The City and County of San Francisco (“the City”) moved to dismiss the First Amended Complaint (“FAC”) of Plaintiff California–Nevada Annual Conference of the Methodist Church (“the Conference”), in which the Conference alleged the following three causes of action: (1) violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); (2) violation of the First Amendment; and (3) regulatory takings.

In 2004, the Conference agreed to sell the property to Pacific Polk Properties, LLC (“Pacific Polk”) for the construction of market rate condominiums. However, it was not until almost ten years after the Conference first sought the demolition permit that the Department of Building Inspection issued a demolition permit allowing Pacific Polk to demolish the structure and a building permit allowing Pacific Polk to build its condominium project.

The Conference claimed that its use of the property was burdened substantially by the City’s ten year delay in issuing a demolition permit, which prevented it from converting the property into liquid assets that it could then use to further its religious mission. The court disagreed, stating that the sale of property for the construction of market rate condominiums, even if undertaken by the Conference in order to fund its religious mission, do not constitute “religious exercise” protected by RLUIPA. Unlike the Conference’s RLUIPA claim, the Conference’s First Amendment claim was based on a broader notion of unequal treatment; the City embroiled the Conference in bureaucratic proceedings, many of which were unnecessary, in an effort to prevent the Conference engaging in religious exercise. The Conference alleged that at a Planning Commission meeting in December 2012, the Commissioners expressed “hostility” and “anger” toward the Conference and Pacific Polk for having brought the instant lawsuit and for challenging the earlier landmarking effort. According to the Conference, it was evident that the community negotiation process had been used by the Commissioners to “stall the process and punish the Conference for exercise of its constitutional and statutory rights.” Therefore, construing the FAC in the light most favorable to the Conference and taking as true all factual allegations therein, the court denied the City’s motion to dismiss the First Amendment claim.

Finally, the Conference asserted that a continuing ten year course of conduct and including numerous refusals to grant a demolition permit resulted in a taking. The court found that the Conference’s “course of conduct” theory, as pleaded in its FAC and as clarified in its briefing, does not sufficiently allege a cognizable legal theory for its regulatory takings cause. As such, the court granted the Conference leave to amend its taking complaint.

California-Nevada Annual Conference of the Methodist Church v City and County of San Francisco, 2014 WL 6665915 (ND Ca. 11/24/2014)

The opinion can be accessed at:

The Newtown Township Board of Supervisors enacted a Planned Residential Development Ordinance (“PRD Ordinance”) pursuant to state statute. Newtown Square East, L.P. (“NSE”), who owned a two-acre tract of land adjacent to BPG’s tract, filed a challenge to the validity of the PRD Ordinance with the Newtown Township Zoning Hearing Board (“Zoning Board”), and appealed the Board’s approval of BPG’s Tentative PRD Plan with the court of common pleas, which also affirmed, as did the Commonwealth Court. This appeal was then brought by landowner NSE challenging the validity of that ordinance and to the approval of a Tentative PRD Plan related to it.

NSE asserted that the Commonwealth Court erred, and maintains that the PRD Ordinance is invalid because it permits uses to “float” between the tentative plan and final plan stages, allegedly in violation of the MPC. To support this claim, NSE emphasized two provisions of the PRD Ordinance, to wit, §§ 402.4(H)(6) and (H)(7), which provide, respectively, that the location of proposed local streets “may be modified” and that the locations and configuration of buildings “may change” between the time of Tentative Plan approval and Final Plan submission or approval. The court found that the use of the permissive “may” in § 10711(c) of the MPC demonstrates the General Assembly’s intention to grant discretion to local authorities in assessing whether “variations” from an approved tentative plan should warrant refusal to grant approval of a final plan. It held that placement of such discretion with local authorities is consistent with “a prime objective” of Article VII of the MPC, to wit, “flexibility of development.”

