In 2005, the County began the process of revising its comprehensive plan and among the issues examined were adult-oriented businesses (AOBs). In March 2005, appellant entered into a contract to purchase the property and applied for a special use exception from the County to operate the AOB. The county began to prepare a moratorium imposing a ban on approval of applications, site plans, or permits for AOBs for six months, restricting the available locations for AOBs, and required particular setback requirements and advertising restrictions. The County’s attorney reflected that in drafting the moratorium, First Amendment factors were a consideration and that “a moratorium on an adult oriented business… is particularly difficult to fashion because it could be construed as a prior restraint on free speech which is clearly unconstitutional.” The County contended that the moratorium was enacted solely to give the County more time to consider proper permanent zoning regulations for AOBs and not to prevent appellant from opening the AOB as appellant contends. The Director of Planning and Codes Administration for the County wrote the appellant a letter notifying him of the moratorium and that the special use exception application could not be processed because the moratorium. A few months later an ordinance was enacted providing that an AOB can only be located in the I-2 (light industrial) zoning district and providing fairly strict setback requirements for AOBs. The goal of the ordinance was to avoid adverse secondary effects of AOBs in certain areas.

Appellant filed a complaint in U.S. District Court alleging a violation of the First Amendment. The district court granted summary judgment to the County, holding that the enactments were content-neutral time, place, and manner regulations, served a substantial government interest, and allowed for reasonable alternative avenues of communication.

On appeal, the Fourth Circuit affirmed, noting that a statute may treat AOBs differently from other entities so long as the ordinance is not aimed at the content of the AOBs but instead enacted to limit their harmful secondary effects. The Court also noted that a facially neutral ordinance that does not ban adult theaters altogether is properly analyzed as a time, place, and manner regulation which is not subject to strict scrutiny and is acceptable so long as it is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication. An ordinance may be subject to strict scrutiny if, regardless of its facial neutrality, the predominant intent of law-makers in enacting the regulation was to limit expression. The court held that it was evident from the language of the enactments and the fact that AOBs are not banned under the enactments, that the predominant intent of the County was not primarily to suppress speech and that the enactments were properly reviewed as content-neutral and are to be analyzed under an intermediate scrutiny standard. The Court then found that the zoning scheme was designed to serve a substantial governmental interest and that it allows for reasonable alternative avenues of communication.  

McDoogal’s East, Incorporated v. County Commissioners of Caroline County, 2009 WL 2705216 (C.A. 4^th Cir. 8/28/2009).

The opinion can be accessed at: http://pacer.ca4.uscourts.gov/opinion.pdf/071665.U.pdf

The following summary appears in the Religious Freedom in Focus Newsletter (Fall 2009, vol. 40) prepared by the U.S. Dept. of Justice, Civil Rights Division:

The United States, in a brief filed August 7, 2009 in the United States Court of Appeals for the Ninth Circuit, argued that the City of Yuma, Arizona violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), by excluding religious organizations from its “Old Town” district. The United States’ friend-of-the-court brief argued that the city’s exclusion of religious organizations from the district, while permitting various secular membership organizations, violated the equal terms provision of RLUIPA.

The city of Yuma, Arizona has an “Old Town District” designed “to establish and support a mixture of commercial, cultural, governmental, and residential uses that will help to ensure a lively pedestrian-oriented district.” The district permits, as of right, secular organizations such as social service agencies, fraternal organizations (including a Masonic Temple), trade associations, labor unions, and other membership organizations, though it specifies that religious organizations are not permitted as of right. Religious organizations are required instead to apply for a conditional use permit.

A church in Yuma, Centro Familiar Cristiano Buenas Nuevas, was outgrowing its leased facilities, and purchased a building on South Main Street, in the Old Town District. The church applied for a conditional use permit with the City’s Planning and Zoning Commission, which the commission denied on the grounds that the church did not fit the City’s vision of the Old Town District as a cultural, retail, recreational and entertainment hub with high pedestrian traffic. In particular, the Commission stated that due to a state law barring issuance of new liquor licenses within 300 feet of a church, the City’s goals for Main Street in the Old Town District could be frustrated by Centro Familiar locating there.

