate appellate court’s decision to deny the CUP was reversed
and the CUP reinstated with the conditions contained in the second township
decision.
[f] San Miguel v. City of Windcrest[279] The owners of a business for the care
of elderly persons operated out of their home were sued by the city
to limit the number of persons to be cared for to two, rather than the
four that were currently being cared for.
The injunction was based on the zoning ordinance’s limit of no
more than 2 individuals not related by blood, marriage or adoption from
residing in a single family dwelling.
The court found that the city had shown a probable injury because
it had shown that one of its ordinances was being violated.
Because monetary damages are not adequate in cases of ordinance
violations, the trial court properly found that the city had met its
burden of showing irreparable injury.
The court also rejected the owners’ claim that the issuance of
the injunction upset the status quo that is normally to be preserved
in cases seeking preliminary injunctive relief.
But since the status quo was a violation of the zoning ordinance,
a court did not have to countenance such violations.
Whether the ordinance is valid or constitutional will have to
await a trial on the merits. In
the meantime, the ordinance should be complied with.
Finally the court found that the potential remedy of contempt
of court should the owners not comply with the injunction was appropriate
since the injunction was to be removed should the owners receive a state
license authorizing them to operate an assisted care living facility
in their home.
[g] Mackowski v. Planning & Zoning Commission of Town
of Stratford[280]
Plaintiff owned two parcels of land
and wished to develop affordable housing units for the elderly. He filed a permit application with the commission
to build a 43 unit apartment building, dedicating 11 of those units
as affordable under the applicable statutes and ordinances. The commission unanimously denied the application
giving several reasons for its decision including inconsistency with
the general plan, effect on nearby historic structures, adverse effects
on the neighborhood and some technical deficiencies. The trial court found that as to one of the stated reasons, adverse
neighborhood impact, there was substantial evidence in the record to
support the denial decision. Connecticut law segregates appeals
from denials of affordable housing projects from denials of other land
use permits.[281] The affordable housing procedures set the burden
of proof on the town to show that substantial evidence in the record
supported the denial decision. As
with the Telecommunications Act, the governmental agency must state
its reasons on the record for the denial.[282] In addition, the town must show that the reasons
for the denial outweigh the benefits that are statutorily presumed to
follow from the construction of affordable housing projects. While there were a number of concerns raised
about the scope of the project, the evidence did not show that significant
dislocations would occur or that the existing traffic or sewage conditions
would be harmed. There was not
evidence to show that the public interests supporting a denial decision
outweighed the need for affordable housing.
[h] Rogers v. Town of Norfolk[283] Plaintiff had operated two licensed
group child care facilities in the region for many years. She selected a site in the town suitable for
the establishment of another facility.
The parcel was located in a residential zone and contained a
home with a footprint of 3169 square feet.
Under the town’s zoning ordinance a child care facility is an
allowed use in the zone, but there is a 2500 square foot limit to the
size of the structure. The plaintiff was informed that because the
footprint limit was exceeded she could not be given a building permit
for a child care facility. Plaintiff asserted that the footprint
limitation is facially invalid under a Massachusetts statute that affords
educational and religious institutions certain protection from local
zoning regulation.[284] Normally one would prove a violation of the
so-called Dover Amendment by showing that the zoning ordinance either
prohibited or required a special permit for a child care facility or
otherwise acted in a way to nullify the protections afforded to such
a facility. The court analyzed both the validity
of the ordinance facially and as applied.
The ordinance is presumed valid, thereby placing the burden of
proof on the plaintiff to show why it should be per se invalid. The court applied the test that if the footprint
regulation furthered a legitimate municipal interest and that its application
rationally related to that interest it would be facially valid.
Under that test the court found this provision valid since it
served the important municipal aim of protecting the residential character
of neighborhoods. This was especially
true in this town, because 95% of its total area was zoned for residential
uses. The town also showed that
the footprint regulation did not have the effect of excluding child
care facilities because over 90% of the existing residences in the town
had footprints smaller than 2500 square feet.
Another way to find an ordinance facially invalid is to see if
it singles out protected uses for special treatment. The majority found no singling out, although the dissenting justices
thought that the footprint regulation was clearly invalid since it only
applied to child care facilities and no other type of accessory uses. But the court then held that as applied,
the ordinance was invalid. Under
the Dover Amendment the court must strike a balance between preventing
local discrimination against certain types of uses and respecting municipal
concerns. In this case plaintiff
proposed to use the existing house and out-buildings. The house was well screened and buffered from
neighboring houses. The application
of the footprint requirement would impose substantial costs on the plaintiff
and not appear to achieve any of the objectives. Because the residential character of the neighborhood
would not be served through the application of the footprint regulation
to this particular home, the court found the ordinance invalid as applied. [3]
Mining and the Extractive Industries
[a] Gun Lake Association v. County of Aitken[285] An operator of a hot-mix asphalt plant
sought a CUP. The planning commission
and the county approved the CUP with some stated conditions attached
along with an agreement to impose other conditions in the future. The future conditions were developed with the
assistance of a citizen’s advisory committee. Neighbors sought judicial review of the decision. Minnesota has a “deemed approved” statute
that is triggered by a failure to act within 60 days of a CUP application. The actual county decision to conditionally
approve took place some 62 days after the initial application, but since
it was an approval, the statutory provision was not violated. Judicial review of a CUP decision is under
the deferential arbitrary, capricious and abuse of discretion test. The neighbors argued that the decision was
defective because the county allegedly did not follow statutory procedures. The court, however, did not find any irregularities
in the county’s decision-making process. The neighbors also asserted that use of a non-governmental
body to help develop the conditions deprived from the due process of
law and violated Minnesota’s open meetings law. The court, however, found no due process violation,
since the board held public hearings on the CUP application and the
neighbors were present and made comments at those hearings.
[b] Fred McDowell, Inc. v. Board of Adjustment[286] Plaintiff operated a sand and gravel
extraction business as a NCU. At
the time the NCU was set, the operation covered a 295 acre parcel. They sought a permit to mine an adjacent 211
acre tract. The Board denied
the permit. The 211 acre tract
was purchased several months after the 211 acre tract. Prior to 1976, the plaintiff has maintained a scale, weigh house
and maintenance building on the 211 acre tract. Due to the construction of an interstate highway bisecting the
two tracts, the plaintiff ceased all use of the smaller tract in 1976. The mining licenses received by the plaintiff
during this time covered both tracts, although no extractive activities
took place on the 211 acres. In
1988, however, the Board refused to issue a mining license for the smaller
tract, noting that the application for that tract was insufficient.
The Board determined that the 211 acre tract was not part of
a unified parcel on which sand and gravel were being extracted at the
time the zoning ordinance became effective and that the plaintiff’s
activity on the smaller tract was insufficient to establish a NCU for
mining purposes. Between the time mining began and the present, the
township underwent substantial residential growth, including areas immediately
adjacent to the 211 acre tract. The scope of judicial review of permit
decisions by a board is the arbitrary, capricious and abuse of discretion
test. There is a strong presumption
of validity and the reviewing court may not substitute its judgment
for that of the board’s. Under
New Jersey law, the treatment of NCUs is somewhat more tolerant than
most states since NCUs may be restored or repaired in the event of partial
destruction of the NCU. Nonetheless,
NCUs are restricted to the character and scope of the use extant at
the time the ordinance making the use non-conforming was enacted. Likewise, NCUs, being inconsistent with the comprehensive plan should
be made conforming as soon as possible, but the town is not able to
take active steps to extinguish them.
Normally, expansion of NCUs to new or larger areas is not permitted
without getting a variance. New
Jersey, however, recognizes the diminishing assets doctrine for mining
operations that allows expansion over an area covered by the mineral
deposits.[287] But there are some limits on the extent to
which a mining operator may expand its excavations. There must be some “outward manifestation of intent” to utilize
the entire parcel. The application
of the diminishing assets doctrine requires a fact-sensitive inquiry. The court must view the facts with the objective
that NCUs normally are contrary to the general welfare. In this case the board considered the evidence
of prior use of the 211 acre tract, the extent of the mining operations
when the NCU was created and other signs of the owner’s intent regarding
the use of the smaller tract. The
court found that the board’s decision was not unreasonable and arbitrary. The weighing of the deleterious impact on the
surrounding uses was proper, even though the residential development
antedated the mining operations.
[c] Skenesborough Stone Inc. v. Village of Whitehall[288] In earlier litigation, plaintiff had
challenged a village ordinance that prohibited all mining operations
within the village, unless the operations were a NCU.
The earlier decision found that there was no constitutional challenge
to the ordinance, but it remanded on the issue of whether plaintiff’s
activities amounted to a NCU.[289] At the trial the plaintiff offered evidence
of some quarrying activities for the year prior to the enactment of
a moratorium ordinance in 1995, followed by the prohibition ordinance
several months later. Other
witnesses called by the village had no recollection of any mining operations
going on during that period of time.
The trial court found that the evidence did not support a finding
that a NCU had been created covering the 400 acre tract.
The overriding public policy in New York is to restrict and then
eliminate NCUs. While New York
has adopted the diminishing assets doctrine to mining NCUs, there are
limits to the application of that doctrine.[290] There was no evidence showing the extent of
the mining operations on the 400 acre tract prior to 1995. The ultimate issue being a question of fact
relating to the credibility of the witnesses, the appellate court deferred
to the findings of the trial court regarding the existence of a NCU.
[d] Native Village of Eklutna v. Board of Adjustment[291] The owner of a 160 acre tract of land
located in a light industrial zone sought to conduct a granite quarrying
operation on a portion of the tract.
The quarry would be adjacent to an existing mining operation. The comprehensive plan also called for the
area to be dedicated to industrial uses due to the existence of the
quarry. The owner sought a CUP
from the Planning and Zoning Commission.
The planning staff recommended that the CUP be issued with a
number of conditions. The commission
granted the CUP after having the owner submit various environmental
and traffic studies. The native
village corporation sought to overturn the decision.
In Alaska, judicial review of a CUP
decision is narrow and a strong presumption of validity attaches to
that decision. Deference is
given to agency interpretations of zoning ordinances and decisions will
be reviewed under the substantial evidence test.
The village corporation argued that the commission failed to
consider the effect of the mining operations on the cultural resources
of the area. The village argued that the area to be mined
had special meaning to the native Alaskan members of the village. The one report conducted by the owner that
concluded that there were no cultural resources effected by the mining
plan was cursory and unsupported by substantial evidence. The village corporation offered testimony that the granite hills
gave the village its name and was important to the members of the community. Thus, the CUP decision must be remanded to
see whether, on balance, the need for industrial development in the
area outweighs the need to preserve the cultural resources.
[e] Vulcan Materials Co. v. Greenville County Board of Zoning
Appeals[292] Between 1989 and 1992, Vulcan leased
several tracts to determine their suitability for the mining of granite. They spent over $ 1,000,000 in their exploration
and testing activities. In
1995 they developed a mining plan and began to seek the needed permits
to operate a mine. By 1996 local
opposition surfaced to the preliminary extractive activities on the
leased tracts. In September
1996 the county zoned the land for suburban residential development. Vulcan applied for a certificate of NCU status. It was denied on the basis that there was no
indication of actual mining or occupancy of the site at the time the
ordinance went into effect. Because the South Carolina zoning enabling
statute had changed in 1994, the court had to determine the proper scope
of judicial review. It found
that the new statute equates the findings of a ZBA with the findings
of fact by a jury. Thus the
scope of judicial review of factual issues was quite limited.
The court, however, engages in de novo review to see if the board’s
actions are correct as a matter of law.
There was also some problem in determining whether the new statutory
scheme changed the procedures for seeking judicial review of zoning
decisions, but the court ultimately found that the appeal was made in
a timely fashion. There was
also a discrepancy in the record regarding two separate meetings or
hearings by the ZBA. In one of the hearings, there was not a sufficient
number of ZBA members present to constitute a working quorum so the
document issued by the chair and secretary of the ZBA was ineffective. The findings of fact and conclusions of law
differed between the hearings. The
court determined that only the findings and transcript of the hearing
where a sufficient number of board members were present could be considered. The factual issue was whether the removal of
overburden accomplished by the plaintiff prior to the enactment of the
ordinance constituted a mining operation so as to provide NCU status. The court found that the actions taken by the
plaintiff clearly met the ordinance’s definition of mining. The expenditure of nearly $ 2,000,000 and the
physical activities on the land constituted mining even though the plaintiff
had not received the final permit needed by the state to begin quarrying
operations. In a similar vein,
the court also found that plaintiff had a vested right to mine for many
of the same reasons they had achieved NCU status.
[f] Wende v. Board of Adjustment of the City of San Antonio[293] In 1997 the city entered into a nonannexation agreement with the
owners of several quarries in exchange for a promise by the quarry owners
to pay an amount equal to the ad valorem taxes they would have owed
had the quarries been annexed. Shortly
before the end of the agreement that would free the city to annex the
land, several owners executed a mining lease on some new tracts of land. The first annexation ordinance did not cover
the newly leased areas. The
city then adopted a second annexation ordinance encompassing these tracts. The city zoned the original quarries for mining
operations, but the two new areas were zoned for residential uses. The owners sought to register these areas as
NCUs. The city agreed and several
neighbors challenged that decision. The quarry operator challenged the
standing of the neighbors and an adjacent town. The statute specifically authorized taxpayers to appeal decisions
of a board of adjustment.[294] That gave the individual neighbors standing.
The adjoining city was an aggrieved person because the new quarrying
activities would effect the residents of the city.
The scope of judicial review of a board decision is merely to
determine whether the board abused its discretion.
It is not to determine whether there was substantial evidence
in the record to support the decision.
A failure to analyze or properly apply the law would constitute
an abuse of discretion. The court, however, is quite limited in its
review of factual findings. The
board’s decision will be upheld under any possible theory of law, even
if the board had not considered that theory when it made the decision. The board only cited the existence of the
leases as the basis for finding that a NCU existed. The mining operators had two additional theories, actual preexisting
use and the diminishing assets doctrine that the board did not mention.
But the court found that it may affirm on a ground not cited
by the board only if that ground applied as a matter of law.
The court found that neither of the two additional grounds met
that standard. It then examined the preexisting lease theory
and found that insufficient to support the finding of a NCU since it
misapplied the law. In order
to qualify for NCU status, the owner must engage in actual, rather than
merely contemplated uses. Acquiring
and setting aside a parcel for a use is not sufficient. The leasing of land for mining purposes is not putting the land
to the actual use of mining. If
the city ordinance was interpreted in any other way it would lead to
an absurd result. The mining
operator had submitted evidence that several permits to quarry had been
received prior to the adoption of the zoning ordinance.
There was also some evidence that one of the tracts at been used
for quarrying at some time in the past.
But that mining use had ceased well before the ordinance was
enacted and the permits received did not constitute actual mining operations. While the court acknowledged the near-universal
acceptance of the diminishing assets doctrine, the court refused to
apply it to this case as a matter of law.
The last minute leasing of the new tracts raised several questions
as to whether the doctrine would apply to the existing quarrying operations. Thus the court reversed the board’s decision
finding that the mining operator had a NCU on the two newly-leased tracts
of land. [4]
Agricultural Operations
[a] Richardson v. Township of Brady[295]
The township enacted a confined animal
feedlot operation (CAFO) that limited the number of animals that could
be maintained in an agricultural zone.
Typically, a single farm could maintain up to 300 animal units,
as defined in the ordinance. A
discretionary permit could be obtained to allow for greater density
if certain performance standards were met.
Richardson sought a variance to house some 4200 pigs in a nursery-swine
operation. After seeking to
amend the zoning ordinance, Richardson sought and received a discretionary
permit to house up to 1999 swine. He
believed that the minimum number of swine needed to operate profitably
was closer to 4200. After further
attempts to amend the ordinance failed, Richardson sought to overturn
the CAFO ordinance on due process and equal protection grounds.
In order to prevail on a per se substantive
due process challenge, a party must prove that the regulation fails
to advance or legitimate governmental interest or utilizes an unreasonable
means to advance a valid governmental interest. The purpose of the ordinance is to deal with the odor producing
nature of CAFOs. The ordinance
assigned a ratio of animal units per month based on the odor creating
characteristics of the individual animal.
Preventing odoriferous neighbors is clearly a legitimate governmental
interest. Richardson argued that the ordinance is an
unreasonable means of achieving that interest.
The fact that the ordinance equally weighted horses, cows and
swine, even though swine produce less waste did not make the ordinance
unreasonable. The court clearly
is taking a deferential approach to reviewing the reasonableness of
the means chosen by the township. Richardson also alleged that the ordinance
as applied violated his substantive due process rights because it was
arbitrary and irrational. The
fact that Richardson was raising young swine and that young swine do
not produce as much or as pungent a waste as mature swine does not make
the ordinance irrational. The
ordinance while making reasonably crude or large classifications was
still not arbitrary. While the Sixth Circuit has, on occasion, taken
a hard look under a substantive due process challenge, decided that
there was a rational relationship between the animal unit per month
classification and the problem of odor control.[296] Richardson further alleged that his
procedural due process rights were violated because of a delay in the
township’s processing of his requested ordinance amendment and the Zoning
Board of Adjustment’s failure to interpret the CAFO ordinance in a manner
more beneficial to him. Clearly
there was no property interest in a proposed zoning amendment that would
give rise to any procedural due process claim.
There is no entitlement to have a zoning ordinance changed at
your request. Likewise, there was no property interest in
having the ZBA determine that the ordinance should be interpreted as
Richardson desired. The concurring
judge correctly pointed out that if Richardson had no protectible property
interest under the procedural due process claim, he also had no protectible
property interest under the substantive due process claim. The judge noted that there appeared to be such a distinction made
in the 6th Circuit that is unjustified. The judge stated: “there is no logical basis for making such a distinction,
at least in connection with real property zoning cases.”[297]
[b] Perkins v. Madison County Livestock & Fair Association[298] The Association owned and managed the
county fairground. There was
an arena in the fair that held rodeo events.
In addition, during the week of the fair, various mechanized
events such as tractor pulls were conducted at the arena.
In 1993 the Association sought a discretionary permit and variance
to construct a multi-purpose racetrack.
The fairgrounds were located in an agricultural district that
did not allow racetracks, but did allow go-cart tracks. In addition, the ordinance required a 200-foot setback from any
property line and a 600-foot setback from any residences. The county zoning board approved the discretionary
permit but denied the variance. The
Association went ahead with its plans ignoring the setback requirements
and other conditions placed on the discretionary permit. In 1996 figure-eight racing began both during
the fair and at other times. Plaintiffs
are adjacent property owners who claim that the Association violated
the county zoning ordinance and operated a nuisance with its racing
events. The trial court found
that the county zoning ordinance applied to the Association and that
the Association had violated the requirements of that ordinance.
It did not find, however, that the racing was a nuisance although
it did enjoin further use of the racetrack until the requirements of
the ordinance were complied with. Under Iowa law, during the time a county
fair is held, no city ordinance or resolution can impair the authority
of the Association in its sole and exclusive control over the fair.[299] But the ordinance held applicable here is a
county ordinance, not a city ordinance.
The court thus concluded that the county ordinance was not subject
to the statutory preemption applicable to city ordinances. The Association also claimed that it had a
NCU by virtue of the arena whose construction had antedated the county’s
zoning ordinance. But the owner
of a NCU may lose its NCU status where it exceeds the established NCU. Enlargements or extensions of NCUs are not
favored and normally not allowed. The
racetrack and its use for motorized racing events was deemed to be substantially
different from the rodeo-type arena. Thus, the Association was in violation of the county zoning ordinance
when it expanded its operation. The court also reviewed the trial court
determination that no nuisance existed.
The definition of a nuisance has both statutory and common law
bases. If a normal person living
in the community would regard the invasion as offensive, seriously annoying
or intolerable, a nuisance finding is justified.
The Association tried to argue that the plaintiffs came to the
nuisance, since the fairgrounds had been in its present location prior
to the time some of the plaintiffs built their homes.
But it wasn’t the fairgrounds that caused the nuisance, it was
the later expansion into racing that was the cause of the injury. That expansion only took place after all of
the plaintiffs’ had built their homes.
The court found that while the racing was somewhat limited in
the number of dates when racing was actually held, it was still a very
obnoxious and annoying use. As
to some, but not all, of the plaintiffs, the interference was sufficient
to support a finding that the races constituted a nuisance.
The court looked at the impacts on the home, such as noise, dust
and fumes and not the secondary effects such as traffic and lights.
[c] In re Conditional Use Permit[300] A farmer applied to the Board of Commissioners
siting as the Board of Adjustment for a CUP to allow him to construct
two CAFOs housing approximately 6600 hogs. A public hearing was held at which substantial public opposition
to the CUP was voiced. The Board
denied the CUP, giving several grounds including impact on the roads,
pollution, offensive odors, failure to specify where the manure would
be disposed of by land spreading and lack of county resources to monitor
compliance with the environmental laws applicable to CAFOs.
The county’s zoning ordinance set forth various performance standards
for CAFOs in agricultural districts.
One issue is whether the ordinance
limited the county to reviewing just the listed performance standards
when it made the decision to issue or deny a CUP for a CAFO. In interpreting the zoning ordinance and its conditional use provisions,
the court found that the county was not limited to reviewing solely
the laundry list of performance standards.
While meeting those specific standards is a necessary condition
to getting a CUP, it is not sufficient by itself.
By definition a CUP is given where the county determines that
the use will not interfere or injure surrounding parcels. The court noted that one of the reasons given for the CUP denial
was the lack of enforcement of environmental regulations at the state
level. That is not a relevant
factor to be considered, since it places the onus on an individual for
the state’s apparent or real failures to enforce the law.
The court applied, and amplified, the
appropriate scope of judicial review that it had announced last year
in Coyote Flats.[301] Review by the trial court is de novo and independent
of the county’s decision. Yet
the trial court is not to act as a one person board of adjustment and
determine whether it would issue or not issue the CUP.
Once the trial court made independent findings of fact, it must apply those facts to the county’s decision
to see it was arbitrary or capricious. In this case, the trial court did not follow the Coyote Flats
mandate and thus the case is remanded for a new hearing.
[d] R.L. Hexum & Associates, Inc. v. Rochester Township
Board of Supervisors[302] A food processor sought CUPs to expand
its wastewater-spraying operations in connections with a fanning plant.
The existing operations are located in an agricultural urban
expansion zoning district. The expanded area is in the same zoning district
and is located adjacent to the existing sprayfield. Plaintiffs are neighbors who opposed the CUPs
at the public hearings. The board approved a consolidated CUP allowing
the expansion project to take place after soliciting comments from county
and state officials. Under the applicable zoning ordinance conditional
uses are those which are similar to agriculturally-related uses. While not being as deferential to zoning
agencies interpreting their own zoning ordinances, the court found that
the interpretation given by the county was reasonable. The ordinance defined a farm, but did not define
farming or agricultural operations.
The court refused to apply the definition of farming found in
a state statute that prohibited corporations from engaging in, or owning,
farmland. The court instead
applied a plain meaning approach to the term farming.
The canning operation aside, the spraying occurred on land that
is used for the sowing of grass seed and other plants.
The spraying is not a separate function from the farming operations
as would be the operation of a retail and supply business. While the land was located in an area marked
for eventual transition to urban uses, the immediate area was still
largely farmland and was not close to any existing residential areas. The decision to allow the spraying was reasonable
and consistent with the objectives of the zoning ordinance.
[e] Dail v. York County[303] As more and more counties exercise
zoning powers, conflicts arise not only in the agricultural arena, but
in the silvicultural arena as well.
The Dails own a 37 acre wooded tract located within a rural residential
zoning district. Forestry is
allowed as a permitted use without the need of a CUP.
They notified the county that were intended to harvest timber
and comply with the State Forester’s regulations relating to best management
practices for silvicultural operations.
They also told the county they would not comply with county regulations
relating to forestry operations since they believed the county regulations
were preempted by the state rules.
The key regulation that the Dails apparently did not want to
comply with was the need for a buffer zone around the cut.