NSE next claimed that the Commonwealth Court erred in holding that BPG’s Tentative Plan complies with the PRD Ordinance and the MPC because the Tentative Plan allegedly failed to identify the use of proposed buildings, the Tentative Plan should not have been approved. However, because NSE never raised before the Township Board a claim that “commercial” was an invalid use designation, which was not enumerated, defined, or permitted under the PRD Ordinance, this claim was waived. The court failed to see how NSE’s due process rights were implicated by BPG’s tentative plan designation of several possible uses permitted as of right for buildings proposed on its own property, and that requiring contracts at this early stage of development is inconsistent with “the practical reality involved in non-residential uses that they may change during the course of the approval process and even thereafter” due to factors beyond the control of a landowner/developer. Accordingly the court found no merit in NSE’s claims, and affirmed the lower courts.

Newtown Square East, L.P. v Township of Newtown, 101 A. 3d 37 (PA. 9/24/2014)

The opinion can be accessed at:

Posted by: Patricia Salkin | December 18, 2014

NY to Ban Hydrofracking

Citing potential health risks, the commissioners of the Department of Environmental Conservation and Health convince the Governor to ban fracking in New York.

Posted by: Patricia Salkin | December 15, 2014

Fed. Dist. Court in CT Dismisses Class of One Equal Protection Claim

Plaintiff Margaret R. Pappas, owner of a parcel of land in the Town of Enfield, brought this action against the Town of Enfield, Town of Enfield Planning and Zoning Commission (“Enfield’s PZC” or “PZC”), and four Commissioners, Anthony DiPace, Jeffrey D. Cooper, James A. Hickey, Jr., and Karen A. Weseliza, in their official and individual capacities. Pappas alleged that a subdivision application she submitted to Enfield’s PZC was improperly denied and violated due process, equal protection, and amounted to a taking of property without just compensation, enforceable under 42 U.S.C. § 1983. The Connecticut Superior Court ruled in Pappas’ favor, reversing the PZC’s decision, holding that the denial of Pappas’ subdivision application was “unreasonable,” “arbitrary,” an “abuse of discretion,” and “illegal” under Connecticut Law. Following that ruling, Enfield’s PZC granted plaintiff’s subdivision application as proposed, and Pappas now moved for money damages in this action.

In order to ultimately prevail on a “class of one” equal protection claim, the plaintiff bears the burden of showing an extremely high degree of similarity between themselves and the persons to which they compare themselves. The court discussed that this standard requires that each comparator to have an “extreme high degree of similarity” or be “prima facie identical” to the plaintiff’s application in order to be considered similarly situated, so that no rational person would deem the plaintiff’s application and comparators different. Furthermore, temporal disparity may undermine a potential similarly situated comparator, because nondiscriminatory reasons, such as policy change or a intervening event, may explain the difference in treatment over time. Because the court found the plaintiff’s “cherry picking“ of comparators based on only certain aspects to be insufficient, it held that the plaintiff failed to prove the “similarly situated” prong of her equal protection claim, and the defendants were entitled to judgment as matter of law.

As to the rational basis prong, the court stated that as long as one of the reasons advanced by the zoning board for its decisions is deemed a legitimate rational basis, the plaintiff does not have a viable equal protection claim. Here, Enfield’s PZC gave multiple reasons for its denial of Pappas’ application, based upon professional judgment, personal observations, and public commentary. Furthermore, the commissioners made their determination after extensive fact finding and deliberation, holding as many as four public hearings. Accordingly, the court found the plaintiff’s claim failed the rational basis prong as well, and granted the defendant’s motion for summary judgment.