Centro Familiar filed suit under RLUIPA in May 2008 in federal court, including a claim the city’s actions violated Section 2(b)(1) of RLUIPA, also known as the equal terms provision. The equal terms provision provides that: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

After a bench trial, the court ruled in favor of the city. With regard to the equal terms claim, the court ruled that treating the church differently was justified for two reasons. First, under Arizona law, establishments that serve liquor cannot be located within 300 feet of houses of worship, and thus the presence of the church could impact neighboring uses in a way that secular assemblies and organizations would not. Second, the court noted that churches and other religious organizations were, in the courts view, more likely to have accessory uses such as social services, reading rooms, and educational institutions than other organizations.

Centro Familiar appealed, and the United States joined the case as amicus curiae, or friend-of-the-court. The United States’ brief argues that the trial court erred in ruling against the church’s equal terms claim, and held that there was no basis for singling out religious organizations as the only type of membership organization excluded from the zone. First, the brief contends that the Arizona law barring issuance of liquor licenses to establishments near churches cannot serve as a valid basis for denying the protection of RLUIPA. Such a law, ostensibly enacted to protect churches that do not want bars and liquor stores nearby, cannot be used to thwart the federal rights of a church that does not wish to be protected. The brief cites a nearly identical case from the United States Court of Appeals for the Seventh Circuit, Digrugilliers v. Indianapolis, which ruled that RLUIPA prevented using a liquor-near-a-church law to deny a church equal treatment. The court in that case held that “government cannot, by granting churches special privileges,” such as the right “to be free from offensive land uses in its vicinity, furnish the premise for excluding churches from otherwise suitable districts.” The same is true in this case, the brief argues. However, the brief notes that “if the Church wishes to operate in the Old Town District on the same terms as a secular membership organization, it cannot be heard to complain that liquor stores and bars are in its immediate vicinity.”

The United States’ brief also argues that the court was wrong to conclude that religious organizations may be treated differently because they are more likely to engage in “accessory uses.” The brief notes “if the City wants to regulate accessory uses, it can do so directly through a neutral permitting process that applies evenhandedly to both religious and secular membership organizations.” The brief also points out that the city’s accessory-use argument against the church is in tension with its claim that it wants to keep out houses of worship to create a district with greater foot traffic. The brief adds that Centro Familiar church wishes to offer English classes, music and dance lessons, and computer classes, among others, all things which would tend to increase pedestrian activity. The brief concludes that “the Church is thus arguably more consistent with the City’s goals for the Old Town District than are secular membership organizations, such as trade associations and labor unions, that may not generate comparable foot traffic yet are allowed to operate in the district as of right.”

Arguments in the case have not been scheduled

 Centro Familiar Cristiano Buenas Nuevas v. City of Yuma (No. 09- 15422)

About 20 acres of the company’s 63-acre tract were zoned for general business use in 1974 when the zoning map was based on 1955 aerial photos.  The balance was zoned for residential-agricultural use.  In 1988, the county adopted a new map, superimposing property and zoning lines on photos.  In 2006, the company sought rezoning and a conditional use permit for a home improvement center and other retail uses on 29.37 acres. The planning director determined that legal descriptions contained in 1974 zoning applications did not match the map and modified the map to show the general business area as covering about 30 acres.  The company modified its requests accordingly, one day before the hearing.   The board of commissioners approved the applications.  The trial court ruled in favor of objectors.

The appeals court affirmed, first holding that modification of the applications less than 30 days before the hearing violated the ordinance.  The board has no authority to modify or waive the requirement by “interpretation” and the objectors were not required to appeal to the board of adjustment before seeking judicial review.  Objectors had standing to challenge the commission’s decision upholding the planning director’s amendment of the map.  They presented evidence that the action would have an impact on their individual properties and property values.  The enabling statute, N.C. GEN. STAT. § 153A-345(c), and ordinance authorize the board of adjustment, not the planning director, to interpret zoning maps.