The Dails filed this action for a declaratory judgment regarding
their right to remove timber without the need for complying with the
county regulations. The county argued that the case should
be dismissed since the plaintiffs did not exhaust their county administrative
remedies. There had been no
permit filed and no review made of their silvicultural operations plan. No exhaustion is required where the party is
essentially attacking the ordinance per se and not as applied to their
property. The issue in this
case was solely the legal issue of whether the county ordinance was
preempted by the state statute and regulations.
One state statutory provision expressly prohibited counties from
imposing permit requirements on silvicultural operations.
The plaintiffs argued that the county review of the forest management
plan was the functional equivalent of a permit and therefore was preempted.
The court, however, disagreed finding that the county’s submission
and approval requirements did not create a permit system. The court
also found that the county ordinance prohibiting clear cutting was not
preempted by the state statute that did preempt county prohibition of
silvicultural operations. The clear cutting ban was merely a ban of one
method of silvicultural operations and not the same as a total prohibition
against logging. Finally, the
court found that the buffer zone requirement was not preempted by the
state’s determination that the plaintiffs were using best management
practices. That determination was made by the State Forester
and was only a guideline for use in forestry activities. Therefore there was no preemptive power in the
guidelines that do not have the force and effect of state statutes or
regulations.
[f] Wilbur Residents for a Clean Neighborhood v. Douglas
County[304] A farm corporation sought a permit
to operate a two-stage lagoon operation to process and treat waste that
after treatment will be reduced to approximately 3% solids and will
be capable of being applied by irrigation as fertilizer.
The wastewater will be sprayed on adjacent farmland. The state issued a permit for both the lagoon
and the spraying operations. The
land was located in an exclusive farm use district that allows, as a
conditional use, the disposal of solid waste with accessory buildings. Neighbors challenged the issuance of the permit
to LUBA. While the statute
dealing with solid waste facilities referenced a different type of facility
than that proposed by the plaintiff, the court nonetheless found that
the plaintiff’s application fell within the parameters of the CUP provisions. The court did not deal with the spraying operation,
since no county permit was sought.
The CUP was for the lagoon and accessory buildings, both uses
allowed under the ordinance and statute.
The court did not express an opinion as to whether the spraying
operation required any type of land use permit.
[g] Friends of the Creek v. Jackson County[305] The City of Ashland operated a wastewater
treatment plant that historically discharged treated water into two
streams. The state restricted
the ability of the city to discharge and the city purchased an 846-acre
tract in an exclusive farm use zone outside of the city limits for the
purpose of spreading the solid waste as a fertilizer.
The city initially sought a CUP from the county but withdrew
the application after it determined that the proposed operation should
be permitted as of right in the EFU.
The county planning director agreed with the city that the proposed
spreading/fertilizer operation was consistent with the goals of the
EFU zone. An environmental organization
appealed the county’s decision to LUBA.
LUBA determined that the spreading operations required a permit
that had not been applied for and therefore remanded the case back to
the county. The court found that there were factual and legal issues that needed
to be resolved regarding the need for a permit and the need to follow
the notice and public hearing requirements for such permit deliberations. Thus it agreed with LUBA that a remand to the
county was required to develop a full record on those issues.
[h] Altenburg v. Board of Supervisors of Pleasant Mound Township[306] The township and the county adopted
several ordinances impacting CAFOs.
One required new CAFOs feeding 300 animal units or more to seek
a CUP. The ordinance also established pollution control
and setback standards. The
township then adopted a moratorium ordinance to study the CAFO problem
and during that study period, the county enacted its own land use ordinance
restricting CAFOs. After studying
the problem, the township adopted a new comprehensive plan and zoning
ordinance that limited the number of animal units that could be fed
at a CAFO. The township ordinance was much stricter than
the county ordinance. Plaintiffs
operated a CAFO in the township that had received a CUP, but under the
newest township ordinance would be a prohibited use because of the number
of animal units involved. They
sought to invalidate the township ordinance. The township argued that the case was
not ripe for review since the plaintiffs had not sought a CAFO permit. But since the ongoing feedlot operations were
a prohibited use they could not be granted a permit, nor could they
be issued a variance. Thus they
did not have to exhaust their administrative remedies.
One argument made by the plaintiffs was that the township ordinance
was preempted by, or in conflict with, the county ordinance. Two separate enabling statutes grant those
two sub-state entities the zoning power.
There is an express statutory provision that limits the power
of townships to enact zoning laws that are inconsistent or less restrictive
than the county’s. Plaintiffs
argue that the township ordinance is inconsistent because it forbade
what the county allowed. But the court found the language plain because
it only prevents the township from having less stringent regulations.
They also argued that the county ordinance occupied the field
of CAFO regulation, thus preempting township regulation.
The court rejected that claim noting that the preemption argument
is different when dealing with two sub-state units than when dealing
with a state/local situation.[307]
The occupation of the field doctrine only exists in substate unit relationships
when the state so declares. In
this case, the only state declaration is the one prohibiting less stringent
standards. Thus the township
is not prevented from regulating CAFOs merely because the county has
its own CAFO regulatory scheme. Finally, the court found that the ordinance
was not arbitrary or capricious. The
scope of judicial review of zoning ordinances is quite deferential,
using a fairly debatable standard.
In this case the township engaged in a lengthy and substantial
study of the problem before it adopted the CAFO ordinance.
Whether the ordinance is wise or not is a matter left to the
township and should not be disturbed by a reviewing court. [5]
Sanitary Landfills
[a] State ex rel. Teefey v. Board of Zoning Adjustment[308] Teefey owned a 36-acre parcel located
in an area zoned for agricultural uses. He owned a home and operated his landscape and nursery business
on the tract. A city zoning
official issued a notice of violation after he discovered that the owner
was using a portion of his tract for a compost pile.
The alleged violation was the use of the land as a sanitary landfill,
not a permitted use in an agricultural zone.
The BZA held a public hearing that found a violation, but that
decision was reversed and remanded due to the lack of evidentiary support
for the finding that a landfill was being operated on the parcel. The later hearing also led to a BZA determination
that the ordinance was being violated. The trial court again reversed. An appellate court in Missouri reviews
the findings and conclusions of the BZA, not the judgment of the trial
court. The scope of judicial
review is limited to determining whether substantial evidence in the
record supports the BZA’s decision so that the decision is not arbitrary,
capricious or unreasonable. In
reviewing the decision, the court must view the evidence in the light
most favorable to the BZA. The
court also reviews the BZA decision to determine if the proper law was
applied. In interpreting city ordinances, the court appeared not to give
any deference to the BZA interpretation.
Instead it applied the plain meaning approach to see whether
the owner’s actual operations met the ordinance definitions of a solid
waste sanitary landfill. Grass
clippings and other lawn debris fit within the definition of solid waste. Likewise, a compost facility, even one that does not apply chemical
or other forms of treatment fits within the definition of a landfill.
Thus the BZA decision finding the actions of the owner in violation
of the prohibition against operating landfills in an agricultural zone
were supported by substantial evidence.
[b] Metropolitan Development Commission of Marion County
v. Schroeder[309] An small parcel of land had been used
as a service station in a commercial zone. The business was closed and after several years the county BZA granted
a variance from certain use restrictions so that a transmission repair
and sales business could operate. One
of the conditions on the variance was that no more than one vehicle
could be stored on the premises for more than 24 hours. The parcel was then sold to Schroeder who erected a barbed wire
fence in violation of a county ordinance.
After an enforcement action was begun the parties settled their
differences. After another year,
a county zoning official issued a notice of violation after finding
a number of junk cars located on the lot.
Schroeder defended his actions by claiming that since he had
purchased the parcel he had always stored junk cars there.
He also claimed that he was unaware of the condition contained
in the variance covering the parcel since the variance had never been
recorded. The court found that laches could not
prevent a city from enforcing its zoning ordinance. Likewise the court found that the city had
not waived its right to enforce the variance condition. There clearly was no intentional relinquishment
of a known right communicated to Schroeder from the county. The trial court had found that Schroeder had
a NCU. There was no evidence
in the record that the use of the parcel for storage of cars had antedated
the zoning ordinance. In fact
since the present use was only permitted by a variance, it would be
impossible to show that the use was a NCU.
The court also rejected Schroeder’s claim that the settlement
of the earlier violations estopped the county from enforcing the variance
conditions. One of the provisions
in the settlement was a finding that Schroeder was in substantial compliance
with the zoning ordinance. He argued that the county should be judicially estopped from now
claiming that his continued use of the parcel for a junkyard violated
the ordinance. The court rejected
the estoppel claim since the earlier enforcement action reflected a
violation of the fencing regulations and not the storage of cars prohibition. The court also rejected the equitable estoppel
claim, noting that equitable estoppel is rarely applied against governmental
entities. Only where the government’s
actions would threaten the public interest can equitable estoppel be
applied. Here there was no threat
to the public interest by the enforcement of the variance condition. Schroeder also asserted a regulatory
takings claim. Here Schroeder
does not have a property interest in using his land for the storage
of junked vehicles. The bundle
of rights acquired by Schroeder also included the bundle of restrictions,
such as the variance condition. Schroeder
only acquired the right to store a single vehicle on the parcel, and
that right has not been infringed upon.
The court also found that the variance condition was not unreasonable. The court looked to five factors to determine reasonableness.
They should “1. not offend any provision of the zoning ordinance,
2. require no illegal conduct on the part of the permittee, 3. be in
the public interest; 4. be reasonably calculated to achieve a legitimate
objective of the zoning ordinance; and 5. impose no unnecessary burdens
on the landowner.”[310] The zoning ordinance placed significant limitations
on outdoor storage and operations.
The condition achieved various legitimate state objectives consistent
with the zoning ordinance. Thus
the enforcement of the condition by the county was appropriate.
[c] Demolition Landfill Services, LLC v. City of Duluth[311] In December 1998, plaintiff sought
a CUP for a landfill. In April
1999, the City Council held a public hearing and voted to reject a resolution
approving the permit. In May
1999, the council voted to deny the permit.
Under state law, an agency must approve or deny a zoning permit,
license or other approval within 60 days of its filing.
An additional 60 day period is allowed if the agency provided
the applicant with a written notice of the extension prior to the end
of the first period.[312] It was undisputed that the 120 day period applicable
to the facts in this case expired in April 1999, after the initial vote
was taken. The issue was whether
the first vote rejecting the permit approval was the equivalent of a
denial decision. The court looked
at the actions of the city in conducting a second vote to affirmatively
deny the CUP. That suggested
that the initial vote was not a rejection.
Since the first vote did not toll the statute, the deemed approved
remedy for failing to act was triggered.
The statute was not merely directory, but was mandatory, so the
court was not willing to allow substantial performance to substitute
for complete performance.
[d] St. Johns County v. Smith[313] Smith applied for a PUD for an 89-acre
tract. The land had been zoned
for open rural that would not have permitted solid waste transfer stations.
The PUD provided for all essential public services but further
provided that the PUD would not adversely affect the health or safety
of the residents nor be detrimental to the environment.
Smith sought to modify the PUD to among other things, include
a solid waste transfer station. The county staff recommended approval
of all of the changes except for the transfer station. The county initially
found that the transfer station was incompatible with the original PUD
application and would not create a more desirable environment.
At the trial court Smith filed an affidavit where he would agree
to limit the type of waste that would be processed through the transfer
station. The county argued that
the affidavit was not admissible since the trial court was limited to
reviewing the record. The trial
court remanded the decision to the commission to accept the compromise
offer contained in the affidavit and approve the PUD modifications. In Florida, a major modification to
a PUD application is the functional equivalent of a rezoning petition.
As such the proponent has the burden of proof
to show that the change is consistent with the comprehensive plan. At that time the burden shifts to the county
to show that maintaining the existing zoning accomplishes a legitimate
public purpose. The trial court
did not follow the appropriate review procedure.
It failed to shift the burden to Smith to show that the PUD modification
was consistent with the comprehensive plan.
The only evidence in the record was a staff report that had been
superseded. In addition, the
trial court’s review was not consistent with certiorari review which
is limited to an determination of whether the county departed from the
essential requirements of law.[314] In addition, the trial court erred in admitting,
and then considering, the affidavit and its compromise offer. As a post-record submission it should not have
been part of a certiorari review. § 1.07 Potpourri [1]
Discretionary Permits
[a] Special Exceptions – Conditional Use
Permits [i] Harris v. Jefferson
County Board of Adjustment[315] The Tinkers own a parcel of land in
a single-family residential district.
In 1996 they received a variance to operate a boat-rental business.
In 1998, they sought a special exception to operate a concession stand. The county BZA granted the special exception.
A neighbor challenged the special exception claiming that the
action of the BZA was ultra vires. The court noted the classic difference
between a variance and a special exception, a variance excusing compliance
with the terms of a zoning ordinance, a special exception authorizing
a use that is allowed by the specific terms of the zoning ordinance.
The county zoning ordinance did not provide for a concession
stand as a special exception use in a residential district.
The county argued that the issuance of the 1996 variance essentially
rezoned the parcel to a business or commercial district.
A variance, however, cannot amend the zoning ordinance since
only the legislative body may do that under the equal dignity rule.
A BZA does not have the power to rezone, either de jure or de
facto. Thus, the issuance of
the special exception was ultra vires. [ii] Florida Power
& Light Co. v. City of Dania[316] FP&L sought a special exception
to build an electrical substation on land zoned for commercial use. The Planning and Zoning Board recommended denial
of the S/E. The city commission
held a public hearing whereby local neighbors protested the proposed
location. The city voted unanimously
to deny the S/E. The trial judge
reversed the city’s decision finding that once an applicant for an S/E
has met the criteria in the ordinance, the burden shifts to the city
to demonstrate that substantial evidence in the record supports their
denial decision.[317] The Supreme Court reviewed the nature of judicial
review under Florida law. There
is first tier review that is conducted by the trial or circuit court.
The circuit court reviews the record to determine whether the
agency decision is supported by substantial evidence.
The second tier review is to the intermediate appellate court
or the district court. Review at this level is limited by the nature
of common law certiorari review. For
most cases, the first tier decision should not be disturbed by the district
court. The basic grounds for
second tier review are whether the circuit court afforded the parties
procedural due process rights and applied the correct law. The district court does not go back and review
the original administrative record; that is within the province of the
circuit or trial court. In this case the circuit court did
not merely review the record to see if there was substantial evidence
to support the city’s decision. It,
in effect, engaged in a trial de novo, reweighing the evidence of the
opposing neighbors and FP&L. That
was an erroneous application of the law.
It should not have applied the standard that shifts the burden
to the city, but should have applied the traditional standard of review
that the zoning decision will be upheld if there was substantial and
competent evidence in the record to support that decision.[318] The Supreme Court declined to review the record
itself to determine if there was substantial evidence to support the
denial decision. Instead the
court remanded the decision back to the circuit court to apply the appropriate
scope of judicial review, while reminding the district court, that its
role is also not to re-weigh the evidence but to determine if there
was an erroneous application of legal principles. [iii] Kosalka v.
Town of Georgetown[319]
Plaintiffs sought a permit to construct
a trailer/RV campground. Under
the town’s shoreland zoning ordinance, there are only 3 districts, resource
protection, general development and limited residential/recreational
development. The situs of the
campground made it unclear as to whether it was in the resource protection
or limited development district. In
situations where there is a controversy the town’s ZBA makes the final
decision. Campground use is
allowed as a CUP in the limited development district if 9 performance
standards are met. The CUP
was denied by the Planning Board for two reasons, the first being that
the situs was in the resource protection district, the second being
that the development would not conserve the natural beauty of the area,
one of the listed standards. The ZBA concluded that the situs was in the
limited development district, but it affirmed the denial decision. The trial court, however, reversed, concluding
that there was insufficient evidence to support the finding relating
to the standard of “natural beauty”.
On remand, the ZBA again affirmed the CUP denial decision after
taking additional evidence on the issue and making a site visit. Neighbors who intervened in the administrative
and judicial proceeding argued that the ZBA made the wrong situs decision.
They had the burden to show that the ZBA decision was arbitrary
or an abuse of discretion. Under the ordinance, since the lot was already
developed it could be placed in the limited development district even
though it may also include wetlands or other environmentally sensitive
areas. The owners bore the
burden of proof on the issue of whether the ordinance is unconstitutional
because several of the standards, including the natural beauty standard,
were void for being too vague or were an impermissible delegation of
legislative authority. Maine has occasionally used the non-delegation
doctrine to strike down grants of land use authority, those instances
involved standardless delegations.
Such general standards as compatibility or approval do not constrain
the unbridled discretion of the administrative decision-maker. The court found that the standard of conserving
the natural beauty of the area was likewise standardless. There is no way to quantify natural beauty
or to determine how one conserves it.
Neither property owners nor the town will know how to create
a development plan that meets that standard.
This leaves the ZBA and Planning Board in the position of approving
or denying permits as they see fit.
Thus the decision to deny the CUP because it violated that standard
must be reversed and the ZBA ordered to issue the CUP. [iv] City of Alpharetta
v. Estate of Sims[320] BP Oil sought a CUP to construct a
convenience store and ten island gas station on land it has an option
to purchase. The staff recommended
conditional approval of the CUP, including a requirement that 6 large
trees be preserved. The city
had an ordinance requiring trees to be preserved under many circumstances
before a building permit would issue.
During the public hearing, BP Oil was ready to protect several
of the trees, but the most significant tree could not be saved under
the plans submitted by BP Oil. The City Council then voted to deny the CUP.
One of the standards for the issuance of a CUP is that the use should
not be injurious to the environment.
Since BP Oil had not presented evidence, other than its conclusory
statement that the one significant tree could not be built, the court
found that the city’s decision was supported by substantial evidence
in the record.[321] [v] Tenderloin
Housing Clinic, Inc. v. Astoria Hotel, Inc.[322] Under San Francisco’s residential hotel
unit conversion and demolition ordinance, the city had designated 79
of Astoria’s rooms as residential units and 13 rooms as tourist units
in 1981. The issue was whether
the Astoria was entitled to continue treating the 13 units as tourist
units even though a 1987 ordinance would require the Astoria to get
a CUP to continue their use only if the units were being used for tourist
purposes at that time. The Clinic argued that there was no evidence
showing that the Astoria actually rented these rooms to transients in
1987 and that therefore they were not entitled to rent them to transients
under the city’s ordinance. A preliminary question was whether
the trial court should have applied the primary jurisdiction doctrine
and allowed the planning department to make the determination. The court concluded that the issue did not
involve the administrative expertise of the planning department but
involved issues of statutory interpretation.
Therefore no referral to the planning department was required. The Astoria Hotel is located in a mixed
use district where tourist hotels are only permitted as conditional
uses. It was conceded that the Astoria never received
a CUP from the planning department.
It asserted that it may rent 13 of its rooms to tourists because
it was a NCU, based on the 1981 certification under the conversion ordinance. The court interpreted the various city ordinances
as giving the Astoria NCU status even though it did not show that it
was actually using those rooms for tourist purposes at the time of the
1987 ordinance. The use itself
lawfully existed by virtue of the 1981 certification.
Unless the plaintiff could show that the Astoria abandoned its
NCU through nonuse for a period of at least 3 years the Astoria would
be able to continue to rent no more than 13 of its units to tourists
without have to receive a CUP.
[b] Variances [i] Pinnell v.
Kight[323] An owner of a home in a single-family
residential district sought a variance to place a mobile home behind
her home so that her grandson could live there. A variance was required since no mobile homes
were allowed in her SFR district. The
variance was issued with the condition that only her grandson or other
family members could live in the home.
It provided for an automatic termination of the variance should
the family move. Several years
later the owner finally moved a mobile home onto her lot. Shortly thereafter the city voted to rescind the variance and she
was instructed to remove the mobile home.
She was instructed to complete an application for a moving permit
that should have evidently been approved prior to the moving of the
mobile home. The city considered
and denied the moving permit application.
Pinnell then sought a writ of mandamus forcing the city to honor
its earlier variance and to order the city to approve the moving permit. Pinnell argued that the zoning ordinance
was unconstitutional under state law, since a city could not exclude
mobile or manufactured homes for residential districts.[324] Since she did not raise that issue before the
city council, however, it cannot be raised for the first time upon appeal.
The trial court had found that the earlier variance had been improperly
issued due to lack of notice. This
court found that the variance was properly issued and notice given both
by publication and by a sign on the owner’s parcel. Under the city ordinance a variance is a “deviation from the terms
of the ordinance that are not contrary to the public interest.” There is no requirement of unnecessary hardship
and the trial court’s review to determine whether hardship existed went
beyond the proper scope of judicial review. The fact that the owner had not exercised her right to place a mobile
home on her lot for nearly 5 years, did not terminate her continued
right to the variance. The
court, however, remanded the decision to the trial court to see whether
the facts and circumstances justifying the variance or a change in the
character of the neighborhood existed so as to justify the rescission
decision. [ii] Nolan v. City
of Eden Prairie[325] In 1989 the city approved a subdivision
plat and simultaneously issued several variances. In 1998 the developer filed another application
for a revised plat. The City
Planning Commission voted unanimously to approve the revised plat after
consulting with various parties to see whether the shared septic system
complied with state standards. Shortly
thereafter the city council approved the revised plat by a 3-2 vote. A neighbor challenged the decision, in part
based on an alleged conflict of interest between of one of the council
members who voted in favor of the plat.
In the meantime, the city board of adjustment and appeals denied
the requested variances related to the revised plat.
The city council then reviewed the board decision and by a 3-2
vote granted the variances. The conflict of interest charge was
based on the fact that the council member shared office space with his
brother who was an attorney representing the developer. Under Minnesota law, the court reviewed 5 factors to determine if
there was such a conflict. It
looked at the nature of the decision being made, the nature of the pecuniary
interest, the number of officials making the decision who are interested,
the need, if any, to have interested persons make the decision and the
other means available to review the decision to insure that the officials
did not act to further their own personal interest.
The court found that there was no direct conflict in this case. The council member testified that he was unaware of the fact that
his brother represented the developer in the related litigation until
the day of the vote. In Minnesota the scope of judicial
review of zoning decisions, be they legislative or adjudicatory, is
determined under a reasonableness standard.
Obviously, the court also reviewed the decision to determine
if it properly applied the law. Plaintiffs
argued that the city council did not make the required finding of unnecessary
hardship. Under Minnesota law,
variances may be granted under circumstances other than those where
to deny them would essentially constitute a regulatory taking. Undue hardship may merely mean that the owner
would like to use its property in a manner that is otherwise prohibited
by the zoning ordinance. The
court found that the current request for variances must be measured
against the earlier decision to issue variances for the same development. In addition, the court found that the land
had unique circumstances, including severe slopes. Finally the court found that the issuance of the variance would
not alter the essential character of the neighborhood. Thus the decision to issue the variances was
reasonable and would not be disturbed by the court. It is clear that Minnesota’s treatment of variances is a minority
view and makes it much more likely for a developer to receive a variance
than in most other states. The
court did not distinguish between use and area variances, although it
appeared from the facts in this case that only area variances were involved. [iii] City of Battle
Creek v. Madison County Board of Adjustment[326]
The board granted a setback variance
to allow for the construction of a garage on a residential lot. The variance was issued because the lot was
unusual in that it was bordered by platted streets on three sides. The city appealed the decision and the trial
court reviewed the record evidence, including a transcript of the board’s
proceedings. In Nebraska, the
appellate court reviews the decision of the district court to see if
that court’s decision is an abuse of discretion.
Nebraska has a statutory provision on variances that allows them
to be granted only if the unusual characteristics of the property existing
at the time of the enactment of the ordinance would result in peculiar
and exceptional practical difficulties or undue hardship.[327] The board must make findings consistent with
the statutory mandate. In this
case the board’s record did not reflect whether certain exhibits that
were presented to the trial court were before the board.
There was insufficient testimonial evidence to support the required
hardship and unusual circumstances criteria.
The district court received additional evidence which it is entitled
to do. But that evidence, according
to this court was not sufficient to support the statutory requirements. Thus the variance application must be sent
back to the board so that their deliberations conform to Nebraska law. [iv] Craik v. County
of Santa Cruz[328] The county zoning ordinance zoned a
parcel of beachfront property as SFR with a minimum lot size of 8000
square feet. FEMA regulations
also applied to the lot so that the lowest habitable level of a residence
must be 22 or 23 feet about mean sea level.