Pappas v Town of Enfield, 18 F. Supp. 3d 164 (D. Conn. 5/7/2014)
The opinion can be accessed at:

Plaintiff Arrigoni Enterprises, LLC sought a variance from defendants the Town of Durham, Connecticut, the Durham Planing & Zoning Commission, and the Durham Zoning Board of Appeals to excavate, crush, and remove rock for the development of three commercial buildings. The Town denied its application on the basis of a local zoning regulation. Arrigoni’s post-trial motion seeking declaratory judgment that the zoning regulation be repealed for vagueness became the basis for this case. The key provision of the regulation at issue is which states, “No washing, crushing or other forms of processing earth products shall be conducted upon the premises unless located within a heavy industrial (HID) zone and then if must not be located within 100′ of any property or street line.”

The court first discussed that two independent grounds exist for finding a statute impermissibly vague. The first arises if the statute fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. The second arises when the statute authorizes or even encourages arbitrary and discriminatory enforcement. In its analysis of the regulation the court found that it was absolutely clear in its prohibition of crushing rocks and explicitly said that activity was not allowed. Accordingly, there was “no wiggle room here and a person of ordinary intelligence reading the regulation has adequate notice of this prohibition.” Furthermore, as a general rule, courts in the Second Circuit disfavor facial vagueness challenges that do not implicate the First Amendment. The Circuit imposes a strict standard stating that facial vagueness challenges may be presented only when no set of circumstances exists under which the law would be valid. Here, Arrigoni failed to argue or demonstrate that there was no set of circumstances under which the regulation may be valid. Accordingly, plaintiff’s motion for declaratory judgment was denied.

Arrigoni Enterprises, LLC v Town of Durham, 18 F. Supp. 3d 188 (D. Conn. 5/8/2014)

In protracted litigation, Plaintiffs John and Jennifer LaVertu alleged that defendant Town of Huntington retaliated against them by ticketing them for violating the Town’s building code after plaintiffs posted a YouTube video criticizing defendant’s proposed Avalon Bay housing project. By Report and Recommendation Magistrate Judge Wall recommended that defendant’s motion be granted as to plaintiffs’ First Amendment and Due Process claims, denied as to their Monell and Equal Protection claims, and that plaintiffs be granted leave to amend their complaint.

For the First Amendment Claim, the court found that the amended claim was not futile. The Plaintiffs sufficiently alleges that they engaged in protected free speech when they criticized various Town officials by means of a YouTube video, and adequately pled that the adverse conduct they experienced in terms of receiving various violations on their home from the Town was motivated by retaliatory intent: the Town’s revocation of the Letter–in–Lieu and Declaration of Delinquency. As to the due process claim, because Plaintiffs’ failed to properly allege facts sufficient to confer standing was after the Court’s prior analysis of the issue, it was found to be “repeated” within the meaning of Fed.R.Civ.P. 15 and the denial of leave to replead was found to be with prejudice. Plaintiff’s motion to amend the complaint was therefore granted in part and denied in part.

LaVertu v Town of Huntington, 2014 WL 6682262 (EDNY 11/24/2014)

Posted by: Patricia Salkin | December 12, 2014

AL Supreme Court Upholds City’s Decision Not to Rezone Property

The Shelby Land Partners, LLC and Alabaster Land Company, LLC, each owned a 50% undivided interest in a 19.4–acre parcel of undeveloped real property located within the municipal limits of the City of Alabaster. In 2004, at the request of Shelby Land, the property was zoned as a “community business district,” permitting only commercial uses. In 2009, Shelby Land petitioned the City to rezone the land to permit multifamily residential use in order to develop a low-income apartment complex for senior citizens on the property. The City Council denied Shelby Land’s rezoning application. Shelby Land and Alabaster Land then brought this action seeking relief from the denial of the rezoning request. The trial court entered a summary judgment in favor of Shelby Land and Alabaster Land ordering the City and the City Council to rezone the land to permit multifamily residential development, and the City and the members of the City Council appealed.

Although Shelby and Alabaster Land urged the court to consider whether the City’s denial of their rezoning request was “fairly debatable”, the court noted that when reviewing a city’s denial of rezoning petition, it must determine whether the existing zoning classification is substantively valid and bears a reasonable relationship to the promotion of the health, safety, morals, or general welfare of the community before turning to the “fairly debatable” analysis. The mere fact that a proposed new zoning classification is reasonable does not itself invalidate a likewise reasonable existing zoning classification. Because the purposes for which the B–3 zoning classification was adopted in 2004 remained substantially related to the health, safety, morals, and general welfare of the community, the court concluded that the trial court erred in holding the current B–3 zoning of the property had no relationship to the health, safety, morals, or general welfare of the City.

Accordingly, the court held it is not the province of the court to substitute its judgment for that of a legislative body vested with the power to make such decisions. The trial court’s ruling against the City was therefore reversed.

City of Alabaster v Shelby Land Partners, LLC, 148 So.3d 697 (AL 1/24/2014)

The opinion can be accessed at:

Editor’s Note: The Following is reposted with permission from the RLUIPA Defense Blog:

The Church of Our Savior (“Church”) was founded in 2006 and is the only Anglican church in Jacksonville Beach and other surrounding seaside communities. It leases space at the Beaches Museum Chapel in Jacksonville Beach, a historic chapel, as well as two adjacent buildings owned by the Beaches Area Historical Society (“Chapel Property”). The lease allows the Church to use the Chapel Property for only 4 hours per week on Sunday mornings for worship services, nursery, and Sunday school. According to the Church, the time and space limitations on the Chapel Property “constrain its ability to grow and to fully exercise its religion by performing its sacraments and worshipping together in one service.” To better exercise its religion, the Church began to look for new property that would satisfy three main “criteria”: (a) affordability (the Church’s budget was $300,000 to $500,000); (b) visibility (the Church sought an “attractive” church on a main thoroughfare that would be recognizable as a church to passersby); and (c) accessibility (the Church wanted any new property to be centrally located in the Jacksonville Beach, Neptune Beach, Atlantic Beach, and Ponte Vedra Beach areas, and on the east side of the intracoastal waterway).

The Church found vacant land for sale along Beach Boulevard (“Property”), consisting of between 1.34 and 1.7 acres, that it believed would meet its 3 criteria. The Property, located in the “Residential, single family (RS-1)” zone, is surrounded by a 6-lane highway, commercial property, and a small neighborhood of houses. The RS-1 zone allowed “[s]ingle family dwelling,” “[p]ublic and private parks, playgrounds and recreational facilities,” and “Type I home occupation” as of right. “[R]eligious organizations” and “[p]ublic and private elementary and secondary schools and technical institutes, excluding trades schools and vocational schools” were allowed as conditional uses. According to the comprehensive plan, “future institutional uses (schools, churches, government buildings, fraternal groups, cemeteries, and health and public safety facilities) . . . shall be located outside of areas proposed for low-density residential use . . . .”

On March 8, 2013, the Church applied to the City’s Planning and Development Department (“Department”) for a conditional permit for its proposed religious use. Although, the City Planner recommended that the application be approved, the Department voted to deny the Church’s proposal. During the public hearing, at which neighborhood residents expressed their opposition, Department members expressed concern over (1) the proposed “Children’s Play Area;” (2) the close proximity of the project to nearby homes; (3) the project’s potential adverse impact on property values; (4) its consistency with the neighborhood; and (5) the plan for the main structure.

Four months later, the Church submitted a second CUP application, which re-designated the play area on the south parcel as a “public park.” The City Planner again recommended approval, but the Department again denied the proposal, this time on three grounds: (1) based on testimony from neighborhood residents that the proposal is inconsistent with the character of the immediate vicinity; (2) the proposal is inconsistent with the comprehensive plan, which requires that churches be located outside of low-density residential areas; and (3) changing the designation of the children’s play area to a public park would violate the zoning code’s requirement that the building not exceed the 35% lot coverage.

Thereafter, the Church filed suit and alleged violations of RLUIPA’s equal terms, substantial burden, and unreasonable limits provisions. The Middle District of Florida found the City violated RLUIPA’s equal terms provision (as applied), but rejected the remaining claims.