Two adjacent lots were sold to two separate parties.
The owner of one lot sought a building permit and a variance
to construct a new home. The
variance was needed because of the floor-area ratio, height, setback,
parking and decking requirements.
The planning commission, after getting a remand from the board
of supervisors granted the variance as to all standards.
They specifically found that the variances were caused by special
circumstances relating to the size and shape of the lot that deprived
the owner of the same privileges of ownership enjoyed by his neighbors.
They also found that the variance would be in harmony with the
general intent and purpose of the zoning ordinance and would not constitute
a grant of special privileges to the owner.
The neighboring owner challenged the decision as an abuse of
discretion. California, like Nebraska, has a statutory
provision setting forth the minimum requirements for the granting of
a variance.[329] It specifically authorized variances to be
granted subject to conditions that are not inconsistent with the limitations
affecting other nearby parcels. In
addition, the statute recited the usual requirement that variances must
only be granted to prevent undue hardship or practical difficulties
due to unusual circumstances not generally affecting other parcels. In California, judicial review of a variance decision is based on
the determination that such a decision is quasi-adjudicatory in nature. Therefore the reviewing court applies a substantial
evidence test, buttressed by an abuse of discretion standard. The court must review the findings of the decision-maker
to determine whether they “bridge the analytic gap between the raw evidence
and the ultimate decision or order.”[330] However, the reviewing court should not substitute
its judgment for that of the decision-maker. The court rejected the plaintiff’s
claim that only physical disparities between parcels can justify the
issuance of a variance. Under
FEMA regulations, the owner would not be able to have part of his habitable
premises on the ground floor. Thus
the special need for the height and floor area variances.
Likewise, while there is a general county policy to limit residences
along the ocean to two stories, the policy noted that in appropriate
circumstances variances from the policy may be granted. Thus, there was substantial evidence in the
record to support the commission’s decision to issue the variance. [v] Baker v. Browlie[331] In the last of 3 reported cases relating
to a homeowner’s attempt to remodel his waterfront home,[332]
the court reviewed whether the conditions placed on an area variance
by the ZBA were appropriate. Conditions
placed on variances must be directly related and incidental to the proposed
use of the property, must be consistent with the spirit and intent of
the ordinance and minimize any negative externalities resulting from
the variance. Two of the conditions related to the construction
of a pagoda and could not be enforced since in one of the earlier decisions
the court had found the variance denial arbitrary and capricious and
had ordered the ZBA to allow the structure to be built. Since the effect of those conditions would
be to bar the pagoda from being built they are contrary to the earlier
court holding. Another condition
required the metal posts supporting the removable awnings be sunk two
feet into the ground. The court found that condition arbitrary since
there was no evidence showing that the two foot depth was required for
safety purposes. One condition
relating to parking was also inconsistent with the earlier decision
and was overturned. One undefined condition was found to bear no
relation to the requested area variance and was also annulled. A condition on the seasonal use of the awnings
was found to be unreasonable, arbitrary and capricious. Two conditions relating to the size and shape
of the proposed porch were found to be reasonable. Finally the condition requiring the owner to
submit his plans to the village was also upheld, so long as the village
understood that the building project must be allowed. The court’s frustration was evidenced by the following concluding
remarks: It
is clear that the protracted litigation between the parties has been
fueled by mutual antipathy. Both
parties and their respective counsel have advanced arguments that border
on the frivolous.. . it is apparent that certain members of the ZBA
behaved in a heavy-handed manner. Concomitantly,
the petitioners have taken intransigent positions, intractably refusing
to compromise. It is the profound hope of this court that
with this decision and order, this matter has been resolved, once and
for all, and that this matter will not return to this, or any other
court.[333]
[vi] French Quarter
Citizens for Preservation of Residential Quality, Inc. v. New Orleans
City Planning Commission[334] An owner of a drugstore in the French Quarter sought a variance to
expand the amount of floor space devoted to his commercial activities. The BZA approved the variance with certain
conditions. The property is
located in a special district that allowed intensive commercial use,
consistent with the historic character of the French Quarter.
The ordinance placed a 7500 square foot limitation on floor area. The drugstore wanted to have 12,500 square
feet, but only 6700 square feet would be open to the public. The remainder of the area would be administrative
space on the second floor of the building. A neighborhood association
challenged the BZA action. The court rejected the plaintiff’s
claim that courts should apply a “strict scrutiny” scope of judicial
review to zoning decisions affecting the French Quarter.
The court instead applied the traditional soft glance approach
under the arbitrary, capricious and abuse of discretion test. The plaintiff also challenged the BZA’s power to issue area variances.
The court examined the ordinances and found that the BZA has
both the power to hear administrative appeals from permit decisions
and the power to grant variances. Louisiana law required the BZA to make a finding
that practical difficulties or necessary hardships interfere with the
owner’s use of the land under the zoning ordinance. The court reviewed the evidence before the BZA and found that the
variance was granted in large part due to the owner’s agreement to limit
the amount of floor space dedicated to commercial sales to a lesser
amount than would otherwise be authorized by the ordinance. That evidence was sufficient to show that the BZA decision was not
arbitrary, capricious or an abuse of discretion. [vii] North Avenue
Properties, LLC v. Zoning Board of Appeals[335] An owner sought several permits from
the city to operate a retail sales business in a planned manufacturing
district and to locate an off-street parking facility to serve that
business located in a general manufacturing district.
They were advised that a variance would be needed for both locations
because the proposed uses were not allowed in their respective zoning
districts. The owner then filed an application for two
variances. Plaintiff, a neighboring
owner, received notice of the variance request and filed a written objection.
The board, after a public hearing, issued both variances.
Plaintiff sought judicial review of the board’s decision. In Illinois, both the trial court and
the appellate court review the record before the zoning agency to determine
whether the findings and orders are against the manifest weight of the
evidence or that the agency acted arbitrarily or capriciously. Arguments that are not raised before the agency are waived. The court upheld the trial court’s dismissal
of certain of plaintiff’s claims and proffered evidence because the
plaintiff had not raised the claim that the owner and the owner’s attorney
had failed to provide them information regarding their proposed uses. The court could not take judicial notice of
some of the proffered items because the items were not part of the public
record or otherwise memorialized to the degree required in order to
take judicial notice. Plaintiff also challenged the board
finding that the proposed retail use will have sufficient off-street
parking. Under the zoning ordinance
where parking is provided at a separate location, the facilities must
be in the same possession as the zoning lot occupied by the building
for which the parking lot is an accessory use.
The owner was required by the ordinance to provide 61 parking
spaces. Some of the spaces were arranged through a
license agreement with a nearby parking lot operator that the court
felt insufficient to meet the ordinance requirement since the spaces
were not reserved exclusively for the owner’s use.
While the owner asserted that the agreement was a lease of parking
spots the court looked through at the substance of the agreement to
conclude that the agreement was revocable, a hallmark of a license arrangement. Finally, the court refused to defer
to the board’s interpretation of its parking requirements noting that
as to questions of law a reviewing court is not bound by the agency’s
interpretation. Only if the
language of the ordinance is ambiguous should the court give some weight
to the agency interpretation. The court found that the language was unambiguous
and required the owner to conform to all of the requirements of the
ordinance before a variance should issue.
Here, the owner did not comply with the parking requirements
and thus no variances should have been granted. [viii] Stop &
Shop Supermarket Co. v. Board of Adjustment[336] A predecessor to the plaintiff received
several variances to operate a retail department store on a 9.7 acre
tract that was split between two townships.
One of the townships zoning ordinances split the tract as well
into two separate districts, one commercial, one residential. The variances essentially allowed the use of the entire tract for
a retail center and parking area. In
1994, plaintiff sought a certificate of occupancy for a supermarket. Supermarket uses were allowed in the general
commercial district attaching to a portion of the parcel. The plaintiff had two alternative plans, one
was to use the existing structure with some modifications, while the
second was to build a new structure of the same size.
The new structure would be located on a portion of tract zoned
for residential use. The board
of adjustment voted to require plaintiff to seek a new variance to operate
the supermarket. Variances are issued to avoid unnecessary
hardship and protect municipalities against constitutional challenges
to zoning ordinances. Use variances
are not to be liberally granted but if the proposed use is deemed to
be “inherently beneficial” the variance should be granted unless the
negative criteria outweigh the benefits of the proposed use. Variances are like real covenants, they attach to the land and
the purchaser takes the land free from the zoning restrictions to which
the variance pertains. The variance
having been issue raises a presumption that the use or structure is
not offensive to the zoning ordinance.
Unless lost by abandonment or non-use, the variance continues
to run with the land.[337] This rule comports with the basic tenet that
land use regulation regulates land, not the owners of land. In this case the earlier variances gave the
prior owner the right to use residentially-zoned land for parking and
for a part of the building used to sell clothing.
The successor in interest can rely on those variances to continue
those types of uses, even where there is a change from ritzy department
store to big box grocery wholesaler.
The township zoning ordinance allowed both retail and grocery
stores in the general commercial zone.
Thus it did not distinguish between the two uses so as to justify
the claim that there was a change in use.
The township cannot require a new variance that would contradict
its earlier findings when it issued the original variances.
The township may still exercise site plan control to minimize
externalities should the plaintiff seek building or construction permits,
but they cannot challenge the validity of the earlier variances given
the owner the right to use a portion of the parcel for parking and retail
sales even though it was in a residential zone. [ix] Cole v. Board
of Adjustment of the City of Huron[338] In November 1997, the owner of three lots sought a variance to construct
a service station and convenience store. The board granted the variance notwithstanding some local opposition. A neighbor filed suit that eventually led to
a remand to the trial court because they had applied the wrong standard
of review.[339] On remand, the trial court again reversed the
board decision because it was illegal and in excess of the board’s jurisdiction
and lacked any findings to support the requirement that special conditions
existed requiring the issuance of a variance. Under South Dakota law, when review of a governmental
decision is made through the certiorari process, the only issue presented
is whether the agency exceeded its jurisdiction.
Under the city’s zoning ordinance, an applicant for a variance
must prove by a preponderance of the evidence that the variance is not
contrary to the public interest and that special conditions exist which
constitute an unwarranted or unreasonable hardship.
It was clear, however, that the trial court again engaged in
a de novo review of the board’s decision, contrary to the holding of
the first remand. There were
findings in the record to support the granting of the variance. While the land was zoned for residential uses, it abutted a state
highway where there were already other commercial uses present. It is the board’s exercise of discretion that
was being challenged, but under the appropriate standard of review for
a certiorari petition, that discretion could not be reviewed by a trial
court.[340] [2]
Intergovernmental Conflicts
[a] Ventura v. City of Seattle[341] Plaintiff operated a rowing club in
a marina. The City sought to
apply its Shoreline Management Program (SMP) to the club structures. The plaintiff argued that the structures came
under the SMP definition of a vessel and were exempt from regulation. The structure consisted of two steel superstructures
welded to steel hulls or floats. Once
moved to the marina area, they have remained at a single site. The structures contain rooms, including locker
rooms and storage areas for shells.
At no time did the plaintiff seek a
building permit to locate the rowing club structure at its present
location. After inspecting the
structure, a City inspector noted several potential violations. Plaintiff then filed an action that challenged the notices of violation
that were issued. The SMP definition of a vessel includes
“ships, boats, barges or other floating craft which are designed and
used for navigation.” Applying
a deferential approach to an agency’s interpretation of its enabling
statute, the court found that the city’s interpretation is not clearly
erroneous. The purpose of the SMP is to protect the shoreline.
The plaintiff’s interpretation would exempt more structures or
facilities that might harm the shoreline environment.
The plaintiff also argued that the federal regulation of navigable
waters and vessels preempted the city’s interpretation.
Only if the plaintiff could show that the vessel being regulated
operated in interstate commerce could the preemption argument succeed. Since the structures were not being used to
navigate in interstate commerce there was no preemption. Plaintiff also made an omnibus due
process and equal protection claim.
Since no fundamental right or suspect classification was involved
the plaintiff had to prove that there was no rational basis for treating
others similarly situated differently.
But plaintiff did not produce any evidence of disparate treatment
of other rowing club operators and thus there was no equal protection
violation. Finally, plaintiff argued that she had received
advice from a city official that a new use permit was not required for
the type of structure she was building so that the city should be equitably
estopped from enforcing the ordinance.
Equitable estoppel against a city is always a tough argument. But the court found that at least a triable
issue of fact existed regarding various city actions in approving boat
moorage permits for the rowing club facility.
Likewise, there was some evidence that a building code official
defined the term vessel in a way that would have excluded plaintiff’s
facility. The court rejected the city’s claim that a
blanket rule prohibits a private party from asserting an equitable estoppel
defense based on the actions of a single official since that official
cannot surrender the government’s police power.[342] Thus, if the plaintiff can prove that there
was reasonable reliance and injury caused by a statement or advice given
by a public official the equitable estoppel defense may be raised.
[b] Village of Ridgefield Park v. New York, Susquehanna &
Western Railway Corp.[343] In 1992 the Railroad began construction
of a train maintenance facility in the Village. It was relocating a closed facility from a
nearby area. The facility was
to be located in a light industrial area that is near a residential
area and park. The Railroad
never applied to the village for any permits at the time of its initial
relocation. The village and the Railroad discussed several
additions to the facility over the next year, amid growing public concern
about the storage of hazardous materials, pollution and noise. The village then brought a declaratory judgment
action seeking to determine if the Railroad was subject to the town’s
zoning and other ordinances. The basic issue was whether the Interstate
Commerce Commission Termination Act of 1995 (ICCTA)[344]
preempted the village from applying its ordinances to the Railroad. In abolishing the ICC and creating the Surface
Transportation Board (STB), ICCTA expressly preempted state and local
“economic regulation” of railroads.
The STB was delegated the authority to determine what type of
state and local regulation should be preempted.
In an administrative decision, the STB had determined that the
ICCTA preempted all municipal zoning regulations as they applied to
railroads. They are preempted because they could be used
to frustrate transportation-related activities and interfere with interstate
commerce. But certain types
of health and safety regulations may not be preempted if their application
would not have the effect of foreclosing or restricting the railroad’s
ability to conduct its operations.
Further, the STB found that railroads are exempt from local building
codes, but may not be exempt from local fire, health, safety and construction
regulations and inspections. Railroads
do not have to submit to any permit requirements because of the potential
for delay. Thus, the village cannot apply its zoning ordinance
to the Railroad, but it may not be denied access for reasonable inspection
of the premises to determine if health hazards are present. The village may fairly impose its fire, health
and plumbing regulations so long as it does not interfere with the Railroad’s
ability to operate.
[c] Florida East Coast Railway Co. v. City of West Palm Beach[345] As with Ridgefield Park, this case
involved the application of the ICCTA to a local zoning ordinance. FEC owned a 24.5 acre tract in the city upon
which it operated five switching tracks, an office complex, warehouses,
storage facilities and two loading and unloading tracks. In 1999, FEC leased a portion of the tract of land to a corporation
wanting to use it as an aggregate distribution facility to receive trainloads
of limerock and then distribute them to trucks for transportation to
the eventual users. The city
issued several cease and desist orders to both FEC and the lessee asserting
that their operations violated the zoning ordinance.
The court found that the transfer of control over the yard from
FEC to the owner of the aggregate business was not allowed since the
area was zoned for multi-family residential development. The court had to determine whether
the express preemption provisions of ICCTA prevented the city from enforcing
its zoning ordinance. While
the ICCTA language is written rather broadly so as to support a finding
that the federal government has occupied the field of regulation, the
key issue was defining the field. ICCTA
is exclusively concerned with the regulation of rail transportation.
Rail transportation has been the subject of extensive federal
regulation for over a century. Thus
it is clear that Congress intended to preempt state or local regulation
of railroads and transportation. But
the city ordinances in this case are not aimed at the railroad or rail
operations of FEC. The court drew a very fuzzy line between generally
applicable ordinances that target, rather than affect, railroad operations.
The court concluded that neither FEC, nor its lessee were engaged
in rail transportation activities on the site.
The STB has recognized that certain types of non-transportation
facilities owned or operated by railroads may not be covered by the
ICCTA preemption provisions. The aggregate owner was not processing the rock at the site. The major function being carried out was distribution,
from railroad cars to trucks. The
court nonetheless concluded that those distribution, as opposed to transportation,
operations were not integrally related to the provision of interstate
rail service. Thus he concluded
that the city ordinance could be applied to stop the changed use of
the facility. In a somewhat
surprising turn of events, the federal court here narrowly applied preemption
doctrine, while the New Jersey Supreme Court in Ridgefield Park more liberally applied the
same doctrine to prevent local regulation of railroad activities.
[d] City of Bridgeton v. City of St. Louis[346] This case involved a classic battle
between two cities regarding the ability of one to impose its zoning
ordinance on the other. Both
cities are home rule cities. St.
Louis owns and operates Lambert Airport.
It is located outside of St. Louis and within the corporate boundaries
of Bridgeton. St. Louis planned to expand the airport, including
a major runway in order to deal with overcrowding. The Bridgeton zoning ordinance did not allow
for airport uses in the area covered by the proposed expansion. Bridgeton sued to prevent St. Louis from implementing
the expansion program envisioned in the airport’s master plan. Missouri has a statute that provides
that “no airport or landing field shall be established or located in
any … city.. in violation of any plan . . or zoning regulation restricting
the location of an airport or landing field…”[347] That provision, however, had been interpreted
in a prior case litigated by these same two cities as only applying
to the establishment of a new airport and not to the operation of an
existing airport.[348] The court found that the addition of a new
runway is not the establishment of a new airport in a new location. Thus the statutory conflict provision was
found not to be applicable. Bridgeton also argued that St. Louis
must still seek Bridgeton permits or approvals as part of Bridgeton’s
home rule status. They argue
that until St. Louis exhausts its administrative remedies it cannot
begin the expansion project. The court rejected the application of the exhaustion
doctrine to this case since it only involved questions of law, suitable
for a court to determine. In dealing with issues relating to
intergovernmental conflicts, the court applied a balancing of interests
test. The court considered such
factors as the nature and scope of the instrumentality seeking immunity,
the kind of function or land use involved, the extent of the public
interest to be served and the effect the local land use regulation would
have on the enterprise. The trial court had applied those factors and
determined that St. Louis should be immune from Bridgeton regulation
because of the importance of expanding Lambert Airport. The court did consider the fact that the expansion
would take over 18% of Bridgeton’s land area, including 1900 residences,
6 schools, 2 parks, 6 churches and 75 businesses. While Bridgeton may suffer the area as a whole
will receive a substantial benefit from the airport expansion project.
Thus the court upheld the granting of an injunction prohibiting Bridgeton
from interfering with the expansion project.
[e] Kent County Aeronautics Board v. Department of State
Police[349] In 1984 the State Police conducted
a study showing serious problems with the existing radio system. Six years later the Michigan Legislature appropriated
substantial funds to construct a new system. After competitive bidding, construction of
the approximately 181 new towers was to begin in 1994. In 1997 the State Police notified Ada Township
that it was going to construct a tower at a site and that the township
needed to issue a CUP authorizing construction or to select an alternate
site that met all of the performance criteria needed to comply with
State Police requirements. The
Township Planning Commission issued the CUP but limited the permissible
height to 175 feet and applied setback and other restrictions.
The State Police began construction and stopped after the township
agreed to look for an alternate site.
Several property owners abutting the proposed alternate site
then sued the State Police seeking them to continue construction on
the original site. The FAA and the Michigan Bureau of Aeronautics both reviewed the
tower plans and found that they would not interfere with air navigation. Several other parties filed separate litigation
in favor of, or opposing, either the original or alternate site. The key issue for the court was whether
the State Police was exempt from the local zoning ordinances in the
construction of the tower. The
court interpreted the state statutes granting the State Police the power
to construct the radio system. It
specifically provided for the alternate site option should the local
agency not grant the CUP. The
clear impact of that language was that municipalities should not be
able to stand in the way of the radio system that was necessary to protect
the safety and general welfare of all of the state’s citizens.
The state specifically gave local governments two options, approve
the original site or find a suitable alternative within 30 days.
No other options are available.
The preemption of local zoning ordinances did not merely apply
to the use restrictions. Thus,
area or bulk limitations were also preempted by the state statutes. As to the suit by the township, it lacked
standing to challenge the constitutionality of a statutory provision
enacted by the Legislature. Applying
the classic creature theory doctrine of state/local government law,
the court found that the federal constitutional protections did not
apply to a local governmental unit.
The court also upheld the State Police’s regulations that set
forth the criteria by which alternate sites would be judged.
[f] In re Commercial Airfield[350] The owner of an airport located within his 600 acre farm was told
by the District Environmental Commission that he needed to apply for
a permit. The airport facilities
included the runway and a maintenance shop.
A crop-dusting business operated out of the airport. The Environmental Board found that the state statute and regulations
were not preempted by federal statutes relating to airports. The court deferred to the Board’s conclusion
of law even though they involved issues of federal preemption. While the federal statutes give the FAA exclusive
jurisdiction over airspace, they do not preempt local land use regulations.
Land use regulation, as opposed to noise regulation or airspace
or scheduling regulation, are not either expressly preempted or preempted
by the FAA’s occupation of the field. Since the land use regulations of the state
do not have an impact on air safety concerns, the state is free to apply
those regulations.[351]
[g] City of New Rochelle v. Town of Mamaroneck[352] The city was assisting IKEA, a home
furnishings superstore, to locate on a 16.4 acre tract on the eastern
border that the city shares with the town.
In addition to a lot of local opposition in the city, the town
has also actively opposed the project and the city’s attempt to condemn
the land. In fact the town enacted an ordinance giving
its town board review power of major development projects outside of
the town if they would impact the town.
The city then brought a state court action seeking to invalidate
the town’s attempt to exercise extra-territorial powers. They asserted
8 state and federal constitutional and statutory claims ranging from
a violation of the state constitution’s home rule provision to federal
due process and equal protection violations. The case was removed to
federal court. The town initially asserted that the
city lacked standing since its ordinance only applied to developers
and not to other cities. The
court, however, found that the ordinance applied to all development
projects undertaken that abut, adjoin or was adjacent to the town.
Thus the city would fall under the terms of the town ordinance
and suffer an injury in fact since the two communities shared a 3.5
mile border. The town also claimed
that the suit was not ripe since neither the city nor IKEA had undergone
developmental review under the town ordinance.
The court agreed that as to the regulatory takings claim, that
case was clearly not ripe for review since no final decision had been
made. But as to the other claims, including the due
process and equal protection assertions, the court found them ripe for
review since the injuries arose from the enactment, not the application,
of the ordinance. The court analyzed the federal commerce
clause claims under both the dormant commerce clause doctrine and the
incidental effect doctrine. Only
if the ordinance discriminated against out-of-state interests would
it fall under the dormant commerce clause doctrine.
Because no interstate interests are effected by the ordinance,
only intrastate interests, the court dismissed the dormant commerce
clause claims. But under the
incidental effect doctrine, the court finds that at this summary judgment
stage, allegations have been made that the ordinance will impede the
free flow of goods in commerce and thus have an incidental effect on
interstate commerce. Because the incidental effect doctrine requires
the court to engage in a balancing test, the court wanted further discovery
on the issue before it made a definitive ruling. While it is clear that a sub-state
unit does not have either due process or equal protection rights against
the state, the city argued that such rights exist as between co-equal
sub-state units.[353] Neither the due process nor equal protection
clauses apply to the internal political organization of a state. The court found that the general rule should
be extended to the situation where sub-state units are suing each other. Their relationship is also a matter of the
internal organization of a state and the Fourteenth Amendment should
not apply.[354] Thus the due process and equal protection claims
are dismissed. The court also dismissed claims under
§ 1983. The court found that
a municipality may not bring such an action to vindicate its sovereign
rights that it alleged were infringed upon.