The Church claimed two schools were equal terms comparators. The Court agreed with its assertion in one instance, but not the other. First, the Church alleged that the City’s 1995 approval of the Duval County School Board’s proposal to replace an existing 60,000 square foot facility with a new 90,000 square foot facility on a twenty-acre lot in an RS-1 zone was evidence of unequal treatment. The Court found that the fact that both uses qualify as “assembly” and/or “institution” under RLUIPA was not enough for it to be deemed a similarly situated comparator, since “the Duval County School Board’s CUP application [was] too dissimilar in size, intensity of use, location, fit with the surrounding neighborhood, and public support . . . .”

Discovery Montessori School, however, was found to be a similarly situated comparator. In 1994, the school obtained CUP approval to build a private school on a 1.9 acre parcel in the City’s RS-1 zone. In 2014, the school obtained another CUP to expand the school to two residential lots and build an 18,000 square-foot facility to accommodate up to 175 more students. The Court found this school to be a similarly situated comparator because: (1) both uses were similarly small and relatively low-impact; (2) the surrounding properties were not strictly low-density, single family homes; and (3) both applicants faced objections by neighbors and questions from Department members regarding “traffic, fit with the neighborhood, and the impact on property values.” While the Court noted that “remoteness in time” might be an important factor in some cases, “considering the potential for the sensibilities of the community and the policies of the local government to change,” it was not applicable in this case because the City had approved a 2014 CUP for Discovery Montessori School.

The City failed to carry its burden of establishing that its compelling interest (preserving the character and safety of its residential zones) was narrowly tailored, since the Department flatly rejected the CUP.

The Church claimed the City’s zoning code violated the equal terms provision on its face because, at the time of the CUP applications, “religious organizations” were conditional uses, but “[p]ublic and private parks, playgrounds and recreational facilities” were permitted as of right. On September 15, 2014, two days before trial began, the City amended the zoning code to reclassify parks, playgrounds, and recreational facilities as conditional uses. The Court found the City’s amendment rendered moot the facial challenge. Although the Court acknowledged such a claim may not be moot if there was evidence that the City would repeat its allegedly wrongful conduct in the future, there was no such evidence in this case.

The Church argued that the City’s denial of its CUP applications substantially burdened its religious exercise because (1) there is no other property that meets the Church’s three criteria; and (2) it is forced to use the Chapel Property where it cannot fully practice its religion. The Court disagreed. First, the Court found: “that other suitable land is not available in Jacksonville Beach at a price the Church can afford is a burden imposed by the market, not one created by the City denying the Church a CUP.” Second, the Court concluded that although the Chapel Property “is less convenient and less effective than the Church’s proposal would be” as far as exercising freely its religion, “a substantial burden must place more than an inconvenience on religious exercise.”

Lastly, the Church alleged the City’s treatment, combined with the Church’s limited budget, unreasonably restricted its ability to express its religious beliefs. The Court also found against the Church on this claim, noting that the focus of this provision “is not on the treatment of a particular landowner, but religious entities in general.” The Court also noted the existence of 19 churches currently located in the City and “that the great majority of land in the City remains open for use by religious organizations either by right or conditional use . . . .”

Church of Our Savior v. City of Jacksonville, 2014 WL 6685484 (M.D. FL 11/25/2014).

The opinion can be accessed at:

Posted by: Patricia Salkin | December 10, 2014

NJ Township Settles RLUIPA Lawsuit for almost $8M

Editors note: The following is reposted with permission from the RLUIPA Defense Blog:

The Township of Bridgewater, New Jersey has agreed to pay nearly $8 million to settle a lawsuit over claims that its denial of Al Falah Center’s proposal to construct a mosque violated the Religious Land Use & Institutionalized Persons Act (RLUIPA). The Center, which sought to use a former hotel on Mountain Top Road as a mosque, has agreed to re-locate to a 15-acre site between Routes 202-206 and Route 287. The Township will pay $2.75 million for the 15-acre site and its insurance carrier will cover $5 million for alleged damages, costs, and attorneys’ fees. The $7.75 million is believed to be the most ever paid to settle a RLUIPA suit.