While municipalities are persons who may be liable when they
violate other citizen’s constitutional or statutory rights, they are
not citizens or other persons who may make such claims.[355] The court concluded that § 1983 was enacted
to give private citizens a remedy against unconstitutional state action. It would run contrary to that objective to
allow municipalities to sue other municipalities seemingly for the purpose
of recovering attorney’s fees under § 1988.
The court finally declined to exercise
supplemental jurisdiction to hear the state constitutional and statutory
claims even though the federal suit was kept alive to deal with the
commerce clause issue. Because
the state law issues were unique and not subject to easy determination,
the court found that remanding those issues to the state court was the
most appropriate response to its federalism and comity concerns. [3]
Exclusionary Zoning
[a] City of Freeport v. Vandergrifft[356] Vandergrifft asked the city manager
whether she could locate a HUD-code manufactured home on a particular
site. In response to an affirmative
answer she placed a home on the lot.
The city manager was replaced and then the city filed a notice
of violation alleging that the zoning ordinance did not allow a manufactured
home in her single-family residential district.
The owner claimed that the zoning ordinance, insofar as it prevented
a manufactured home from locating in the district was preempted by the
Texas Manufactured Housing Standards Act.[357] The ordinance did not distinguish between mobile
homes and manufactured homes in the types of structures that could locate
in the single-family residential district. The Act, on the other hand, defined the terms differently. In fact,
the Act specifically prohibited cities from categorizing manufactured
homes as mobile homes. Because
the city’s zoning ordinance defined mobile homes as manufactured homes
and treated Vandergrifft’s manufactured home as a mobile home, it was
preempted by the express language of the Act.[358]
[b] Town of Telluride v. Lot Thirty-Four Joint Venture, LLC[359] A major problem in resort areas, especially
the ski areas of the intermountain west is the problem of finding
affordable housing for the service employees that are required to
operate resort-type facilities.
This case represents one town’s attempt to deal with that problem. In 1994, the town enacted an affordable housing
ordinance that required owners engaging in new development to mitigate
the effects of that development by generating affordable housing units
for 40% of the new employees crated by the development. For each employee the owner had to find 350 square feet of housing.
To comply with this inclusionary zoning requirement, the owner
had several options including, constructing the new units and using
deed restrictions to keep them affordable, imposing deed restrictions
on existing units to achieve affordable housing, paying fees in lieu
of deed restrictions or conveying land to the town with a fair market
value equivalent to the in lieu fee. After adopting the ordinance, the town promulgated affordable housing
guidelines dealing with rental rates and other details. Plaintiff was a developer who challenged the
ordinance claiming that it violated a state statute that expressly
precluded municipalities from enacting “any ordinance. . . which would
control rents on private residential property.”[360] The court first decided the issue of
whether the inclusionary zoning ordinance falls within the statutory
prohibition of a rent control regulation.
There was no statutory definition of rent control. The court applied various canons of statutory
construction, including the plain meaning canon and a canon that a
court should not create an exception that the plain language does
not warrant. The court defined
rent control are “allowable rent capped at a fixed rate with only
limited increases.” In looking at the ordinance and the guidelines,
the majority of the court found that its main purpose or function
is to suppress rental values below market value. The ordinance was not saved by the fact that it only covered new
construction, although in the classic rent control schemes, it is
the existing stock that is rent regulated while new housing stock
may or may not be rent regulated.
The court did not look at the legislative history of the statute’s
enactment that apparently showed that it was a reaction to a citizen
initiative in Boulder designed to impose the more classic type of
rent control regulatory scheme.[361]
The second issue related to the fact
that Colorado has a form of constitutional home rule that is commonly
labeled non-preemptible. As
to matters of local concern, the state is powerless to enact legislation
that will effect a home rule community.
The town is a home rule entity and argued that rent control
and affordable housing are matters of local concern.
In determining whether a matter is of local, state or state/local
concern, there is no single test. The court considered a number of factors, including
the balancing of the competing state and local interests, the need
for uniformity and the spillover or externality factor. The legislature clearly stated in the statute
that rent control was a matter of statewide concern. Such pronouncements are obviously not binding
on the courts, but Colorado, unlike California, gives great weight
to such self-serving statements.
In looking at the uniformity factor, the court found the need
for uniform access to markets for rental housing to be an important
state concern. There appeared to be some bootstrapping arguments
raised here, since the rental market in an isolated area such as Telluride
would have little statewide impact.
The court also found that rent control is part of a statewide
regulatory scheme relating to the landlord/tenant relationship. Finally the court looked at the externality factor and concluded
that it too favored a finding of statewide or at least state/local
concern. The ordinance noted
that the town was concerned with the fact that in the absence of affordable
housing, service employees were having to live great distances from
the town. That led to regional problems, including traffic
and overcrowding in nearby communities. The court did not deal with the fact that the town was seeking to
internalize, not externalize, the problem, through the affordable
housing ordinance. If the
ordinance was effective, regional impacts would be less than if the
marketplace was to operate without such regulation.
The court also concluded that a number of other states have
adopted legislation dealing with rent control and have thus treated
it as a matter of statewide concern. Thus, the court found the ordinance invalid
because it violated the statutory prohibition against rent control.
[c] King v. City of Bainbridge[362] King owned a parcel of land partially
located within the city and zoned for duplex and multi-family residential
uses. The ordinance prohibited
the placement of mobile homes with a HUD sticker in that district.
All homes must receive a permit before they can be located
within the city. King placed a mobile home on her parcel. The home was located 90% within the city limits
and 10% in the county. She
was served with a notice of violation and told to move the home to
another part of her parcel that would be outside of the city limits. King ignored the city’s warning and improved her mobile home. King did not participate in any city council
or city agency hearings that were called to deal with her mobile home. She then filed suit claiming that the ordinance
was unconstitutional on its face.
The trial court dismissed the suit because King had not challenged
the ordinance or its application to her mobile home in the city proceedings. The court found that where an owner challenges
the constitutionality of an ordinance on its face, there is no need
to exhaust any administrative remedies.
Thus it remanded the case back to the trial court to determine
whether or not the ordinance was constitutional.
[d] Bixler v. LaGrange County Building Department[363] In 1999, the county granted a permit
to neighbors of the plaintiffs to locate a manufactured home on a
½ acre lot. The neighbors
asserted that under the zoning ordinance, manufactured homes were
mobile homes that could only be located in a designated mobile home
park. The county urged that
the suit should be dismissed because the plaintiffs had not exhausted
their administrative remedies by filing an appeal before the BZA.
While normally a party must exhaust her administrative remedies
before a trial court would have subject matter jurisdiction, there
is an exception to that rule that the court found applicable.
The exhaustion requirement is held to apply only to the permit
applicant and not to a neighbor challenge, in part because they would
probably not have notice and an opportunity to participate in the
original permit decision. A building improvement permit decision is
normally not subject to a hearing or notice.
If a neighbor did have notice of the permit application, the
exhaustion procedures would still be optional.
Since the neighbors did not have notice of the original permit
application and since they chose not to avail themselves of the BZA
appellate procedure, the trial court had subject-matter jurisdiction
over the complaint.
[e] Home Builders Association of Maine, Inc. v. Town of Eliot[364] The Town has enacted a series of growth
control ordinances designed to allow development that is consistent
with orderly and gradual expansion of community services. The ordinances require all developers to apply for a growth control
permit before they would be entitled to a building permit. There was a limit of 48 growth control permits
per year, distributed on a first-come, first-served basis. In a 20 year period, the cap has been reached
5 times, although in recent years the demand has been close to or
exceeded the cap. The plaintiffs
sued claiming that the ordinance was a disguised moratorium ordinance
that did not meet the state-imposed requirements for such ordinances. The Town argued that the growth control
ordinance was a permanent regulatory program and therefore could not
be a moratorium ordinance, that by definition is only applicable for
a limited period of time. The
court interpreted the statute as dealing with temporary deferments
of development whether or not the ordinance creating the deferments
was considered temporary or permanent. But the ordinance is not invalid because the
state statute prohibited local governments from imposing a total ban
on development. This ordinance
allowed up to 48 permits per year.
There is no withholding of development authorization under
the terms of the growth control ordinance.
The management, as opposed to the cessation, of growth is a
proper subject of local planning efforts. The town has reacted to increases in demand
by increasing the caps to reflect that demand and the ability of the
town to service the new development.
[f] Caswell v. Pierce County[365] An owner sought a CUP to expand an
existing mobile home park in a rural part of the county. At that time the zoning ordinance classified
the land as a general-rural zone that allowed mobile home parks at
a density level greater than that sought by the owner. Before a decision was rendered the county adopted an ordinance
designating an interim urban growth area pursuant to Washington’s
Growth Management Act that would not allow the residential development
to occur. Nonetheless, the county approved the CUP and
some variances because it determined that the owner had developed
a vested right to have his CUP application judged under the ordinance
in existence at that time. A
neighbor challenged the decision.
The plaintiff claimed that the county’s IUGA ordinance failed
to comply with the state’s GMA. That issue the court concluded had to be brought
before the growth management hearings board and could not be reviewed
by way of a Land Use Petition Act petition.
The court also interpreted the interim IUGA ordinance specifically
intended to leave in place the pre-existing general-rural zone which
permitted mobile home developments that would not exceed 10 units
per acre. Since the owner’s development did not violate
that density cap, the CUP decision would be affirmed.
[g] Montgomery Crossing Associates v. Township of Lower Gwynedd[366] Plaintiff owned a 67.8 acre tract of
land at the intersection of two state highways. The township zoned the land for SFR development. Plaintiff filed a “curative amendment” challenge
to the ordinance asserting that there was both de facto and de jure
exclusion of both mobile homes and large commercial establishments. Remarkably, the township held 57 separate
public hearings on the request and wrote a 108-page decision rejecting
the curative amendment. The
trial court reversed and granted plaintiff’s requested curative zoning
changes. Even where a party is challenging an
allegedly exclusionary zoning ordinance, the burden of proof is on
that party. Plaintiff had
asserted that the existing zoning ordinance did not allow for shopping
centers. The township interpreted its general business
district as allowing shopping centers and most types of commercial
uses. The trial court ignored
the township’s interpretation, a clear intrusion into the deference
afforded local agencies in the interpretation of their own ordinances
or regulations. While the ordinance might not be sufficient
to accommodate a big box retailer who requires substantial space,
the ordinance clearly allowed for retailers who would accept a smaller
space within the general business district.
An ordinance is not exclusionary merely because it does not
allow for every type of business model, as long as it does not exclude
a particular use or group of uses. On the claim of excluding mobile homes,
the township ordinance included a residential district where mobile
homes are permitted. Approximately
45 acres of land were included in that district.
The owner of that parcel, however, chose to develop the premises
for another type of permitted use.
The fact that no other lands are currently zoned for mobile
homes does not render the ordinance exclusionary.
The developer of the tract of land had the option to develop
mobile homes or apartments and chose apartments.
The plaintiff cannot claim that the township excluded mobile
homes and seek to place them wherever the plaintiff desires.
[h] Toll Brothers, Inc. v. Township of West Windsor[367] A developer sought a builder’s remedy to construct a large-scale
single and multi-family residential project that would include 175
affordable rental units. He
asserted that the existing zoning ordinance violated the Mt. Laurel mandate. The 293-acre tract was a part of a consent
judgment entered in 1985 dealing with the township’s fair share allocation.
The township’s fair share allocation was fixed at 929 units
of affordable housing. The court adopted the trial court’s finding
that the township ordinance denied residents a realistic opportunity
for a fair share of affordable housing because it required inclusionary
developers to “front-end” the costs of sewer financing and construction
and because several of the existing sites were so environmentally
constrained or subject to open space or other requirements that they
could not realistically be developed.
Thus the builder’s remedy was appropriately granted by the
trial court to overcome the Mt. Laurel
violation.
[i] Dews v. Town of Sunnyvale[368] After surveying a major regulatory
takings challenge to its zoning ordinance, the town was sued claiming
that the ordinance was exclusionary and violated the provisions of
the Fair Housing Act and various civil rights statutes.
In a lengthy opinion by Judge Buchmeyer the court agreed with
the plaintiffs and granted the requested relief.
The court described the town as a sylvan 11,000 acres of rolling
hills with only 2000 residents, no shopping malls and no apartments. Plaintiffs challenge to the one-acre minimum lot size zoning requirement
and a total ban on MFR development was based on the town’s alleged
intent to exclude minority families and the effect of such an ordinance
on the region’s black population.
One of the plaintiffs had submitted a PUD application for a
multi-family development that had been rejected. The Fair Housing Act expressly prohibits
discrimination in the sale or rental of a dwelling on the basis of
rent. It has been interpreted
to apply to municipalities who use their zoning powers in a discriminatory
manner.[369] There are two ways to show a FHA violation,
intentional discrimination or by looking at the significant discriminatory
effects. For the civil rights
claims under §§ 1981, 1982, 1983 and 2000d, the plaintiffs are required
to prove discriminatory intent.
Discriminatory effect may be proven by showing either an adverse
impact on a particular minority group or harm to the community generally
by the perpetuation of segregation.
Once the plaintiff makes a prima facie case of discriminatory
effect, the burden shifts to the government to show a compelling state
interest. Discriminatory intent, on the other had, requires the plaintiffs
to establish a fact issue as to whether the defendant’s stated reasons
for its actions or decisions are pretextual in nature and that a reasonable
inference that race was a significant factor in the decision. Using the Arlington Heights factors one
can prove discriminatory intent indirectly if one can show discriminatory
impact, historical background, specific sequence of events, departures
from procedural and substantive norms and the legislative or administrative
history of the decision. Because Judge Buchmeyer was holding
a bench trial, he was required to weigh the credibility of the various
witnesses presented by the plaintiffs and the town on these highly-charged
factual issues. By and large
the court found the plaintiff’s witnesses highly credible while finding
many of the defendant’s witnesses, including Bob Freilich, less credible. In addition, the court studied the town’s
demographic and employment history showing a slow and steady growth
in population with most of its employment coming in the basic employment
sectors. In 1990, the resident
population was 94% white, 0.72% black with a slightly higher percentage
of Hispanics. The court also reviewed the planning and zoning
history of the town starting with the 1965 comprehensive plan. That plan specifically included an anti-growth
bias in order to discourage premature development. The court found that one of the reasons for
the town’s incorporation and anti-growth bias was its fear of public
housing projects being located there.
The 1965 plan called for MFR development on 93.67 acres out
of the total town acreage of 3535 acres.
The 1965 zoning ordinance, however, only contained 4 SFR zones, ranging
from a 12,000 to a 40,000 square foot minimum lot size. In 1971 the town passed a resolution banning
the development of apartments and town houses.
The resolution was enacted in response to a developer’s request
for a townhome development on a 89.3-acre tract.
In 1973 the zoning ordinance was amended to require a minimum
lot size of 1 acre throughout the town.
In 1986 the comprehensive plan was revised.
Although the planning consultant recommended inclusion of a
substantial MFR district, the plan as adopted allowed cluster residential
on 1.93% of the acreage and MFR on 65 acres or 1.16% of the land. The zoning ordinance was then amended and included one duplex district
that was not described in the plan and given a density of 2 units/acre,
while the MFR district was given a density limit of 4 units/acre.
The rest of the town was zoned for SFR with a 1 acre minimum
lot size. In 1985 the town
rejected a request to participate in the Dallas Housing Authority’s,
Section 8 program. There
was a further revision to the comprehensive plan in 1993. While still in a slow growth mode, the Freilich
plan called for more intense development than was presently allowed
in the town. There was also
an analysis that water and other services were sufficient to allow
for the increased density development.
The town, however, rejected Freilich’s recommended alternative
and stayed with the one acre zoning option.
The town lowered all of the recommended density limits for
the proposed new residential zoning districts.
The land use map located the urban density residential district
in one small area and the only other residential district with a density
of more than one unit per acre in another area that did not have available
sewer services. The town in
1993 also amended its zoning ordinance. The ordinance had very low base densities for
the residential districts but allowed a bonus or cluster option to
give developers up to an additional 6 density units per acre to concentrate
the units and dedicate the remaining area to open space. A density bonus provision for assisted or subsidized housing is
conditioned and limited. The
result of the 1993 ordinance was not startling in that almost 93%
of the town was limited to residential development on one acre or
more lots. The town asserted that one of the plaintiff-intervenors
lacked standing to sue because its alleged claim arose out of the
tabling of its rezoning petition.
The court found that the intervenor had suffered an injury
in fact since it was prepared to pay the costs attributable to its
project as a condition of the zoning.
Another plaintiff organization was found to have standing as
a replacement for the original plaintiff who had died several years
after the litigation was commenced. In applying these facts to the law
as set forth in Huntington and Arlington Heights, the court found that the
town’s zoning and planning regulations had a discriminatory effect
on blacks. The ban on apartments
placed a disproportionate harm on African-Americans because in Dallas
County, African-Americans use rental housing to a much greater extent
than whites. In addition, the ban eliminated much of the
type of housing that would qualify for various public assistance programs. The one-acre zoning also has a discriminatory
effect by increasing the cost of housing. The racial composition of those who can afford
housing in the $ 150,000 and over price range is analogous to the
racial composition of the town. The
court also found that various town actions perpetuate racial segregation
in the county. When compared
to the adjoining cities of Garland and Mesquite, that both allow substantial
MFR development, the racial make-up of Sunnyvale reflected the clear
impact to keep minorities out of the town.
In looking at the census tracts for those two cities that immediately
adjoin Sunnyvale, racial minorities make up a much higher percentage
of those areas than they do in Sunnyvale.
The court also found that there was no legitimate bona fide
governmental interest to support the one acre zoning.
The problem of sewage disposal and the use of septic tanks
was found to be make weight and solvable by other means.
There were also less discriminatory alternatives to the one
acre zoning regulation that would still allow the town to achieve
its legitimate objectives without excluding African-Americans.
Finally the court found that the town acted with discriminatory
intent under the FHA in maintaining the one acre zoning and in tabling
the rezoning request. In applying the intent standards of Arlington Heights
to the civil rights claims, the court also found an intent to discriminate
based on the historical background of the one acre zoning requirement,
the failure to execute cooperation agreements with public housing
authorities, the departure from normal procedures when dealing with
requests to build MFR and the discriminatory impact of the decisions. The court ordered that the town be
enjoined from implementing its present zoning and subdivision ordinances. It also ordered the town to adopt zoning and
subdivision ordinances to remedy the past exclusionary practices,
including procedures to encourage the development of MFR and other
affordable housing. Finally
it ordered the town to take affirmative action to change its reputation
as a municipality hostile to MFR and affordable housing and minorities.
[j] Northfield Development Co., Inc. v. City of Burlington[370] The city zoning ordinance contained a manufactured home overlay district.
Two separate requests to have the overlay district apply to
two parcels were rejected. In the first case, the seller agreed to a $
2000/acre reduction in the purchase price if the property was not
rezoned. The city did not hold a public hearing on that
rezoning request. Plaintiff
was able to show that only 2 of 12 requests for overlay district rezoning
had been approved and none for the prior 3 years.
The overlay district set forth various performance standards
regarding minimum parcel size. The
overlay district was allowed as of right in three extant residential
zoning districts. North
Carolina law prohibited local governments from adopting zoning ordinances
that have the effect of excluding manufactured homes from the entire
jurisdiction.[371] The court found that the plaintiffs
had not shown that manufactured homes were excluded from the city. It was admitted that the city had approved
2 overly district petitions. That
meant that there was not a total exclusion.
In addition, while the language of the ordinance suggested
that the overlay district was allowed as of right, the court’s reading
of the zoning ordinance gave the city the discretionary right to make
the overlay district designation. The court, however, did not dismiss the claim
that both decisions were arbitrary or capricious. There was also a procedural dispute
over whether the plaintiffs could depose the mayor regarding his alleged
bias against manufactured homes.
The trial court issued a protective order against the taking
of the deposition. But the court found that the decisions in
this case applying the overlay district ordinance are quasi-judicial
in nature. Therefore the only
testimonial privilege that can be asserted is the one that prevents
the party from inquiring about the mayor’s intentions and motives. The trial court had issued the protective order on the basis of
absolute legislative immunity that was too broad given the nature
of the decision. [4]
Rezoning
[a] Wenatchee Sportsmen Association v. Chelan County[372] Both Washington and Oregon have comprehensive
state-mandated land use control systems. In this case the Washington Supreme Court interpreted
and applied various of those provisions with regard to a rural subdivision
development. Under the Growth
Management Act, counties are required to adopt comprehensive plans
that include provisions for the designation of interim urban growth
areas (IUGAs). A developer
sought approval for a residential subdivision outside of the county’s
IUGA. The land was zoned recreational residential,
allowing densities of up to 1 unit/acre.
The submitted plat called for 205 clustered lots with an average
density of 1 unit per 1.36 acres.
Since 350 acres were to be dedicated to open space the average
density was 1 unit per 3.12 acres.
The county issued a mitigation of non-significance (MDNS) as
to the project after the developer modified its plans in response
to a concern about a migratory elk herd. Once a MDNS is issued the developer does not
need to prepare a EIS. The
county voted to approve the subdivision and a conservation organization
sought judicial review under the GMA. Under the Land Use Petition Act (LUPA)
governing judicial review of land use decisions, the scope of judicial
review is based on the substantial evidence test or a clearly erroneous
standard regarding the application of the law to the facts of each
case.[373] The review of the MDNS is under the clearly
erroneous standard. The court
should only overturn a MDNS if the county failed to consider the relevant
environmental factors. The
court was reviewing two separate county decisions.
The first was the rezone of the land to recreational residential
and the second was the approval of the plat and site plan that followed
the rezoning decision by 2 years.
The court found that plaintiffs could not challenge the rezoning
decision because under LUPA, such challenges must be made within 21
days after the decision is made.[374] Plaintiff’s argument that the rezoning decision
allowing for residential development outside of the IUGA should have
been raised by direct appeal of the original rezoning decision. Having failed to meet the time requirements
for direct appeal, the plaintiff may not collaterally challenge that
decision at the site plan or plat approval stage.
Since the record showed that the development complied with
all of the requirements for density and that the MDNS determination
was not clearly erroneous, the county’s decision would be affirmed.[375]
[b]
Falcke v. Douglas County[376]
A number of states now require consistency between a comprehensive
plan and the zoning ordinance. In
those states a zoning amendment now requires two separate ordinances,
one changing the master plan and the second changing the zoning ordinance. In this case, plaintiff filed 2 such amendments,
the first changing a master plan designation from agricultural to
a combination of public facilities and commercial and the second changing
the zoning ordinance to comply with the amended comprehensive plan.
The county planning commission voted in favor
of both amendments, although the zoning ordinance amendment was adopted
with a slimmer majority than the plan amendment.
The Board of County Commissioners voted 3-2 in favor of the
plan amendment, but that was insufficient under the zoning ordinance
that required a supermajority vote in favor.
No vote was taken on the zoning amendment. The state enabling statute dealing
with comprehensive plans requires that they be adopted or amended
by the planning commission with a supermajority vote.
There is nothing in the state statute requiring the legislative
body to require a supermajority vote.
But there is a requirement that the legislative body approve
the plan or its amendment when submitted by the planning commission.
The issue is whether the county ordinance requiring a supermajority
vote by the Board of County Commissioners conflicted with the enabling
statute. One could argue that there is no conflict,
since the county is merely adding a supplementary requirement. But the court found that the enabling act clearly
set forth when the legislature wanted a supermajority voting requirement.
By not requiring such a vote at the legislative level, the
state was making a determination that no supermajority vote should
be imposed. Since the Board
of County Commissioners voted affirmatively on the plan amendment,
it was a valid vote and the plan was changed effective with that vote.
[d] Boris v. Garbo Lobster Co., Inc.[377] Garbo purchased a 2.8 tract of land
located in the City of Groton’s waterfront zoning district. In 1996 it proposed a change to the zoning
regulations to permit it to operate a lobster distribution facility
on the site. The planning
and zoning commission held a public hearing and approved the changes. Judicial review of commission decisions are
quite limited to determine if the commission acted arbitrarily, illegally
or capriciously. Under Connecticut
law, before waterfront zoning ordinances may be changed, comments
from the state Commissioner of Environmental Protection, must be sought
and be made part of the record, if submitted.
In this case, the attorney for Garbo read portions of a letter
from the state, but did not place the entire letter into the record.
The plaintiffs argued that the statute imposed a mandatory
duty to have the commissioner’s full comments in the record, in part
because the statute uses the word “shall.”[378] While the court agreed that the use of the
term “shall” oftentimes makes the statute mandatory and not directory,
it nonetheless found this statute only directory.
The court reasoned that since there were no set penalties for
non-compliance and no statement that failure to comply would invalidate
the action, it would not interpret the provision to mandate inclusion
of the full comment letter. Plaintiffs also argued that Garbo and
the commission engaged in ex parte contacts that were prejudicial. The nature of the ex parte contact was a telephone
call from a city planner to an official at Garbo informing him that
there would only be a limited number of commissioners present at the
next meeting. The commission
had earlier tabled the Garbo request so that it was an active matter
before the commission when the telephone call was made.
While the call was improper and led Garbo writing a letter
seeking to further table the matter until the next commission meeting,
the ex parte communication merely raised a presumption of prejudice.
The burden of showing lack of prejudice was then placed on
the city and the applicant. Evidence
showed that the phone call was on a procedural matter and was not
initiated by Garbo. The delay did not prejudice the rights of the
plaintiffs and thus was not a basis for invalidating the decision.
[e] Buck Lake Alliance, Inc. v. Board of County Commissioners[379] Florida is a mandatory consistency
state requiring that the zoning be consistent with the plan but that
individual development orders also be consistent with the plan. A developer sought site and development plan review for a proposed
development. The application
was approved by the county’s planning staff and forwarded to the County
Planning Commission. Plaintiff
requested formal hearings on the proposal.
The Planning Commission denied the application because the
traffic evaluation was incomplete and no management plan for wood
storks was included. Both
the plaintiff and the developer sought review of the Planning Commission
decision from the Board of County Commissioners.
The Board ordered the Commission to issue the order upon submission
and approval of a satisfactory wood stork management program.
Plaintiff then sought judicial review of the Board’s decision. Plaintiff argued that the decision
violated the statutory mandate that a development order be consistent
with the comprehensive plan. The
court reviewed this consistency requirement as requiring the court
to determine the objectives, policies, land uses and densities in
the comprehensive plan and weigh those against the individual order.
Consistency is determined not by review of the zoning ordinances
adopted to implement the plan but by review of the order and its place
within the plan’s objectives. Because
the trial court reviewed the consistency of the county’s zoning ordinance
and not the order, the appellate court remanded while noting that
the record seemed to be incomplete in dealing with the consistency
issue as defined by the court.
[e] Willoughby v. Wolfson Group, Inc.[380] This was the third in a series of cases
dealing with a developer’s plan to construct a Wal-Mart on a 30-acre
tract. The tract was originally
zoned for office campus where retailing was not a permitted use. At the developer’s request the town rezoned
the land to a town center district where retailing is allowed. Since New Jersey is a mandatory consistency
state, the town made a specific finding that the rezoning was consistent
with the master plan. New
Jersey law also allowed a rezoning ordinance that is inconsistent
with the master plan to be adopted if a majority of the full authorized
membership of the governing body votes for the rezoning.
The earlier decision had found that the rezoning was inconsistent
with the master plan, notwithstanding the town’s findings to the contrary.[381] The case was remanded to the trial court to
see if the town complied with the requirements for the adoption of
an inconsistent zoning amendment.
The key issue was whether the statute required the town to
first make an inconsistency finding before adopting the zoning amendment.
The court found that to carry out the objectives of the consistency
requirement, a town must first state that the amendment is inconsistent
and then give its reasons for adopting an inconsistent amendment. Otherwise the consistency requirement would
be meaningless in light of the exception allowing inconsistent amendments
by majority vote. The court
further noted that a planning board’s finding of consistency would
not necessarily bind a legislative body’s determination of that issue. To hold otherwise would be to give the power to adopt inconsistent
zoning amendments to the planning board and not to the legislative
body.
[f] Town of Florence v. Sea Lands, Ltd.[382] In 1977, the town rezoned a tract of
land from SFR to MFR. In 1986,
plaintiff purchased a 1.2 acre tract within the rezoned area. In 1996, after receiving a recommendation from
its planning and zoning commission, the town voted to rezone a portion
of the MFR district back to SFR, including the parcel owned by the
plaintiff. Plaintiff had not received any notice of the
second rezoning petition and objected on those grounds. A public hearing was held where supporters
of the rezoning presented evidence of the need to lessen density because
of traffic and other service problems.
Sea Land presented evidence of no change in circumstances from
the 1977 rezoning, along with a great community need for MFR development. The town unanimously voted to rezone the tract
from MFR to SFR. Under Mississippi law, a rezoning ordinance,
be it comprehensive or limited to a single parcel, is treated as a
legislative act. The scope
of judicial review is deferential with the Euclidean standard of "fairly
debatable" governing. Nonetheless,
the court found that judicial review of rezoning decisions are governed
by a different standard. The
city must show that there was a mistake in the original zoning or
that the character of the neighborhood has changed. This change/mistake rule, places the burden of proof on the party
seeking the change and the standard of proof is clear and convincing
evidence. In most cases the rezoning amendment follows
the filing of a petition or application by an individual owner. In this case the town initiated the rezoning
process, placing upon the town that burden of proof. The town argued that there were several
procedural mistakes made when the 1977 zoning ordinance was enacted. The court, however, concluded that the mistake
must be substantive in nature, not procedural, in order to justify
the rezoning. The town also
argued that the character of the neighborhood had changed, as evidenced
by the testimony of residents of the area in support of the amendment. The court, in my opinion, clearly gave a hard look to the conflicting
evidence in support of both the town's and the owner's position regarding
the alleged changes. It, in
effect, reweighed the evidence and found the town's decision arbitrary
and capricious because the court did not believe that the alleged
changes in the neighborhood were real or significant.
Finally, the court accepted Sea Land's
argument that the town should be equitably estopped from rezoning
because it relied to its detriment on the existing zoning. While this type of broad estoppel claim would
be rejected in most jurisdictions, since there cannot be a vested
right to develop under an existing zoning ordinance, Mississippi has
recognized the estoppel claim in similar circumstances.[383] In fact, there was no evidence of substantial
expenditures, other than the purchase of the land in 1986 that would
support the estoppel claim. If
the court's position on estoppel is correct, it would appear that
no town could change its zoning ordinance and affect a parcel that
had been purchased with some hope of development within a rather lengthy
period of time. That result cannot stand, although the court
did temper its view by suggesting that "One who plans to use
his property in accordance with existing zoning regulations is entitled
to assume that the regulations will not be altered to his detriment
unless the change bears a substantial relation to the public health,
safety, morals, comfort, or general welfare."[384] If this last caveat is observed than the equitable
estoppel claim should never have been discussed, since the court earlier
had found that the rezoning violated the change/mistake rule and was
therefore invalid for that reason.
[g] Schrank v. Pennington County Board of Commissioners[385] In earlier litigation, the court upheld
the granting of a CUP to a well drilling business.[386] While that case was pending, the county amended
the zoning ordinance specifically listing the well drilling business
with accessory buildings to the list of conditional uses authorized
by the ordinance. The business
then received a CUP under the new ordinance.
The same neighbor who challenged the first CUP, brought this
action claiming that the ordinance constituted spot zoning.
The scope of judicial review of zoning ordinance amendments
is quite deferential. There
is a strong presumption of validity and the court applies the Euclidean
fairly debatable standard. The plaintiff was unable to sustain its burden
to show that the ordinance is unreasonable or arbitrary. Other listed CUPs also have the ability to
have substantial negative externalities.
The fact that this particular business was added did not change
the nature of the CUP provisions in the ordinance.
The court also rejected the claim that this was spot zoning. The amendment does not apply only to this lot
but to all parcels located within the zoning district that contained
this amended list of CUPs.
[h] McCollum v. City of Berea[387] Plaintiffs own a lot in a residentially
zoned district that did not allow manufactured homes. They wanted to demolish their dilapidated residence
and replace it with a double-wide manufactured home. A city official denied the permit under his
interpretation that the manufactured home fell within the definition
of a mobile home. That interpretation
was affirmed by the BZA. The
court distilled the plaintiffs’ claim down to a substantive due process
challenge to the reasonableness of the zoning ordinance in its treatment
of mobile and/or manufactured homes.
The city clearly had the power to enact a zoning ordinance
pursuant to a state enabling statute. The decision to limit mobile homes to certain
types of zoning districts has as a purpose the preservation of property
values. That is a valid public
objective that a court should not overturn merely because the plaintiffs
argue that the result is to increase the cost of housing or exclude
low or moderate income persons from a particular neighborhood. Applying a fairly debatable scope of judicial review the court
had no difficulty upholding the validity of the ordinance.[388]
[i] Harmon City, Inc. v. Draper City[389] Plaintiff purchased a 10.277 acre tract
of land intending to build a strip commercial shopping center anchored
by a grocery store. At the
time of purchase the city had zoned the land for residential/agricultural
uses, although the master plan designated the area for mixed use. The project obviously could not be built under
the existing zoning designation so Harmon sought to rezone the tract
to a neighborhood commercial district.
The Planning Commission recommended to the City Council that
the area be rezoned, but the council voted not to rezone the parcel
after holding several public hearings at which time local residents
voiced their opposition to the rezoning. In Utah the scope of judicial review
of a rezoning decision is only to determine if the decision is arbitrary,
capricious or illegal. There
was no issue of legality so the court applied the arbitrary or capricious
standard. The court noted
that judicial review of zoning decisions may be different if the decision
is legislative or adjudicatory in nature.
Here the court found that the rezoning ordinance was legislative
in nature and therefore applied the traditional soft glance or deferential
approach to judicial review.[390] Only if there is no reasonable basis for the
decision should it be overturned.
In these types of line drawing contests, the fact that the
owner can make more money from a more intense use district does not
give the owner the right to demand a zoning change.
The court rejected the use of the substantial evidence standard
for legislative decisions even though a recent Utah Supreme Court
decision seemed to apply that standard to a legislative zoning decision.[391] The court attempted to distinguish that case
on the basis that it involved a PUD decision and not a rezoning decision,
even though the PUD decision ended up requiring a zoning change. The court also defended the decision not to
rezone against the claim that it was based solely on “public clamor”
and not reasoned thought. There
is a “public clamor” doctrine in Utah that applies to adjudicatory
decisions such as CUPs, but again the court refused to apply that
doctrine to legislative decision-making. Legislators may rely on public interest and
clamor while board and commission members making adjudicatory decisions
may not.
[j] Northern Trust Bank/Lake Forest, N.A. v. County of Lake[392] Plaintiff owned a 266-acre tract of
land in an unincorporated area of the county that was adjacent to
the Village of Mundelein. The area was zoned for rural residential use. On two sides of the parcel, development had
occurred to some extent. Plaintiff
sought to have the parcel rezoned to a suburban district that allows
a mixture of residential, industrial or commercial uses.
The county denied the petition to rezone. Plaintiff filed suit and submitted a 662-unit mixed residential
development. The trial court
allowed the Village to intervene.
The trial court found the proposed use unreasonable and refused
to set aside the ordinance. Under
Illinois law, courts have taken a reasonably hard look at local governmental
decisions that restrict the use of land.[393] The court first had to deal with plaintiff’s
claim that the Village had no standing to intervene. Under Illinois law, a municipality can challenge
a zoning ordinance affecting land outside its boundaries where it
has a real interest in the subject matter.
The Village proved that it had such an interest because its
comprehensive plan and ordinance for the land abutting the proposed
development called for residential densities 50% than those sought
by the plaintiff. Demands for village services, including police
, fire and school provided sufficient interest for the village to
intervene. While Illinois generally takes a hard
look at local zoning decisions, there is still a presumption of validity.
The court applied the 8-part La Salle National
Bank test to determine whether the existing zoning was
reasonable. Even though an
adjacent tract had been rezoned to the suburban district sought by
the plaintiffs, the court upheld the trial court findings that the
proposed development was inconsistent with the surrounding area.
One of the 8 factors required the court to determine whether
the ordinance allowed the owner to develop the parcel to its highest
and best use. While there was some conflicting evidence on
that point, the court found that it was sufficient to support the
judgment that the decision not to rezone was reasonable.
Since the existing zoning was reasonable, the court did not
discuss the reasonableness of the proposed use, since that issue only
gets resolved where the court makes the initial finding that the existing
zoning is unreasonable.
[k] Harvey v. Town of Marion[394] The Town held a public hearing and
voted to rezone land within a 2 mile long corridor along a major highway
to commercial. Several property
owners within the area objected.
Mississippi, like Maryland, follows the change/mistake rule
when it comes to non-comprehensive rezoning amendments.[395] Thus the supporter of the rezoning must prove
by clear and convincing evidence that there was either a mistake in
the original zoning or that the character of the neighborhood has
changed.[396] The basis for this shifting of the burden of
proof is the presumption that the public interest was best served
by the original ordinance that is intended to be permanent until a
new comprehensive ordinance is enacted The town argued that there
was a mistake in the original zoning because it zoned only the existing
commercial property for commercial uses, thus leaving nor room for
growth. But a mistake must
not be a mistake of judgment but a clerical or administrative mistake.
The court, however, affirmed the town’s decision because it
found that the evidence showing a change was at least fairly debatable. The major cause of the change had been the piecemeal expansion of
the commercial zone over the years that added an additional 9 commercial
properties, ranging from a bank to an auto repair shop to two convenience
stores. The plaintiffs argued
that the town went overboard in its expansion of the commercial zone,
but those types of line-drawing contests are not subject to effective
judicial review under the fairly debatable rule.
[l] Perry-Worth Concerned Citizens v. Board of Commissioners
of Boone County[397]
An owner filed an application for the
county to rezone about 800 acres. The purpose was to allow the construction
of a mixed use development. One
member of the Board of Commissioners filed a conflict of interest
disclosure statement that revealed that his wife owned a 1/5th
interest in land near the 800 acre tract. The
board voted 2-1 in favor of the rezoning with the deciding vote being
case by the commissioner who made the disclosure.
A neighborhood group sought judicial review.
Under North Carolina law, local governmental officials must
not participate in zoning matters where they have “a direct on indirect
financial interest.”[398] The sole issue is does the statute apply to
the situation where a spouse owns adjacent property. The court narrowly interpreted the statute to deal only with the
“zoning matters” being actually decided.
Since the spouse owned adjacent land, there was no need to
disqualify the commissioner. The
plaintiffs argued that a liberal interpretation of the statute was
required to maintain the integrity of the zoning process and not undermine
public confidence. The court found that while a liberal interpretation
may be required in adjudicatory or quasi-adjudicatory proceedings,
a plain meaning approach was more suitable for legislative actions,
such as this rezoning petition. The
court refused to apply the more liberal appearance of impropriety
standard to legislative actions.
[m] Home Depot U.S.A., Inc. v. City of Portland[399] Opposition to big box retailers appears
to be continuing. In 1999,
the City amended its zoning ordinance to make retail facilities in
excess of 60,000 square feet in size no long a permitted use in “industrial
districts.” In addition, such facilities were made a conditional,
rather than a permitted use, in “employment districts.” The purpose of the amendment was to protect
industrial areas providing a high percentage of family-wage jobs from
encroachment of big box retailers.
Plaintiff argued the zoning amendment was inconsistent with
statewide planning Goal 9 relating to economic development. Goal 9 required local plans to consider an adequate supply of sites
for a variety of commercial and industrial uses. Plaintiff argued that the city did not consider
the impacts of the zoning amendment on the availability of commercial
sites for big box retailers. The
court rejected plaintiff’s hidden premise that Goal 9 required local
governments to make land available for every specific kind of economically
productive use that anyone wished to conduct.
Unlike several decisions overturning downzoning amendments
that actually drastically reduced the amount of land where industrial
and commercial uses were allowed,[400] the decision here did not deplete the supply
of available lands. The city
made adequate findings regarding its obligation to have a zoning ordinance
consistent with Goal 9. Courts
should not be the forum to resolve policy and planning disagreements. Thus the plaintiff’s action should be dismissed.
[n] Briarwood, Inc. v. City of Clarksdale[401] In 1971 plaintiff purchased a 90-acre
tract located in an unincorporated area of the county. The land was rezoned from agricultural to MFR
by the county. Over the next
20 years major portions of the tract were developed as both SFR and
MFR. Many of the apartment unit involved subsidized
housing for low income persons. In
1992 the tract was annexed into the city and retained its MFR zoning
classification. In April 1998,
plaintiff informed the city of its intent to build another 23 units
of subsidized low income housing on 2.3 acres.
The city adopted a temporary moratorium on all MFR, except
for duplexes. During the moratorium
period, residents of the area petitioned to have remaining 18.72 acres
of the 90-acre tract rezoned to SFR and duplex use.
After lengthy public hearings, the city rezoned the land, citing
among other factors the high concentration of subsidized housing in
the area. The city also noted the changes in the area
from the time the area was originally zoned MFR. As noted earlier, Mississippi is a
follower of the change/mistake rule for rezonings. Unlike the Harvey case, this court did not shift the
burden to the city to prove by substantial evidence that either a
change or mistake had occurred. Instead
it place on the plaintiff the burden to show that the decision was
arbitrary, capricious, discriminatory or not supported by substantial
evidence. In fact the court applied the fairly debatable
standard to the city’s findings relating to whether a change or mistake
had occurred. The principal
change that the court found supported the rezoning decision was the
change from rural farmland to residential development.
Most of the court’s analysis was spent on traffic and other
public safety issues, unrelated to the change/mistake doctrine. It is hard to reconcile the approach taken
in this case with the approach taken in Harvey. Plaintiff also asserted a regulatory
takings claim through the downzoning.
The court did not rely on Lucas or Penn Central to apply a takings
test. Instead, it suggested
that a taking could occur where the government prevents the best use
of the land or extinguishes a fundamental attribute of ownership. The court found neither had occurred with
the downzoning. The land was
still economically valuable for SFR or duplex development. While the number of units that could be built were lessened, the
loss did not threaten or impair the economic viability of the plaintiff’s
property. The city heard
evidence from the plaintiff about the substantial diminution in property
values that would follow the downzoning, but discounted the plaintiff’s
expert testimony. It instead relied on other experts that the
land would retain a substantial amount of its value after the downzoning.
[o] Rossano v. Townsend[402] In 1996, the voters of the City of Alvin approved a provision of
their home rule charter establishing procedures for the adoption of
a zoning ordinance. Shortly
thereafter the local newspaper published a proposed zoning ordinance
and an election was held. The ordinance was defeated. The city council enacted a resolution later
that year declaring their intent to place another zoning ordinance
on the ballot. No public hearings
were held and no notice by publication given except for a notice of
the general election issued by the city that identified the ordinance
as being on the ballot. The ordinance was passed. This second ordinance differed in some respects
from the first ordinance. The
plaintiffs sought to invalidate the election results based on procedural
shortcomings preceding the second election. The contested charter provision only
allowed a zoning ordinance to be voted on after allowing a six-month
period after publication of the proposed ordinance along with any
zoning maps. The charter provision also mentioned a need
for a public hearing. The
court found that the second ordinance could not “piggy-back” on the
publication of the first ordinance because there were differences
between the two ordinances. The requirement of a six-month waiting period
encompassed the need for public hearings and comments. The city needed to have published the new ordinance
and then waited 6 months to hold an election. It also needed to have a public hearing or
hearings during that time period in order to comply with the charter
provision. Therefore the election could not stand. [5]
Nonconforming Uses
[a] Money v. Zoning Hearing Board of Haverford Township[403]
Plaintiff sought a building permit to replace a deteriorating
garage/chicken coop that was a NCU with a smaller nonconforming garage.
The garage was to be located in a residential district.
The proposed garage was larger than that allowed by the zoning
ordinance. The township denied the permit application.
Under Pennsylvania law a NCU gives the owner a vested right
that cannot be destroyed or abrogated unless it is a nuisance, it
is abandoned or is extinguished through the eminent domain power.[404] The board relied on other precedents that said
that one nonconforming structure may not be replaced by another.[405] This court interpreted Tantlinger as only prohibiting
the replacement of a different kind of nonconforming structure so
that it would not be applicable in this case since the owner was replacing
a garage with another garage. The
remaining issue was whether there was an abandonment of the NCU. The burden of proof on abandonment is on the
party asserting abandonment, in this case the township. The township must prove that the landowner
intended to abandon the NCU and that the owner actually abandoned
the NCU. The mere non-use of the NCU does not constitute
proof of abandonment. The
township ordinance provided the period of non-use that would trigger
abandonment, namely 6 months, but the township did not offer any proof
that the owner had not used the garage for that period of time. The replacement of a dilapidated NCU with another
NCU is authorized where the new use is the same as the old. The township may not interfere with the owner’s
vested right to maintain the NCU, even if it means replacing the structure.
[b] Kirkpatrick v. Village Council for the Village of Pinehurst[406] Plaintiff purchased a 55 acre tract
that contained a campground and was zoned for rural residential uses. The campground, however, was a NCU. Under the Village zoning ordinance a non-conforming
use of land shall not be enlarged or increased or its use extended
to occupy a greater area of land than that occupied when the use became
non-conforming. At the time
of purchase the campground was physically located on about 13 acres. The owner sought to expand the campground
use to include a RV park and increase the number of campsites. During this time the Village adopted a moratorium
ordinance affecting all commercial development, pending the revision
of the comprehensive plan. Plaintiff
requested that his parcel be rezoned so that a campground would be
a permitted use. Plaintiff
continued to put in infrastructure to expand the campground.
The Village rezoned the property into a district that allowed
RV parks with a special use permit.
Plaintiff sought a SUP for its expanded campground and RV park. After issuing various building permits allowing construction of
improvements for the expansion project, the Village denied the SUP. The basis for the denial was the expansion
of the park well beyond the intensity of the use that created the
NCU. Plaintiff argued initially that the
use was not being enlarged since it was all taking place within the
originally 55 acres that was owned by the original campground proprietor. The Village ordinance on NCUs clearly reflected
a policy to eliminate such uses and not to allow them to grow. Therefore a definition of the term enlarge
that allowed significant growth would be contrary to the terms of
the ordinance. Expansion
of the NCU from a 13 acre situs to a much larger situs within the
55 acre parcel is prohibited by the ordinance.
The court also rejected the plaintiff's assertion that he was
merely engaging in renovation of the campground, not an expansion.
Sometimes an intensification of a use will not constitute an
enlargement. But, again the language of the Village ordinance
clearly covered the type of activities undertaken by the plaintiff,
whether they were classified as renovations or expansion. Finally, the court found that plaintiff
did not have a vested right to expand or renovate the campgrounds
based on the permits issued to him by the Village. In North Carolina, in order to assert a common law vested right
claim, one must show substantial expenditures in good faith reliance
on valid governmental approval resulting in the party's detriment.
The plaintiff could not have had a good faith
belief that he was entitled to expand the NCU beyond the level of
use extant at the time the NCU was grandfathered.
Prior to the rezoning, plaintiff could not expect that the
Village would give him permission to expand his NCU, in clear violation
of the terms of the zoning ordinance. [6]
Historic Preservation
[a] City of Jacksonville v. Huffman[407] Several neighbors challenged the city’s
granting of a permit to construct a medical office building in an
historic district. They asserted
that their procedural due process rights were violated by the failure
to provide them notice of several hearings before a number of different
city agencies. The court found that the neighbors were afforded
appropriate and timely notice before the Land Use and Zoning Committee
held its hearing on the permit application.
As to the lack of notice before the earlier Historic Preservation
Committee hearing, that shortcoming was overcome by the notice to
the Land Use Committee hearing where the neighbors were able to make
all of their arguments. Since
the Land Use Committee heard the matter in a de novo review setting,
the neighbors were not damaged by the lack of notice to the earlier
meeting. The court also found
that the city permit was not illegally issued since the parties waived
their right to contest the lack of notice. There was no evidence in the record showing
that the Land Use Committee ignored the presentation of the neighbors. The discretionary decision to allow the building
was supported by substantial evidence and was proper.