The lawsuit began in 2010 after the Township denied the Center’s proposal to use the former hotel property as a mosque. The proposal allegedly was met with “anti-Muslim prejudice within the community, including internet postings and e-mail correspondence.” In response to a January 17, 2011 article describing the planned mosque, one reader commented: “Just another place for terrorists to assemble under the guise of freedom of religion.” The Center alleged that after it had submitted its application, the Township quickly enacted a new zoning ordinance (Ordinance 11-03) to thwart its proposal. The new ordinance required that “houses of worship” in residential zones have “principal access on a State Highway or County road,” or certain other major roads. The Township used the new ordinance to deny the mosque proposal, since the Mountain Top Road property, which is in a residential zone, lacks principal access to any of these roads. The Township claimed the new ordinance was meant to protect residential neighborhoods from traffic issues. The Center asserted the ordinance was pretextual and that behind it all was the intent to stop the mosque from being built. The District Court agreed and, in 2013, granted a preliminary injunction after finding the Center was likely to prevail on its claim that the Township’s actions substantially burdened the Muslim group’s religious exercise.

The Center’s settlement follows another notable RLUIPA settlement involving a mosque – this past September, the City of Norwalk, Connecticut agreed to pay $2 million to Al Madany Islamic Center of Norwalk for Al Madany to find a new location for a house of worship. It also surpasses the $6.5 million paid by the Town of Greenburgh, New York to settle a RLUIPA suit brought by Fortress Bible Church.

Marguerite Komondy, now deceased, commenced this action against the Town of Chester and its zoning officials to redress their alleged infringement of her federal and state constitutional rights with respect to residential property she owned in Chester, Connecticut. On March 5, 2005, Marguerite Komondy’s antique historical home was destroyed by fire, and because the structural damage from the fire was so extensive, the remainder of the dwelling was demolished in the interest of safety. Mrs. Komondy then sought permission from the Town of Chester, pursuant to Chester Zoning Regulation § 113B.5, to remain on her property in a temporary mobile home during the reconstruction of her permanent home. She received a permit to install a mobile home on the property and to live in that “temporary dwelling” for a maximum period of six months. Upon expiration of the six-month period, Mrs. Komondy applied for an extension of the permit, which was was denied. She then filed an appeal of the permit denial and an application for a variance from § 113B.5, but the Chester ZBA denied both applications. The Connecticut Superior Court, and subsequently in the Connecticut Appellate Court, both dismissed her complaints as well. On February 2, 2012, Mrs. Komondy received a letter from Chester’s legal counsel, informing her that the Town would “remove the trailer on her property … if it was not removed by her” and “the costs and expenses of that removal would be charged against her, resulting in a lien on the subject real property.” The Town agreed not to take any action to remove her mobile home during the pendency of this action.

Plaintiff Christopher Komondy (Marguerite’s husband) first asserted that Defendants’ conduct in failing to allow Marguerite Komondy to remain in a temporary dwelling on her property while her home was rebuilt constituted an unlawful taking under the Fifth Amendment and Fourteenth Amendments. In the case at bar, Plaintiff has failed to plead that he has unsuccessfully utilized Connecticut’s state procedure for procuring just compensation for the alleged taking of the property at 29 Liberty Street. This District therefore applied the binding ruling of Williamson to dismiss the “takings” claim as unripe because the second prong of ripeness had not been met, since the plaintiff’s claim was based on a regulatory taking and the plaintiff failed to utilize available state procedures to procure just compensation for that taking.

Komondy v Gioco, 2014 WL 6453892 (D. CT 11/18/2014)

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