[b] Handicraft Block Limited Partnership v. City of Minneapolis[408] Plaintiff owned two building in the
city’s downtown area. Neither
of the building are listed on a map showing historic buildings. Nor are the buildings listed on the Heritage
Preservation Commission’s list of 800 historic structures or sites. The plaintiff entered into an option contract
to sell the two buildings in 1998.
Shortly thereafter, the city notified the plaintiff that it
intended to seek a heritage designation for both buildings. Public hearings were held and the commission recommended designating
the exterior of the building for protection. The city planning commission also agreed with
the Heritage Preservation Commission’s recommendation. The city council approved the designations
after additional public hearings.
After designation the Heritage Preservation Commission most
approve remodeling, repairing, moving or destroying any building if
it would affect the exterior. Plaintiffs
argued that without the designation the value of the tract would be
between $ 3.7 and $ 5.0 million but that after the designation, the
value was between $ 0.6 million and $ 1.0 million.
Plaintiffs sought judicial review by a writ of ceriorari of
the designation decision. Judicial review by certiorari is only
available to review judicial or quasi-judicial proceedings. The court must determine if the designation
decision is judicial or legislative in order to determine if the reviewing
court had jurisdiction to hear the appeal.
Quasi-judicial conduct is marked by an investigation into a
disputed claim, application of the discovered facts to a prescribed
standard and a decision binding on the parties.
In applying those 3 factors, the court determined that the
designation proceedings are more typical of judicial proceedings than
legislative proceedings because they involve investigating and determining
facts that serve as the basis for the designation decision.
The court analogized the designation decision to a conditional
use permit decision that is treated as a quasi-judicial action.
In this case, the focus of the hearings was on the designation
of two buildings. The action
would clearly be binding on plaintiff and no one else.
In addition, the commission was applying a prescribed standard
set forth in the ordinance governing the designation of buildings. All of these factors lead the court to conclude
that review by certiorari was appropriate.
Since the lower court had dismissed the case the Supreme Court
remanded it back to the court for review on the merits.
[c] Fabiano v. City of Boston[409] Plaintiffs own some row houses located
in an historic district designed to protect historically significant
row houses. Prior to 1986,
the parcels were zoned for commercial uses.
The area was then rezoned to an historic district where only
residential uses were allowed. A
comprehensive rezoning of the area was undertaken that led to a rezoning
placing the houses in a new more restrictive row house district.
Some other properties in the neighborhood that were allegedly
similar were rezoned to allow a limited class of commercial uses on
the ground floor of the row houses although the upper floors were
restricted to residential uses only. Plaintiffs asserted that the differential
treatment in the rezoning ordinance amounted to invalid spot zoning.
They argued that their row houses were more suitable for the
type of commercial development allowed in the other areas of the historic
district, including the fact that their parcels abut a major arterial
that is traversed by trolley cars. The City defended its decision largely on the
testimony of its planning staff that examined the plaintiffs’ row
houses are largely architecturally intact and therefore of greater
historic value. In addition,
plaintiff’s houses have almost exclusively been used for residential
uses while the other properties being a more liberal use district
have been used for non-residential uses.
The goal of historic preservation is clearly within the city’s
power to achieve. As a legislative
act, the comprehensive rezoning is entitled to a strong presumption
of validity and application of the “fairly debatable” scope of judicial
review. The burden of proof
is clearly on the party attacking the validity of the ordinance. In this case the plaintiffs need not meet
that heavy burden.
[d] Galveston Historical Foundation v. Zoning Board of Adjustment[410] The city created an historic district
overlay zone that contained sign restrictions. A sign company was granted a permit to erect
two freestanding signs. The
Foundation appealed that decision to the ZBA.
The Foundation was the lessee of a nearby building. The ZBA dismissed the challenge because it found that the Foundation
lacked standing to challenge the issuance of the permit. Judicial review of a ZBA decision in Texas
uses the abuse of discretion standard.
Where the issue is standing, however, that requires a court
to review the challenge as any challenge based on subject matter jurisdiction
is reviewed. A party who is
aggrieved has standing to challenge a permit decision.[411] The ZBA had been informed by its attorney that
had the Foundation been the lessee of an adjacent building it would
be an aggrieved party but since the leased premises were further away,
it would be up to the ZBA to determine if they were truly aggrieved. There has been little litigation in Texas concerning who is an
aggrieved party in the ZBA context.[412] The court found that the Foundation would have
to show that the injury or damage suffered is different than that
suffered by the public at large.
But the level of injury or damage is less than that required
for showing standing to sue in court.
Relying on out-of-state jurisprudence, the court found that
persons residing or owning property within a zoned area have standing
to challenge zoning decisions affecting that area.
Thus owners of lands within the overlay district would have
standing to sue. The Foundation’s
allegations that it operated a business within the overlay district
was sufficient to attain the aggrieved status requirement.
The Foundation did not have to show that there was a direct
link between the sign permit and its activities on the leased premises.
It was also not required to show that legal harm had already
occurred. [7]
Accessory Uses
[a] Kam Hampton I Realty Corp. v. Board of Zoning Appeals[413] A corporation owned by Martha Stewart
purchased a 2.5 acre tract from a museum that was improved with a
house, garage and an accessory structure described as a studio. The corporation received a certificate of occupancy
that described the layout of the studio. Several building permits were received to renovate the studio.
The corporation also sought permits to construct several other
accessory buildings including a library, home office and gym.
In a separate case, the corporation got a variance and a freshwater
wetlands permit to destroy and then rebuild some wetlands located
on the parcel.[414] Some neighbors challenged the original certificate
of occupancy claiming that it created a second residence on the single
parcel in violation of the village’s zoning ordinance. The BZA upheld
the issuance of the certificate. Judicial review of BZA decisions is
limited to determining whether the decision has a rational basis,
is not arbitrary or capricious and is supported by substantial evidence. The designation of the studio and the other
buildings as accessory uses to the main residence is entitled to substantial
deference. There was no evidence
that the corporation intended to convert the studio into a separate
residence. The BZA had a history of allowing new structures
within a single parcel that provide such amenities as office or workout
space. Thus the decision to
issue the certificate of occupancy would be upheld.
[b] National Cathedral Neighborhood Association v. District
of Columbia Board of Zoning Adjustment[415] A private school sought a special exception
to permit construction of a new athletic facility. The BZA granted the permit finding that the
proposed new use was either an extension of the principal use or an
accessory use, both authorized by the zoning ordinance.
A neighborhood organization challenged the permit at both the
administrative and judicial levels.
Under the District of Columbia laws, the BZA has a limited
role in granting or denying special exceptions.
The BZA’s findings that the proposed use was either an extension
or accessory use to the school was supported by the evidence. While the size of the new facility was large,
the court found that athletic facilities and the buildings supporting
such facilities are clearly an adjunct to the educational mission
of the school. In fact, much
of the facility was to be located below ground so that the expansion
would not dwarf the surface footprint of the existing school.
In defining what is an accessory use the court looked at the
degree of impact on the surrounding neighborhood.
Because the structure was largely underground and designed
to minimize noise and visual exposure, the negative externalities
were not severe. While the facility would have some impact
of neighborhood traffic, most of the traffic impacts were caused by
the existence of the school, no the athletic facility.
[c] Dupont Circle Citizens Association v. District of Columbia
Board of Zoning Adjustment[416] An owner of an old mansion located
in a moderate density residential district converted the building
into a bed and breakfast (B&B).
The owners were originally given a permit to operate a B&B
as a home occupation. Several years later they were told they would
have to seek a special exception from the BZA. The BZA granted a waiver from some of the requirements for a B&B
and issued the special exception.
The owner wanted to hold social events, such as weddings at
the B&B. The BZA imposed
several conditions to meet the concerns of various neighbors and granted
the special exception. The
basis for allowing the social events was that they were accessory
uses to the primary B&B use. The court defined an accessory use
as one that is customarily incidental and subordinate to the principal
use. A B&B use, however,
is itself an accessory use, with the principal use deemed to be the
residential use. The neighbors argued that you cannot have
an accessory use to an accessory use, so that the social events business
was in reality a second home occupation that is impermissible under
the zoning ordinance. The
court applied a very deferential scope of judicial review to the BZA’s
interpretation of the zoning ordinance.
Only if that interpretation was plainly erroneous or inconsistent
with the ordinance would it be overturned.
The court found that the term accessory use as employed in
the zoning ordinance was broader than that urged by the neighbors.
The principal use referred to in the ordinance could be the
accessory use. The BZA’s concern about the possible externalities
of both the B&B and the social gatherings reflected a concern
about the nature of accessory uses consistent with its interpretation
of the ordinance. The interpretation
was therefore reasonable and would be upheld.
[d] State v. Alawy[417] In this criminal proceeding, defendant
was convicted of violating the city’s zoning ordinance that prohibited
residential use of property in land zoned for industrial purposes.
The ordinance exempted from the prohibition dwelling units
used in conjunction with a primary use intended for occupancy by a
proprietor, caretaker or night watchman. Defendant asserted that the ordinance was unconstitutionally
vague because the term residential uses would not give a person of
average intelligence reasonable notice of what activities are prohibited.
Defendant, however, did not have standing to raise the void
for vagueness claim, since it was clear that he was using the warehouse
in question as his residence. Evidence showed that a portion of the building was set up as a residence
with a kitchen, living room and bedroom. The court defined residential as the occupation of space as one’s
dwelling or abode. The exceptions
contained in the ordinance do not make it vague given the court’s
emphasis on permanence of occupancy. [1] See e.g., Bruce
Kramer, Current Decisions on State and Federal Laws in Planning
and Zoning, 1999 Inst. on Planning, Zoning & Eminent Domain
1-1 (hereinafter Kramer I); Bruce Kramer, Current Decisions on State
and Federal Law in Planning and Zoning, 1998 Inst. on Planning,
Zoning & Eminent Domain 1-1 (hereinafter Kramer II). [2] 120 S.Ct. 1073
(2000). [3] See e.g., Riley
v. Town of Bethlehem, 44 F.Supp.2d 451 (N.D.N.Y. 1999), discussed
at Kramer I, note 1 supra
at § 1.02[1][c] and
Jackson v. City of Auburn, 41 F.Supp.2d 1300 (M.D.Ala. 1999) discussed
at Kramer I, note 1 supra at § 1.02[1][d]. [4] 120 S.Ct. at 1075
quoting from Sioux City Bridge Co. v. Dakota County, 260 U.S. 441,
445 (1923). [5] The Seventh Circuit
opinion is reported at 160 F.3d 386 (7th Cir. 1999). In an opinion by Judge Posner, the court, at
great length, talks about the personal animus of Village officials. [6] See Esmail v.
Macrane, 53 F.3d 176, 180 (7th Cir. 1995) a prosecutorial
discretion decision, that served as the basis for Judge Posner’s
view in this case. [7] It is interesting
to note that Olech has been cited over 25 times in federal court decisions since
being handed down in February, most dealing with some type of local
governmental decision affecting a single individual. See e.g., Hilton v. City of Wheeling, 209 F.3d 1005 (7th
Cir. 2000)(no equal protection claim for alleged differential treatment
by police force and social workers). [8] 199 F.3d 363 (7th
Cir. 2000). [9] See e.g.,
Gamble v. Eau Claire County, 5 F.3d 285 (7th Cir. 1993),
cert. denied,
510 U.S. 1129, reh'g denied, 511 U.S. 1047 (1994); Himmelstein v. City of
Fort Wayne, 898 F.2d 573 (7th Cir. 1990). [10] The court treated
Hamilton
Bank as encompassing a “Final Decision” and an “Exhaustion”
requirement. 199 F.3d at 372 [11] 199 F.3d at 373.
See also Hager v. City of West
Peoria, 84 F.3d 865 (7th Cir. 1996); River Park, Inc.
v. City of Highland Park, 23 F.3d 164 (7th Cir. 1994).
The Forseth
approach to ripeness was used in Watson v. City of Chicago, 2000
WL 516533 (N.D.Ill.) where an owner claimed that Chicago mistakenly
demolished her house pursuant to a “fast-tract” demolition ordinance
in violation of both the 5th and 14th Amendments.
The court dismissed the takings claim because the plaintiff
had not sought state court relief but allowed her to re-cast her
due process claim by amending her complaint. [12] Woodwind Estates,
Ltd. v. Gretkowski, 205 F.3d 118 (3rd Cir. 2000). The district court opinion is analyzed at Kramer
I, note 1 supra at §1.02[1][b]. [13] This is to be
distinguished from the Second and Seventh Circuits which apply a
“strict entitlements” approach. [14] 205 F.3d at 124
citing Bello v. Walker, 840 F.2d 1124 (3rd Cir.), cert. denied,
488 U.S. 851 (1988). See also
Blanche Road Corp. v. Bensalem Township, 57 F.3d 253 (3rd
Cir.), cert. denied,
516 U.S. 915 (1995). [15] Acierno v. New
Castle County, 2000 WL 718346 (D.Del.).
[16] Id.
at *3 relying on DeBlasio v. Zoning Board of Adjustment, 53 F.3d
592 (3rd Cir.), cert.
denied, 516 U.S. 937 (1995). [17] The Supreme Court
has taken a similar approach in F.C.C. v. Beach Communications,
Inc., 508 U.S. 307 (1993). [18] Id.
at *9. [19] 2000 WL 1100848
(E.D.Pa.) [20] An earlier decision
of the Pennsylvania Commonwealth Court gives a detailed version
of the litany of administrative and legislative decisions involved
over that 10 year period. Pequea
Township v. Herr, 716 A.2d 678 (1998). [21] Pa.Stat.Ann. tit.
53, § 10508(4)(I). [22] 2000 WL 1100848
at *8. [23] 102 F.Supp.2d
431 (W.D.Mich. 2000). [24] 961 F.2d 1211
(6th Cir. 1992). There
are, however, Sixth Circuit decisions that do not follow that deferential
approach. See Berger v.
City of Mayfield Heights, 154 F.3d 621 (6th Cir. 1998);
Curto v. City of Harper Woods, 954 F.2d 1237 (6th Cir.
1992). [25] 88 F.Supp.2d 888
(N.D.Ill. 2000). [26] Id. at 891. [27] 81 F.Supp.2d 800
(E.D.Mich. 1999). [28] Nasierowksi Bros.
Investment Co. v. City of Sterling Height, 949 F.2d 890 (6th
Cir. 1991). [29] 99 F.Supp.2d 1263
(W.D.Wash. 1999). [30] 101 F.Supp.2d
26 (D.Mass. 2000). [31] See PFZ Properties,
Inc. v. Rodriguez, 928 F.2d 28 (1st Cir. 1991). [32] 109 F.Supp.2d
503 (E.D.La. 2000). [33] 95 F.Supp.2d 90
(D.Conn. 2000). [34] 22 S.W.3d 868
(Tex. 2000). [35] Tex.Water Code § 26.179. [36] Justice Baker
wrote for the 6 justice majority.
Justices Owen and Hecht filed separate dissenting opinions
joined in both by Justice Abbott.
The open and at times quite personal disagreements between
the majority and dissenting opinions is reflected in the following
quotes: “Most of Justice Owen’s dissent is nothing more than inflammatory
rhetoric, and thus merits no response.” Id at
877. Justice Owen responds
in kind: “I am at a loss to understand what is driving the Court’s
opinion, since it clearly is not reasoned decision-making.
I know only that the Court today exercises raw power to override
the will of the Legislature and of the people of Texas.” Id. at 889. [37] The court has
struggled in the past few years with this delegation issue. See Proctor v. Andrews, 972 S.W.2d 729 (Tex.
1998); Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen,
952 S.W.2d 454 (Tex. 1997). [38] Justice Abbott
in his dissent argued that there was no delegation, an argument
he also unsuccessfully made in the Boll Weevil Foundation case. [39] 22 S.W.3d at 874. [40] 2000 ME 109, 753
A.2d 489. [41] 709 N.Y.S.2d 734
(App.Div. 2000), aff’g, 180 Misc.2d 881, 691 N.Y.S.2d 706 (Sup.Ct. 1999). [42] See Kramer I,
note 1 supra
at § 1.02[2][f]. [43] 709 N.Y.S.2d at
736. [44] 2000 WI 61, 235
Wis.2d 597, 612 N.W.2d 44. [45] 612 N.W.2d at
47. [46] 2000 WI 60, 235
Wis.2d 610, 612 N.W.2d 59. The
court of appeals decision, 225 Wis.2d 672, 593 N.W.2d 878 (1998)
is analyzed at Kramer I, note 1 supra
at § 1.02[2][g]. [47] Felder v. Casey,
487 U.S. 131 (1988). [48] 2000 WL 1126046
(La.App. 2000), writ denied, --- So.2d --- (La. 2000). [49] See St. Charles
Avenue Corp. v. City of New Orleans, 704 So.2d 909 (La.App. 1997),
writ denied, 712 So.2d 881 (La. 1998). [50] 744 A.2d 359 (Pa.Commw.
2000). [51] 195 F.3d 1225
(11th Cir. 1999), cert. denied, 2000 WL 693530 (2000). [52] 2000 WL 680412
(S.D.Ind.). [53] Reel Pipe &
Valve Co. v. Indianapolis, 633 N.E.2d 274 (Ind.App.), cert. denied, 513 U.S. 1058
(1994). [54] See also Forseth
v. Village of Sussex analyzed in
§ 1.02[1][b] supra and Hager v. City of West Peoria, 84
F.3d 865 (7th Cir. 1996). [55] 214 F.3d 573 (5th
Cir. 2000). [56] There is a split
of authority on the melding or separating of due process and takings
claims. Compare South County Sand &
Gravel v. Town of South
Kingstown, 160 F.3d 834 (1st Cir. 1998)(no separate takings
and due process claims); Macri v. King County, 126 F.3d 1125 (9th
Cir. 1997), cert.
denied, 522 U.S. 1153 (1998)(same); Bateman v. City of
West Bountiful, 89 F.3d 704 (10th Cir. 1996)(same) with Berger v. City of Mayfield
Heights, 154 F.3d 621 (6th Cir. 1998)(separate takings
and due process claims); Restigouche, Inc. v. Town of Jupiter, 59
F.3d 1208 (11th Cir. 1995); Villager Pond, Inc. v. Town
of Darien, 56 F.3d 375 (2nd Cir. 1995), cert.
denied, 519 U.S. 808 (1996); Taylor Investment, Ltd.
v. Upper Darby Township, 983 F.2d 1285 (3rd Cir.), cert. denied, 510 U.S. 914
(1993). [57] 2000 WL 968782
(N.D.Tex.), clarifying, 61 F.Supp.2d 542 (N.D.Tex. 1999) and 82
F.Supp.2d 616 (N.D.Tex. 1998). [58] See Tex.Gov’t.Code
Ann. §§ 481.141 et seq. [59] 76 F.Supp.2d 1173
(D.Kan. 1999). [60] See Landmark Land
Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717 (10th
Cir. 1989), abrogated
on other grounds, Federal Lands Legal Consortium v. U.S.,
195 F.3d 1190 (10th Cir. 1999).
Graham v. Connor, 490 U.S. 386 (1989) provided the basis
for the rule that allows the due process and equal protection claims
to be subsumed within the regulatory takings claim. [61] See also
Norton v. Village of Corrales, 103 F.3d 928 (10th Cir.
1996), analyzed at Kramer II, note 1 supra at § 1.03[1][d]. [62] 726 N.E.2d 1217
(Ind. 2000). [63] 88 Ohio St.3d
7, 722 N.E.2d 1018 (2000). [64] See Goldberg Cos.
v. Richmond Heights City Council, 81 Ohio St.3d 207, 690 N.E.2d
510 (1998) and Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 638
N.E.2d 533 (1994). [65] 83 Cal.App.4th
239, 100 Cal.Rptr.2d 1 (2000). [66] San Remo Hotel
v. City and County of San Francisco, 145 F.3d 1095 (9th
Cir. 1998). [67] Ehrlich v. City
of Culver City, 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911
P.2d 429 (1996). [68] In an analogous
situation the New York Court of Appeals found a hotel conversion
ordinance invalid in Seawall Associates v. City of New York, 74
N.Y.2d 92, 544 N.Y.S.2d 542, 542 N.E.2d 1059, cert. den., 493 U.S. 976 (1989). [69] Tenderloin Housing
Clinic is analyzed at § 1.07[1][a][v] infra. [70] 357 Md. 484, 745
A.2d 1000 (Md.App. 2000). [71] 216 F.3d 764 (9th
Cir. 2000). [72] See Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning Commission,
34 F.3d 753 (9th Cir. 1994), 938 F.2d 153 (9th
Cir. 1991), 911 F.2d 1331 (9th Cir. 1990). [73] 19 Cal.4th
952, 81 Cal.Rptr.2d 93, 968 P.2d 993, cert. denied, 119 S.Ct. 1804 (1999). [74] This questions
is explored in greater depth in Edward Ziegler, Development Exactions
and Permit Decisions: Nollan, Dolan and Del Monte Dunes, at Chapter
4 infra.
[75] Judge Kennard
concurred while Judges Baxter, Chin and Brown wrote separate dissenting
opinions. Judge Kennard
acknowledges that the substantially advancing test is the type of
means-end analysis used in substantive due process decisions such
as Nectow v. Cambridge, 277 U.S. 183 (1928). 968 P.2d at 1009-10.
Justice Baxter would hold that the substantially advancing
test must be applied with some level of judicial scrutiny and that
to do so would not revive substantive due process review. 968 P.2d
at 1013-14. [76] 968 P.2d at 999-1000. [77] 99 Wash.App. 127,
990 P.2d 429 (1999). [78] See Ziegler, note
?? supra
for a review of the various state court approaches to what triggers
the Nollan-Dolan
hard look approach. [79] 94 N.Y.2d 96,
699 N.Y.S.2d 721, 721 N.E.2d 971 (1999). [80] 57 Cal.App.4th
1172, 67 Cal.Rptr.2d 562 (1997), opinion superseded, 71 Cal.Rptr.2d 215, 950
P.2d 59 (1998), review dismissed, cause remanded, 87 Cal.Rptr.2d 412, 981 P.2d 41 (1999), cert.
denied 120 S.Ct. 1549 (2000). I
find it interesting that Justice Scalia would agree to hear a case
where the opinion he savages has been withdrawn so that he can issue
an advisory opinion to the states not to mess with Dollan-Nolan. [81] 78 Cal.App.4th
1252, 93 Cal.Rptr.2d 725 (2000). [82] 212 F.3d 1 (1st
Cir. 2000). [83] Mass.Gen.Laws
ch. 40A, §3. [84] The dissenting
judge who also applied Lemon concluded that the statute was not
merely intended to erase discriminatory local actions, but was originally
designed to provide a direct benefit to religious uses. Massachusetts
could have passed a statute barring local discrimination as opposed
to a statute exempting them from local use regulation.
This special treatment goes too far in providing benefits
and not merely lifting burdens on the free exercise rights of the
churchgoers. 212 F.3d at 11-12 (Toruella, J. dissenting).
The Supreme Court is still struggling with the parameters
of the Establishment Clause as reflected in Mitchell v. Helms, 120
S.Ct. 2530 (2000) a parochial school aid program where there was
a 4 judge plurality opinion, a 2 judge concurrence and a 3 judge
dissent. The plurality opinion would sweep away most
Establishment Clause precedent and apply a Smith-type neutrality test so that if government
aid is supplied to both public and parochial schools there is no
constitutionality claim. The
plurality disagree with that sweeping neutrality test and suggest
that the court has always considered other factors in resolving
Establishment Clause problems. The dissent wants a clearer test that is truer
to the wall of separation concept. [85] 84 F.Supp.2d 668
(D.Md. 2000). [86] 2000 WL 760939
(Miss.App.). [87] 58 Conn.App. 441,
755 A.2d 249 (2000). [88] 752 So.2d 708
(Fla.App. 2000). See also
Miami-Dade County v. New Life Apostolic Church of Jesus Christ,
Inc., 750 So.2d 738 (Fla.App. 2000) where the appellate court reinstated
the county’s decision not to issue a series of variances to a church
to establish a church sanctuary and day care center, after that
decision had been overturned by the trial court. The appellate court found that there was substantial
evidence in the record to support the variance denial decision based
on such negative externalities as noise, traffic and deleterious
impact on nearby residences. [89] 2000 WL 833077
(Fla.App.) [90] Fla.Stat. §§ 761.02-.05. [91] 743 A.2d 1019
(Pa.Commw. 2000). [92] A dissenting judge
would have found that the proposed uses are religious uses since
they are part of a religious program.
The existence or non-existence of religious practices does
not determine whether there is a religious use under the ordinance.
The ordinance, if interpreted otherwise, might lead to an
entanglement of the court in religious practices to make a determination
as to what type of uses are allowed.
743 A.2d at 1024-25 (Smith, J. dissenting). [93] 120 S.Ct. 1382
(2000). This is a typical
fractured First Amendment decision.
Seven of the justices agreed that the case was not mooted
by the closing of the AEF. But only 4 justices, O’Connor, Rehnquist, Kennedy
and Breyer joined in the plurality opinion. Justices Scalia and Thomas want to apply the Smith rationale that the First
Amendment does not apply to a general law regulating conduct and
not directed at expression. Justice
Souter concurred in part and dissented in part and Justices Stevens
and Ginsburg dissented. [94] Barnes v. Glen
Theatre, Inc., 501 U.S. 560 (1991). [95] 553 Pa. 347, 719
A.2d 273 (1998). The court
followed the O’Brien
test and found the ordinance content based.
It said it could not find any controlling decision in Barnes
due to the fact that 8 opinions were filed. [96] 120 S.Ct. at 1402. [97] See also
People v. Foley, 94 N.Y.2d 668, 731 N.E.2d 123, 709 N.Y.S.2d 467
(2000) where the court upheld a conviction under a statute criminalizing
the dissemination of indecent material to minors against a charge
that it was overbroad as applied to certain internet communications.
Unlike the federal Communications Decency Act invalidated
in Reno v. American Civil Liberties Union, 521
U.S. 844 (1997), the New York Penal Code punishes not the mere transmission
of certain types of communication but adds several requirements
including showing an intent to induce or invite activities affecting
minors. The court also found that the statute was content
based but because it was speech used to further the sexual exploitation
of children it was not protected by the First Amendment. [98] 94 F.Supp. 357
(E.D.N.Y. 2000), on remand from, 159 F.3d 749 (2nd Cir. 1998).
See also DJL Restaurant Corp.
v. City of New York, 271 A.D.2d 275, 706 N.Y.S.2d 395, app. denied,
95 N.Y.2d 845 (2000) where the court found that the New York City
AEF ordinance was not preempted by the state alcohol law because
the AEF ordinance only has an incidental effect on those holding
liquor licenses. [99] 2000 WL 966706
(11th Cir.). [100] See Sammy’s of
Mobile, Ltd. v. City of Mobile, 140 F.3d 993, reh'g denied, 156 F.3d 188
(11th Cir.), cert. denied,
120 S.Ct. 1553, (2000). [101] 200 F.3d 1325
(11th Cir. 2000). [102] The court found
that neither the issue or claim preclusion or Rooker-Feldman doctrines
prevented the federal district court from determining the issue
of whether the ordinance was unconstitutional per se or as applied.
200 F.3d at 1331-32. A
state court denial of a request for a preliminary injunction is
not a final or conclusive judgment on the merits of the constitutional
claims and therefore cannot bar the district court’s review on the
merits. [103] International
Eateries of America v. Broward County, 941 F.2d 1157 (11th
Cir. 1991), cert.
denied, 503 U.S. 920 (1992). [104] Woodall v. City
of El Paso, 49 F.3d 1120, reh'g denied, 59 F.3d 1244 (5th
Cir.), cert.
denied, 516 U.S. 988 (1995). Other circuits that follow
this approach include the Eighth, Alexander v. City of Minneapolis,
928 F.2d 278 (8th Cir. 1991) and the Fourth, D.G. Restaurant
Corp. v. City of Myrtle Beach, 953 F.2d 140 (4th Cir.
1991). [105] Topanga Press,
Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir.
1993), cert. denied,
511 U.S. 1030 (1994). [106] 200 F.3d at 1334-35. [107] 216 F.3d 807 (9th
Cir. 2000). [108] 216 F.3d at 817. [109] A dissenting judge
argued that the sensitive veto issue was hypothetical only and that
plaintiff lacked standing to challenge it.
As the majority noted,
the city issued a sensitive use permit to a bible study group at
the same time it denied the plaintiff’s permit because of the existence
of that sensitive use. 216 F.3d at 823. [110] 459 U.S. 116 (1982). [111] 217 F.3d 1050,
as amended,
2000 WL 1191043 (9th Cir.). [112] See also
J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362 (5th
Cir. 1998) analyzed at Kramer I, note 1 supra at § 1.04[a][2][vii]; Phillips v. Borough
of Keyport, 107 F.3d 164 (3d Cir.)(en banc), cert. denied, 522 U.S. 932
(1997) analyzed at Kramer II, note 1 supra at § 1.04[2][a][iv]. [113] 222 F.3d 719 (9th
Cir. 2000). [114] The court noted
the differences in approaches taken by the 9th Circuit
to applying Renton
that had been established in Colaruccio v. City of Kent, 163 F.3d
545 (9th Cir. 1999), cert.
denied, 120 S.Ct. 1553 (2000) and Tollis v. San Bernardino
County, 827 F.2d 1329 (9th Cir. 1987).
In Tollis the three step test involved: 1. determining that
the ordinance was a time,
place and manner regulation, 2. determining that it was content
neutral or content based and then, if content neutral, 3. does it
serve a substantial government interest and not unreasonably limit
alternative avenues of communication. Colacurcio, on the other hand, presumes that
the ordinance is a time, place and manner regulation and then asks,
1 is it content neutral, and if so, 2. is it narrowly tailored to
serve a significant governmental interest, and 3. does it leave
open ample alternative avenues of communication.
222 F.3d at 722-23. [115] Several of the
other circuits appear to have a more lenient interpretation what
a city can rely on. ILQ
Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th
Cir.), cert. denied, 513 U.S. 1017
(1994); Mitchell v. Commission on Adult Entertainment Establishments,
10 F.3d 123 (3rd Cir. 1993); Hart Book Stores, Inc. v.
Edmisten, 612 F.2d 821 (4th Cir. 1979), cert. denied, 120 S.Ct. 1965 (2000). [116] 215 F.3d 1052
(9th Cir. 2000), as amended on denial of rehearing, 2000 WL
1022716. [117] 199 F.3d 50 (1st
Cir. 1999). [118] 217 F.3d 1350
(11th Cir. 2000). [119] See Boss Capital,
Inc. v. Casselberry, 187 F.3d 1251 (11th Cir. 1999),
cert. denied,
120 S.Ct. 1423 (2000) analyzed at Kramer I, note 1 supra at § 1.04[1][a][x]. [120] Two other decisions
have reached the same result. Steakhouse, Inc. v. City of Raleigh,
166 F.3d 634 (4th Cir. 1999) analyzed at Kramer I, note
1 supra at § 1.04[1][a][viii]; Florida Video Xpress,
Inc. v. Orange County, 983 F.Supp. 1091 (M.D.Fla. 1997). [121] The court also
quickly dismissed the argument that the AEF ordinance was unconstitutionally
overbroad because of the use of the terms sexual gratification and
sexual stimulation. 217
F.3d at 1355. [122] 95 F.Supp.2d 1027
(D.Minn.). [123] The court distinguished
a free exercise case, Church of The Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520 (1993) where the Supreme Court clearly
did not at the intent of the city in enacting the ordinance prohibiting
animal cruelty. [124] See cases cited
in note ?? supra.
[125] See also Farkas
v. Miller, 151 F.3d 900 (8th Cir. 1998). [126] T Backs Club,
Inc. v. Seaton, 84 F.Supp.2d 1317 (M.D.Ala. 2000). [127] See also Ranch
House v. Amerson, 22 F.Supp.2d 1296 (N.D.Ala. 1998) [128] Nightclubs, Inc.
v. City of Paducah, 202 F.3d 884 (6th Cir. 2000). [129] 314 Ill.App.3d
1000, 248 Ill.Dec. 4, 733 N.E.2d 451 (2000). [130] 55 ILCS 5/5-1097.5. [131] 532 S.E.2d 594
(N.C.App. 2000). [132] 709 N.Y.S.2d 110
(App.Div. 2000). [133] 2000 WL 760716
(S.C.). The South Carolina Supreme Court has not exactly been a friend or
supporter of AEFs. Last
year in Restaurant Row Associates v. Horry County, 335 S.C. 209,
516 S.E.2d 442, cert. denied,
120 S.Ct. 528 (1999), the court upheld an AEF ordinance both on
First Amendment grounds and on state law grounds relating to the
variance denial decision that was made by the county. [134] 2000 WL 1206347
(Fla.App.). [135] 217 F.3d 1360
(11th Cir. 2000). [136] This same issue
had split a panel of the court with the majority finding O’Brien
applicable. Sammy’s of Mobile,
Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir. 1998),
cert. denied, 120 S.Ct. 1553
(2000). [137] 340 S.C. 87, 530
S.E.2d 890 (2000). [138] 22 S.W.3d 463
(Tex.Crim.App. 1999). [139] The court also
disposed on an argument that the prosecutor lacked standing to appeal
the intermediate appellate court’s reversals of the convictions. 22 S.W.3d at 464-65. [140] 328 N.J.Super.
181, 745 A.2d 540, certif. denied, 165 N.J. 134, 754 A.2d 1210
(2000). [141] N.J.Stat.Ann.
§ 2C:34-1 et seq. [142] 745 A.2d 1155
(N.H. 2000). [143] 183 Misc.2d 489,
703 N.Y.S.2d 900 (2000). [144] See City of New
York v. Les Hommes, 94 N.Y.2d 267, 702 N.Y.S.2d 576, 724 N.E.2d
368 (1999) analyzed at § 1.04[2][a][xxix] infra. [145] 109 F.Supp.2d
161 (S.D.N.Y. 2000). [146] 24 S.W.3d 917 (Tex.App.—Dallas 2000). [147] 2000 WL 1285413
(Minn.App.) [148] 25 S.W.3d 629
(Mo.App. 2000). [149] St. Louis County
v. B.A.P., Inc., 18 S.W.3d 397 (Mo.App. 2000). [150] 94 N.Y.2d 267,
702 N.Y.S.2d 576, 724 N.E.2d 368 (1999). [151] 22 S.W.3d 5 (Tex.App.—Dallas
2000). See also
City of New York v. Desire Video, 267 A.D.2d 164, 700 N.Y.S.2d 446
(1999) where the court found that an AEF had violated a prior court
order to abate the nuisance it was creating by lowering the amount
of adult material being sold or offered where inspections showed
77% of the stock was comprised of adult material. [152] Dallas Merchant’s
& Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489 (Tex.
1993). [153] 87 F.Supp.2d 322
(S.D.N.Y. 2000). [154] National Advertising
Co. v. Town of Niagara, 942 F.2d 145 (2d Cir. 1991). [155] City of Newport
v. Fact Concerts, Inc., 453 U.S. 247 (1981). [156] 463 Mich. 17,
614 N.W.2d 634 (Mich. 2000). [157] Adams Outdoor
Advertising v. City of East Lansing, 439 Mich. 209, 483 N.W.2d 38
(1992). [158] See K & K
Construction, Inc. v. Department of Natural Resources, 456 Mich.
570, 575 N.W.2d 531, cert
denied, 525 U.S. 819, reh'g denied, 525 U.S. 1034 (1998). [159] 81 F.Supp.2d 930
(C.D.Ill. 2000). [160] Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). [161] 86 F.Supp.2d 755,
clarification denied, 108 F.Supp.2d 792 (N.D.Ohio 2000). [162] See City of Cincinnati
v. Discovery Network, Inc., 507 U.S. 410 (1993). [163] 86 F.Supp.2d at
770 quoting from Greater New Orleans Broadcasting Assoc., Inc. v.
U.S., 527 U.S. 173, 119 S.Ct. 1923, 1932 (1998).
There are some who feel that the Central Hudson test has moved in the direction
of strict scrutiny analysis, especially in light of 44 Liquormart,
Inc. v Rhode Island, 517 U.S. 484 (1996).
See, Kathleen Sullivan, “Cheap Spirits, Cigarettes and Free
Speech: The Implications of 44 Liquormart, 1996 Sup.Ct.Rev. 123,
128, 141-42 (1997). [164] In a later opinion
the court reaffirmed its finding that the permit requirements violated
the Freedman
guidelines for prior restraints.
Prompt review to an architectural review board is insufficient
since review must be by an independent branch of government.
In addition, in Nightclubs, at § 1.04[2][a][xi] supra the Sixth Circuit found
that a licensing scheme must not merely provide access to prompt
judicial review, but must ensure a prompt judicial determination
in order to satisfy Freedman.
North Olmsted Chamber of Commerce v. City of North Olmsted, 108
F.Supp.2d 792 (N.D.Ohio 2000). [165] 89 Ohio St.3d
564, 733 N.E.2d 1152 (2000). [166] See e.g., Whitton
v. Gladstone, 54 F.3d 1400 (8th Cir. 1995); Dimas v.
City of Warren, 939 F.Supp. 554 (E.D.Mich. 1996); Orazio v. North
Hempstead, 426 F.Supp. 1144 (E.D.N.Y. 1977); Union City Board of
Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 467
S.E.2d 875 (1996); Collier v. City of Tacoma, 121 Wash.2d 737, 854
P.2d 1046 (1993). [167] 107 F.Supp.2d
355 (S.D.N.Y. 2000). [168] 101 F.Supp.2d
301 (E.D.Pa. 2000). [169] 760 So.2d 126
(Fla. 2000). [170] The restrictions
were tailored to comply with the exemption of such actions from
the application of the Fair Housing Act.
42 U.S.C. § 3607. [171] 583 So.2d 635
(Fla. 1991). [172] See Collier County
v. State, 733 So.2d 1012 (Fla. 1999) where the court found that
an "interim governmental services fee" designed to recapture
the "lost" assessments where property improvements occur
after January 1 of each year was a tax
and not a fee. Since
the county did not have the power to impose such an ad valorem tax
the ordinance was ultra vires. [173] 89 Ohio St.3d
121, 729 N.E.2d 349, reconsideration denied, 89 Ohio St.3d 1471,
732 N.E.2d 1002 (2000). [174] The basis for
the matching funds requirement comes from two decisions, Towne Properties,
Inc. v. Fairfield, 50 Ohio St.2d 356, 4 O.O.3d 488, 364 N.E.2d 289
(1977) and Building Industry Ass’n of Cleveland & Suburban Citys
v. Westlake, 103 Ohio App.3d 546, 660 N.E.2d 501 (1995). [175] 729 N.E.2d at
354. [176] Id.
at 354-55. [177] This was a 4-3
decision. Two dissenters
argued that this was a tax and noted that they would apply the Pioneer Trust test if it was
a fee. 729 N.E.2d at 358-59
(Pfeifer, J. dissenting). [178] 49 Mass.App.Ct.
500, 730 N.E.2d 900 (2000). [179] See e.g., Emerson
College v. Boston, 391 Mass. 415, 462 N.E.2d 1098 (1984); Daniels
v. Point Pleasant, 23 N.J. 357, 129 A.2d 265 (1957). [180] 270 A.D.2d 879,
705 N.Y.S.2d 468, app. denied, 95 N.Y.2d 757, 713 N.Y.S.2d 1, 734 N.E.2d 1212
(2000). [181] 141 Wash.2d 185,
4 P.3d 115 (2000). [182] Noble Manor v.
Pierce County, 133 Wash.2d 269, 943 P.2d 1378 (1997). [183] In accord
Schneider Homes, Inc. v. City of Kent, 87 Wash.App. 774, 942 P.2d
1096, 971 P.2d 56 (1997), rev. denied, 134 Wash.2d 1021, 958 P.2d 316 (1998). [184] 732 N.E.2d 215
(Ind.App.2000). [185] A dissenting judge
noted the inconsistency in the majority’s view of the actions of
the commission. He argued
that the selective enforcement claims and the fact that staff review
had not singled out the parking space problem did not make the decision
arbitrary or capricious. 732 N.E.2d at 224 (Shapnack, C.J., dissenting
in part). [186] 21 S.W.3d 307
(Tex.App.—San Antonio 1999). [187] Tex.Local Gov’t
Code § 232.001-.002. [188] 253 Conn. 381,
752 A.2d 503 (2000). [189] Conn.Gen.Stat.
§ 8-26. [190] Winchester Woods
Associates v. Planning & Zoning Commission, 219 Conn. 303, 592
A.2d 953 (1991). [191] 132 Md.App. 413,
752 A.2d 1199 (2000). [192] See County Council
of Prince George’s County v. Curtis Regency, 121 Md.App. 123, 708
A.2d 1058, cert.
denied, 351 Md. 5, 715 A.2d 964 (1998). [193] 2000 WL 690156
(Mo.App.) [194] 761 So.2d 397
(Fla.App. 2000). [195] 80 Cal.App.4th
438, 94 Cal.Rptr.2d 901 (2000). [196] Cal.Gov’t Code
§§ 66410 et seq. [197] 2000 WL 303057
(Ala.Civ.App.) [198] 134 Idaho 353,
2 P.3d 738 (2000). [199] 743 A.2d 1231
(D.C.App. 2000). [200] 327 N.J.Super.
535, 744 A.2d 222 (2000). [201] In Macedonian
Orthodox Church v. Planning Board of Randolph Township, 269 N.J.Super.
562, 636 A.2d 96 (1994) the court found a significant change where
the building and parking area were doubled in size between the preliminary
and final site plans. [202] 2000 WL 1253823
(Idaho). In a related case
dealing with the city’s approval of this same plat under a statute
giving the city the power to review plats within a designated extra-territorial
area see Blaha v. Eagle City Council, 2000 WL 1256889 (Idaho).
In that case the court found that the city’s order was only
an interlocutory order and therefore not appealable. [203] City of Colorado
Springs v. Securcare Self Storage, Inc., 2000 WL 1335887 (Colo.) [204] The court had
to distinguish several cases that suggested that permitted uses
had to be allowed. See Sherman
v. City of Colorado Springs Planning Commission, 763 P.2d 292 (Colo.
1988); Sherman v. City of Colorado Springs Planning Commission,
680 P.2d 1302 (Colo.App. 1983); Western Paving Construction Co.
v. Board of County Commissioners, 181 Colo. 77, 506 P.2d 1230 (1973).
Two dissenting justices argued that land use ordinances should
be construed in favor of allowing the free use of land and thus
permitted uses should be allowed “as of right.” 2000 Wl 1335887
at *10 (Kourlis, J. dissenting). [205] 2000 WL 11147778
(Pa.Commw.) [206] 2000 MT 15, 298
Mont. 91, 994 P.2d 1098. [207] 101 Wash.App.
1033, 2000 WL 896411 (unpublished opinion). [208] Petersburg Cellular
Partnership v. Board of Supervisors, 205 F.3d 688 (4th
Cir. 2000). The district
court opinion reported at 29 F.Supp.2d 701 (E.D.Va. 1998) is analyzed
at Kramer I, note 1 supra
at § 1.06[1]l]. [209] See Kenneth Baldwin,
The Telecommunications Act of 1996: Developing Caselaw of Towering
Proportions, 1998 Inst. on Zoning, Planning & Eminent Domain
8-1; Kramer I, note 1 supra
at 1.06[1] and Kramer II,
note 1 supra
at § 1.06[1]. In 1998 I
reviewed 5 cases, in 1999 I reviewed 25 cases and this year I am
reviewing 26 cases. [210] 47 U.S.C. 332 (c). [211] See e.g., AT&T
Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423
(4th Cir. 1998) and AT&T Wireless PCS, Inc. v. Winston-Salem
Zoning Board of Adjustment, 172 F.3d 307 (4th Cir. 1999),
discussed at Kramer I, note 1 supra
at §1.06[1][d]. [212] See e.g, City
Council of Virginia Beach v. Harrell, 236 Va. 99, 372 S.E.2d 139
(1988). An exception appears to apply for “socio-economic”
zoning, whatever that may be. Board
of Supervisors v. DeGroff Enterprises, 198 S.E.2d 600 (Va. 1973). [213] 205 F.3d at 700. [214] Printz v. U.S.,
521 U.S. 898 (1997). [215] 205 F.3d at 701. [216] See e.g., Testa
v. Katt, 330 U.S. 386 (1947). [217] 211 F.3d 79 (4th
Cir. 2000). [218] 199 F.3d 1185
(10th Cir. 1999). [219] 2000 WL 761002
(D.Me.). [220] See Goldstein
v. City of South Portland, 728 A.2d 164 (Me. 1999), analyzed in
Kramer I, note 1 supra
at §1.07[1][b][i]. [221] See Town of Amherst
v. Omnipoint Communications, Inc., 173 F.3d 9 (1st Cir.
1999), analyzed in Kramer I, note 1 supra at
§1.06[1][e]. [222] 99 F.Supp.2d 190
(D.R.I. 2000). [223] 99 F.Supp.2d 381
(S.D.N.Y. 2000). [224] See e.g., Cellular
Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2nd
Cir. 1999), analyzed at Kramer I, note 1 supra at
§1.06[1][b]. [225] 197 F.3d 64 (3rd
Cir. 1999), aff’g
in part and rev’g in part, 24 F.Supp.2d 359 (D.N.J. 1998). [226] The court is adopting
the test announced by the Second Circuit in Sprint Spectrum, L.P..
v. Willoth, 178 F.3d 630 (2nd Cir. 1999) analyzed at
Kramer I, note 1 supra
at §1.06[1][a]. [227] 197 F.3d at 70. [228] Id.
at 71. [229] See e.g., Coventry
Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285,
650 A.2d 340 (1994); Sica v. Board of Adjustment, 127 N.J. 152,
603 A.2d 30 (1992). [230] 196 F.3d 469 (3rd
Cir. 1999). [231] For a similar
approach to the substantial evidence test see Omnipoint Communications
Enterprises, L.P. v. Zoning Hearing Board, 72 F.Supp.2d 512 (E.D.Pa.
1999). [232] See e..g, Farrell
v. Worcester Township Board of Supervsiors, 85 Pa.Commw. 163, 481
A.2d 986 (1984) ; Exton Quarries, Inc. v. Zoning Board of Adjustment,
425 Pa. 43, 228 A.2d 169 (1967). [233] 2000 WL 979952
(3rd Cir.). [234] The use of Section
1983 in Act cases has led to disparate results within the federal
district courts. Compare Omnipoint Communications v. Penn Forest Township, 42
F.Supp.2d 493 (M.D.Pa. 1999)(no
1983 cause of action); AT&T Wireless PCS, Inc. v. City
of Atlanta, 50 F.Supp.2d 1352 (N.D.Ga. 1999) (same), rev’d, 210 F.3d 1322 (11th Cir.
2000); Omnipoint Communications Enterprises, L.P. v. Zoning Hearing
Board, 72 F.Supp.2d 512 (E.D.Penn. 1999)(same);National Telecommunications
Advisors, Inc. v. City of Chicopee, 16 F.Supp.2d 117 (D.Mass. 1998)(same)
with AT&T Wireless PCS,
Inc. v. City of Atlanta, 210 F.3d 1322 (11th Cir. 2000)
discussed at § 1.06[p] infra (§1983 cause of action valid); Omnipoint Communications,
Inc. v. Planning & Zoning Commission, 91 F.Supp.2d 497 (D.Conn.
2000)(same) at § 1.06[1][o] infra; Cellco Partnership v. Town Planning
& Zoning Commission, 3 F.Supp.2d 178 (D.Conn. 1998)(same); Sprint
Spectrum L.P. v. Town of Easton, 987 F.Supp. 47 (D.Mass 1997)(same);
Omnipoint Communications Enterprises, L.P. v. Chadds Ford Township,
1998 WL 764762 (E.D.Pa.)(same). [235] 2000 WL 128703
(E.D.Pa.) [236] See cases cited
in note 220 supra
for the split in authority on this issue. [237] 90 F.Supp.2d 557
(D.N.J. 2000). [238] 84 F.Supp.2d 379
(E.D.N.Y. 2000). [239] The court also
noted that during this period, the principal owner of the plaintiff
corporation was accused, tried and then acquitted of offering bribes
to town board members to favorably vote on the zoning change.
84 F.Supp.2d at 384. Plaintiff
claimed that in fact the two board members solicited a bribe in
exchange for their vote and then made false misrepresentations about
him triggering the criminal action. [240] See e.g., Bellsouth
Mobility, Inc. v. Parish of Plaquemines, 40 F.Supp.2d 372 (E.D.La.
1999); Cellco Partnership v. Town Plan & Zoning Commission of
Farmington, 3 F.Supp.2d 372 (D.Conn. 1998); OPM-USA, Inc. v. Board
of County Commissioners, 7 F.Supp.2d 1316 (M.D.Fla. 1997). [241] See e.g., Latrieste
Restaurant v. Village of Port Chester, 188 F.3d 65 (2d Cir. 1999). [242] See Natale v.
Town of Ridgefield, 170 F.3d 258 (2d Cir. 1999) analyzed at Kramer
I, note 1 supra
at § 1.02[1][a]. [243] 83 F.Supp.2d 1158
(S.D.Cal. 2000). [244] Compare Sprint
Spectrum v. Board of County Commissioners, 59 F.Supp.2d 1101 (D.Colo.
1999) and Century Cellunet of Southern Michigan, Inc. v. City of
Ferrysburg, 993 F.Supp. 1072 (W.D.Mich. 1997)(burden on permit applicant)
with Cellco Partnership v. Town Planning & Zoning Commission,
3 F.Supp.2d 178 (D.Conn. 1998)(burden on city). [245] AT&T Wireless
PCF v. City Council of Virginia Beach, 155 F.3d 423 (4th
Cir. 1998). [246] See Omnipoint
Communications v. Penn Forest Township, 42 F.Supp.2d 493 (M.D.Pa.
1999) analyzed at Kramer I, note 1 supra at § 1.06[1][o]. [247] There are apparently
two views on whether a FCC license constitutes a property interest.
In MLQ Investors, L.P. v. Pacific Quadracasting, Inc., 146
F.3d 746 (9th Cir. 1998) the court suggested that it
was while in In re Ridgely Communications, Inc., 139 B.R. 374 (D.Md.
1992), the court reached an opposite conclusion. [248] 81 F.Supp.2d 257
(D.Mass. 2000). [249] See also Cellular
Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2nd
Cir. 1999) analyzed at Kramer I, note 1 supra at § 1.06[1][b]; Omnipoint Corp. v.
Zoning Hearing Board, 20 F.Supp.2d 875 (E.D.Pa. 1998). [250] 83 F.Supp.2d 306,
91 F.Supp.2d 497 (D.Conn. 2000). [251] See cases in note
220 supra
that discuss the disparate views of the courts on this issue. [252] 80 F.Supp.2d 1014
(W.D.Wis. 1999). [253] See cases cited
in note 230 supra.
[254] 210 F.3d 1322
(11th Cir. 2000). [255] The test is derived
from Blessing v. Freestone, 520 U.S. 329 (1997). [256] Judge Carnes,
dissented in part, on the issue of the application of § 1983. 210 F.3d at 1330. For cases finding that the remedial scheme is sufficiently comprehensive
to imply a preemption using an “occupation of the field” theory
see the cases cited in note 220 supra. [257] 2000 WL 1089511
(D.Mass.). [258] 81 F.Supp.2d 170
(D.Mass. 1999). [259] The court calls
these provisions as well as the non-discrimination provision, the
“NIMBY” provisions of the act. 81 F.Supp.2d at 171. [260] 204 F.3d 311 (2nd
Cir. 2000). [261] 2000 ME 577, 750
A.2d 577 [262] 2000 WL 1269388
(6th Cir.), aff’g, 43 F.Supp.2d 755 (E.D.Ky. 1999). [263] See also Michigan
Bell Telephone Co. v. Climax Telephone Co., 202 F.3d 862 (6th
Cir. 2000). [264] 2000 WL 1276834
(D.Conn.) [265] 327 N.J.Super.
476, 744 A.2d 190 (2000). [266] See Smart SMR
v. Fair Law Board of Adjustment, 152 N.J. 309, 704 A.2d 1271 (1998). [267] For other cases
upholding the denial of variances for a TCF see AWACS, Inc. v. Clemonton
Zoning Board of Adjustment, 160 N.J. 21, 733 A.2d 453 (1999); New
Brunswick Cellular Telephone Co. v. Borough of S. Plainfield Board
of Adjustment, 160 N.J. 1, 733 A.2d 442 (1999); New York SMSA Ltd.
Partnership v. Board of Adjustment, 324 N.J.Super. 166, 734 A.2d
826 (1999); New York SMSA Ltd. Partnership v. Board of Adjustment,
324 N.J.Super. 149, 734 A.2d 817 (1999). [268] 136 N.C.App. 444,
524 N.E.2d 608 (2000). [269] 2000 WL 1262849
(W.D.Pa.). [270] The court relied
on the Penn Township analysis to allocate the burden of proof and
require the least intrusive standard.
See § 1.06[1][h] supra. [271] The court also
dismissed the state law claim that the ordinance was exclusionary
since it did not allow a beneficial use.
Since the ordinance, as interpreted by the court, allowed
TCFs in the light industrial district, there was not a total exclusion.
While Pennsylvania law shifts the burden of proof once a
prima facie case of exclusion is made, no prima facie case was set
out by APT. See Fernley v. Board of Supervisors of Schuylkill
Township, 509 Pa. 413, 502 A.2d 585 (1985). [272] 266 A.D.2d 607,
697 N.Y.S.2d 743 (1999). [273] 78 F.Supp.2d 376
(E.D.Pa. 1999). [274] 58 Conn.App. 399,
755 A.2d 224 (2000). [275] 270 A.D.2d 844,
706 N.Y.S.2d 281 (2000). [276] 340 S.C. 174,
530 S.E.2d 636 (S.C.App. 2000). [277] S.C.Code § 6-29-770. [278] 560 Pa. 462, 746
A.2d 571 (2000). [279] 2000 WL 1153710
(Tex.App.—San Antonio). [280] 59 Conn.App. 608,
757 A.2d 1162 (2000). [281] Conn.Gen.Stat.
§ 8-30g governs appeals from affordable housing project denials. [282] See generally, Christian Activities
Council, Congregational, v. Town Council, 249 Conn. 566, 735 A.2d
231 (1999). [283] 432 Mass. 374,
734 N.E.2d 1143 (2000). [284] Mass.Gen.L. c.
40A, § 3 as interpreted in Trustees of Tufts College v. Medford,
415 Mass. 753, 616 A.2d 433 (1993). [285] 612 N.W.2d 177
(Minn.App. 2000). See also Mountain Protection
Alliance v. Fayette County Zoning Hearing Board, 757 A.2d 1007 (Pa.Commw.
2000) where an environmental group’s appeal of a decision to allow
a mining operation through the issuance of a special exception was
found by the court to be premature. [286] 334 N.J.Super.
201, 757 A.2d 822 (2000). For
another case dealing with an aggregate mining operation see Morse
Bros, Inc. v. Columbia County, 165 Or.App. 512, 996 P.2d 1023 (2000)
and Port of St. Helens v. Land Conservation & Development Commission,
165 Or.App. 487, 996 P.2d 1014 (2000), two cases arising under the
complex Oregon system of mandatory planning, state objectives and
mining operations. [287] See Township of
Fairfield v. Likanchuk’s, Inc., 274 N.J.Super. 320, 644 A.2d 120
(App.Div. 1994). The diminishing
assets doctrine is explored in depth in Bruce Kramer, "Local
Land Use Regulation of Extractive Industries: Evolving Judicial
and Regulatory Approaches," 14
U.C.L.A.J of Env’tl L. & Policy 42 (1996). [288] 708 N.Y.S.2d 171
(App.Div. 2000). [289] See Skenesborough
Stone, Inc. v. Villlage of Whitehall, 254 A.D.2d 664, 679 N.Y.S.2d
727 (19??). [290] See Kramer, Note
273 supra. [291] 995 P.2d 641 (Alaska
2000). [292] 2000 WL 1121363
(S.C.App.). See
also Riverwatch
v. County of San Diego, 76 Cal.App.4th 1428, 91 Cal.Rptr.
322 (1999) where the court extensively reviewed the environmental
impact report required under CEQA for the development of a quarry. [293] 2000 WL 1059643
(Tex.App.—San Antonio). [294] Tex.Loc. Gov’t
Code § 211.011(a)(2). [295] 2000 WL 875402
(6th Cir.). [296] The court distinguished
Berger v. City of Mayfield Heights, 154 F.3d 621 (6th
Cir. 1998) and Curto v. City of Harper Woods, 954 F.2d 1237 (6th
Cir. 1992). In Berger, the court invalidated an ordinance requiring
weeds to be cut down, but only on lots larger than one acre in size
while in Curto the court invalidated an ordinance restricting the
number of cars that could be parked in a garage that did not account
for the size of the garage or parking area.
Both of those cases appear to me to take a much harder look
at municipal land use choices under the substantive due process
regime. [297] Id. at *10.
He cited Silver v. Franklin Township, 966 F.2d 1031 (6th
Cir. 1992); Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th
Cir. 1992) and G.M. Engineers & Associates, Inc. v. West Bloomfield
Township, 922 F.2d 328 (6th Cir. 1990) as cases supporting
the dual definition of a protectible property interest. [298] 613 N.W.2d 264
(Iowa 2000). [299] Iowa Code § 174.3. [300] 2000 SD 80, 613
N.W.2d 523. [301] Coyote Flats,
L.L.C. v. Sanborn County Commission, 1999 SD 87, 596 N.W.2d 347
analyzed at Kramer I, note 1 supra at § 1.07[4][b]. [302] 609 N.W.2d 271
(Minn.App. 2000). [303] 259 Va. 577, 528
S.E.2d 447 (2000). [304] 166 Or.App. 540,
998 P.2d 794 (2000). [305] 165 Or.App. 138,
995 P.2d 1204 (2000). [306] 615 N.W.2d 874
(Minn.App. 2000). [307] See e.g., Canadian
Connection v. New Prairie Township, 581 N.W.2d 391 (Minn.App. 1998,
rev. denied); Blue Earth County Pork Producers, Inc. v. County of
Blue Earth, 558 N.W.2d 25 (Minn.App. 1997, rev. denied) and Board
of Supervisors of Crooks Township v. ValAdCo., 504 N.W.2d 267 (Minn.App.
1993, rev. denied) which all dealt with alleged preemption by occupation
of the field by a state agency, the Minnesota Pollution Control
Agency. [308] 2000 WL 821467
(Mo.)(en banc). [309] 727 N.E.2d 742
(Ind.App. 2000). [310] Id. at 754 quoting
from Schlehuser v. City of Seymour, 674 N.E.2d 1009 (Ind.App. 1996). [311] 609 N.W.2d 278
(Minn.App. 2000). See also Cadiz Land Co., Inc.
v. Rail Cycle, L.P., 83 Cal.App.4th 74, 99 Cal.Rptr.2d
378 (2000) where the court found that a CUP for a landfill was consistent
with the general plan, but which found that CEQA had not been complied
with because the impact on the aquifer had not been adequately analyzed. [312] Minn.Stat. § 15.99. [313] 2000 WL 1133079
(Fla.App.). [314] See Florida Power
& Light Co. v. City of Dania, 761 So.2d 1089 (Fla. 2000) at
§ 1.07[1][a][ii] infra.
[315] 2000 WL 968535
(Ala.Civ.App.) [316] 761 So.2d 1089
(Fla. 2000). [317] This shifting
of the burden of producing evidence was first set forth in Irvine
v. Duval County Planning Commission, 495 So.2d 167 (Fla. 1986). [318] See City of Deerfield
Beach v. Vaillant, 419 So.2d 624. (Fla. 1982). [319] 2000 ME 106, 752
A.2d 183. [320] 2000 WL 1036233
(Ga.) [321] A dissenting justice
took substantial umbrage at the trampling on the property rights
of BP Oil and the view that CUPs give the city unbridled discretion
to deny them. (Carley, J. dissenting). Id. at *2. [322] 83 Cal.App.4th
139, 98 Cal.Rptr.2d 924 (2000). [323] 2000 WL 944120
(Ga.App.) [324] See Cannon v.
Coweta County, 260 Ga. 56, 389 S.E.2d 329 (1990). [325] 610 N.W.2d 697
(Minn.App. 2000). [326] 9 Neb.App. 223, 609 N.W.2d 706 (2000). [327] Barrett v. City
of Bellevue, 242 Neb. 548, 495 N.W.2d 646 (1993), interpreting Neb.Rev.Stat.
§ 19-910. [328] 81 Cal.App.4th
880, 96 Cal.Rptr.2d 538 (2000). [329] Cal.Gov’t Code
§ 65906. [330] 96 Cal.Rptr.2d
at 540 citing Topanga Association for a Scenic Community v. County
of Los Angeles, 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12 (1974). [331] 270 A.D.2d 484,
705 N.Y.S.2d 611 (2000). [332] The earlier cases
are Baker v. Browlie, 248 A.D.2d 527, 670 N.Y.S.2d 216 (19??) and
Baker v. Edwards, 221 A.D.2d 436, 634 N.Y.S.2d 383 (19??). [333] 705 N.Y.S.2d at
615. [334] 763 So.2d 17 (La.App.
2000, writ denied). [335] 312 Ill.App.3d
182, 244 Ill.Dec. 469, 726 N.E.2d 65 (2000). [336] 162 N.J. 418,
744 A.2d 1169 (2000). [337] For other cases
applying this doctrine see Garibaldi v. Zoning Board of Appeals,
163 Conn. 235, 303 A.2d 743 (1972); Halifax Area Council on Alcoholism
v. City of Daytona Beach, 385 So.2d 184 (Fla.App. 1980); Mechem
v. City of Santa Fe, 96 N.M. 668, 634 P.2d 690 (1981); Nuckles v.
Allen, 250 S.C. 123, 156 S.E.2d 633 (1967). [338] 2000 SD 119, 616
N.W.2d 483. [339] Cole v. Board
of Adjustment, 1999 SD 54, 592 S.W.2d 175. [340] There was a dissenting
opinion that would have applied the more traditional scope of judicial
review to variance decisions that would allow for reversal if the
decision was arbitrary, capricious or an abuse of discretion. 616 N.W.2d at 489. (Sabers, J. dissenting). [341] 99 F.Supp.2d 1273
(W.D.Wash. 2000). [342] See Buechel v.
State Department of Ecology, 125 Wash.2d 196, 884 P.2d 910 (199$). [343] 163 N.J. 446,
750 A.2d 57 (2000). [344] 49 U.S.C. § 10102. [345] 2000 WL 1228657
(S.D.Fla.). [346] 18 S.W.3d 107
(Mo.App. 2000, trans. denied) [347] Mo.Rev.Stat. §
305.200(3). [348] City of St. Louis
v. City of Bridgeton, 705 S.W.2d 524 (Mo.App. 1985) held that Bridgeton
could not prevent St. Louis from building a parking garage on land
owned by St. Louis within the corporate limits of Bridgeton in order
to support the airport operations. [349] 239 Mich.App.
563, 609 N.W.2d 593 (2000). [350] 752 A.2d 13 (Vt.
2000). [351] See also
City of Cleveland v. City of Brook Park, 893 F.Supp. 742 (N.D.Ohio
1995). [352] 2000 WL 1220602
(S.D.N.Y.) [353] See City of Newark
v. New Jersey, 262 U.S. 192 (1923); Hunter v. City of Pittsburgh,
207 U.S. 161 (1907). [354] In accord,
South Macomb Disposal Authority v. Township of Washington, 790 F.2d
500 (6th Cir. 1986). [355] There is a split
of authority on this issue. The
Fifth, Appling County v. Municipal Elec. Authority, 621 F.2d 1301
(5th Cir.), cert.
denied, 449 U.S. 1015 (1980), Seventh, Rockford Board
of Education v. Illinois State Board of Education, 150 F.3d 686
(7th Cir. 1988) and the Eleventh, U.S. v. Alabama, 791
F.2d 1450 (11th Cir. 1986), cert. denied,
479 U.S.1085 (1987) deny municipalities the right to sue while the
Sixth, South Macomb Disposal Authority, note 340 supra allow them to sue. [356] 2000 WL 1035395
(Tex.App.—Corpus Christi). [357] Tex.Rev.Civ.Stat.
art. 5221f. [358] The court distinguished
Texas Manufactured Housing Associates, Inc. v. City of Nederland,
101 F.3d 1095 (5th Cir. 1996) because the Nederland’s
definition encompassed both mobile homes and manufactured homes. [359] 2000 CJ CAR 2971,
3 P.3d 30. [360] Colo.Rev.Stat.
§ 38-12-301. [361] The dissenting
justices would have found that the town’s regulatory efforts were
not covered by the statutory prohibition against rent control, in
large part because of the statute’s legislative history. 3 P.3d
at 41. (Mullarkey, C.J. dissenting). [362] 272 Ga. 427, 531
S.E.2d 350 (2000). [363] 730 N.E.2d 818
(Ind.App. 2000). [364] 2000 ME 82, 750
A.2d 566. [365] 99 Wash.App. 194,
992 P.2d 534 (2000). [366] 758 A.2d 285 (Pa.Commw.
2000). [367] 334 N.J.Super.
109, 756 A.2d 1074 (2000). In
a related case the developer brought an action seeking a specific
builder’s remedy against the township after a consent decree had
been entered into several years before relating to the number and
location of affordable housing units that had to be built. The court
found that the consent decrees had not expired by the passage of
time and were enforceable. Toll
Brothers, Inc. v. Township of West Windsor, 334 N.J.Super. 77, 756
A.2d 1056 (2000). [368] 109 F.Supp.2d
526 (N.D.Tex. 2000). [369] See Huntington
Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff’d,
488 U.S. 15 (1988); U.S. v. City of Black Jack, 372 F.Supp. 319
(E.D.Mo.), rev’d on other
grounds, 508 F.2d 1179 (8th Cir. 1974), cert. denied,
422 U.S. 1042 (1975). [370] 136 N.C.App. 272,
523 S.E.2d 743 (2000). [371] N.C.Gen.Stat.
§ 160A-383.19(c . [372] 4 P.3d 123 (Wash.
2000). [373] Rev.Code Wash.
§ 36.70C.130(1). [374] The county also
argued that the plaintiff had not exhausted its administrative remedies
under the GMA, but the court did not feel that a rezoning decision
made in the absence of a comprehensive plan triggered the administrative
review requirement. 4 P.3d at 126-27. [375] A dissenting justice
felt that the majority’s interpretation defeated the legislative
purposes underlying the IUGA determination by allowing urban development
outside of those areas unless the rezoning decision was attacked
within the very short 21 day period. 4 P.3d at 129 (Talmadge, J.
dissenting). [376] Falcke v. Douglas
County, 3 P.3d 661 (Nev. 2000). [377] 58 Conn.App. 29,
750 A.2d 1152 (2000). [378] Conn.Gen.L. §
22a-104(e). [379] 2000 WL 775571
(Fla.App.). See Board of County Commissioners of Clay County v.
Qualls, 2000 WL 1230216 (Fla.App.) where the court applies the fairly
debatable scope of judicial review to a denial of a set of rezoning
and comprehensive plan amendments made by a landowner. [380] 332 N.J.Super.
223, 753 A.2d 162 (2000). [381] Willoughby v.
Planning Board of Township of Deptford, 326 N.J.Super. 158, 740
A.2d 1097 (1999). [382] 759 So.2d 1221
(Miss. 2000). [383] See Walker v.
City of Biloxi, 229 Miss. 890, 92 So.2d 227 (1957). [384] 759 So.2d at 1229
quoting City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660 (1962). [385] 2000 SD 62, 610
N.W.2d 90. [386] Schrank v. Pennington
County Board of Supervisors, 1998 SD 108, 584 N.W.2d 680. [387] 2000 WL 462627
(Ky.App.) [388] The court relied
in part on Texas Manufactured Housing Association v. City of Nederland,
101 F.3d 1095 (5th Cir. 1996) and City of Brookside Village
v. Comeau, 633 S.W.2d 790 (Tex. 1982). [389] 2000 Utah Ct.App.
31, 997 P.2d 321. [390] Compare this approach
with the Ohio Supreme Court’s approach in Shemo v. Mayfield Heights,
88 OhioSt.3d 7, 722 N.E.2d 1018 (2000) discussed at § 1.03[1][g]
supra.
[391] See Springville
Citizens for a Better Community v. City of Springville, 1999 UT
25, 979 P.2d 332. This point
was critical to the dissenting judge who believed that between the
statutory codification of the arbitrary, capricious and illegal
standard and the Springville case, all zoning
decisions were to be judged using the substantial evidence test.
997 P.2d at 329-331 (Jackson, J. dissenting). [392] 311 Ill.App.3d
332, 243 Ill.Dec. 668, 723 N.E.2d 1269 (2000). [393] La Salle National
Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65 (1957). [394] 756 So.2d 835
(Miss.App. 2000). [395] The court suggests
that several other states adhere, although to a lesser extent, to
the change/mistake rule. It
lists Colorado, Kentucky, Michigan, New Mexico, North Carolina and
Oregon. See 1 Anderson’s American Law of Zoning § 5.11
(4th ed. 1996). I
question Oregon’s inclusion in this list given their now unique
form of state mandated planning and zoning directives. [396] See Concerned
Citizens to Protect the Isles and Point, Inc. v. Mississippi Gaming
Commission, 735 So.2d 368 (Miss. 1999). [397] 723 N.E.2d 457
(Ind.App. 2000). [398] N.C. § 36-7-4-223(b). [399] 2000 WL 1285472
(Or.App.) [400] See e.g., Opus
Development Corp. v. City of Eugene, 28 Or LUBA 670 (1995) and Volny
v. City of Bend,, --- Or LUBA ---, aff’d, 168 Or.App. 516, 4 P.3d 768 (2000). [401] 2000 WL 1146974
(Miss.App.). [402] 9 S.W.3d 357 (Tex.App.—Houston
[14th Dist.] 1999). [403] 2000 WL 963479
(Pa.Commw.). [404] See Keystone Outdoor
Advertising v. Department of Transportation, 687 A.2d 47 (Pa.Commw.
1996), app.
denied, 548 Pa. 675, 698 A.2d 587 (1997). [405] See Tantlinger
v. Zoning Hearing Board, 103 Pa.Commw. 73, 519 A.2d 1071 (1987). [406] 530 S.E.2d 338
(N.C.App. 2000). [407] 2000 WL 728831
(Fla.App.). [408] 611 N.W.2d 16
(Minn. 2000). [409] 48 Mass.App.Ct.
281, 730 N.E.2d 311 (2000). [410] 17 S.W.3d 414
(Tex.App.—Houston [1st Dist.] 2000). [411] Tex.Local Gov’t
Code § 211.010(a). [412] See Austin Neighborhoods
Council, Inc. v. Board of Adjustment, 644 S.W.2d 560 (Tex.App.—Austin
1982, writ ref’d n.r.e.); Texans to Save the Capitol, Inc. v. Board
of Adjustment, 647 S.W.2d 773 (Tex.App.—Austin 1983), writ ref’d
n.r.e.). [413] 709 N.Y.S.2d 613
(App.Div. 2000). [414] See Kam Hampton
I Realty Corp. v. Board of Zoning Appeals, 710 N.Y.S.2d 915 (App.Div.
2000), where the court disallowed several proffered affidavits since
they were not in the administrative record and upheld the decision
of the ZBA. [415] 753 A.2d 984 (D.C.Ct.App.
2000). [416] 749 A.2d 1258
(D.C.Ct.App. 2000). [417] 2000 WL 1286242
(Ariz.App.).
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