Murdock v. Chatham County, 2009 WL 2194814 (NC App. 7/21/2009).

The opinion can be accessed at: http://www.aoc.state.nc.us/www/public/coa/opinions/2009/pdf/080809-1.pdf

This abstract appears in the October 2009 issue of Planning and Environmental Law published by the American Planning Association.  For subscription information see: http://www.planning.org/PEL

Post, was the owner of numerous rental properties in Tacoma, twenty-four of which were found to be in violation of city ordinances because they were substandard or in some cases derelict. The City imposed penalties and gave Post thirty days to respond to the allegations pursuant to the building code. Post responded by setting up work schedules to correct the problems with some of the properties. He failed to respond to at least two of the notices however, and as a result, fines began piling up against Post.  Post filed a claim stating that the fining procedure and the fines themselves were unconstitutional. Tacoma counterclaimed for $411,000 in unpaid penalties. The Superior Court granted summary judgment in favor of Tacoma because Post had failed to exhaust all of his administrative remedies and because he failed to follow the procedures of the Land Use Petition Act (LUPA) in filing his claims.

The Washington Supreme Court disagreed and found that LUPA only applies to actions that fall within in the definition of land use decisions such as the granting of a special use permit, the imposition of an impact fee as a condition on the issuance of a building permit and approval of a site-specific zone. The Court held that LUPA does not apply because the penalties assessed against Post were civil infractions.  Tacoma did not provide a process for hearing and determining the infractions. Therefore the court found that Tacoma is required to enforce the infractions in courts of limited jurisdictions and that Post’s claims are not barred by LUPA.

The Supreme Court also found that Tacoma violated Post’s due process claims by only allowing appeal on the initial notice. The Court held that when a local jurisdiction assesses civil penalties for noncriminal violations of law but provides no opportunity for civil defendants to be heard, the defendant’s fundamental due process right is violated.

Post v City of Tacoma, 2009 WL 3298058 (Wash. 10/15/09)

The opinion can be accessed at: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=806845MAJ

A series of articles are being published from a number of different law reviews representing research conducted at the Government Law Center earlier this year.

In Sustainability and Land Use Planning: Greening State and Local Land Use Plans and Regulations to Address Climate Change Challenges and Preserve Resources for Future Generations,  the point is made that although a coordinated national policy on climate change should be developed, initiatives at the local government level through the land use planning and regulatory control processes have tremendous potential to dramatically contribute to the reduction of green house gas emissions, leading to a reduction in the carbon footprint and ultimately to a more sustainable environment. Part I of this article discusses opportunities for using the comprehensive land use planning process to address sustainability and provides examples of how this is being accomplished across the country. Part II mentions the growing number of state and local climate action plans (and cross-references a forthcoming article from the Houston Environmental & Energy Law and Policy Journal that details current developments in this area). Part III focuses on addressing emissions through the use of environmental impact reviews, and Part IV highlights how sustainability is being addressed through zoning and other land use regulations. Part V examines how green building standards are addressing sustainability, and Part IV illustrates how stormwater and landscaping initiatives are also being employed to accomplish these goals.

Watch the blog for several other articles that focus on different aspects of land use and climate change.

The article can be downloaded at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503379

Click on download on the left and then SSRN.

Adjacent property owners challenged the granting of a permit to construct a barn/equestrian center on their neighbor’s property. The permit was issued on after prior applications failed since as initially proposed the barn would have been a primary use of the lot and because a variance was needed and denied. The third attempt for a permit was successful since the owners reduced the size of the proposed barn obviating the need for a variance. The County conditioned the approval on the barn not being used as a commercial operation.  The lower courts upheld the approval and the neighbors appealed to the Wyoming Supreme Court.

The Court determined that the approval of the permit did not violate development regulations because the County had found previously that the construction would injure and violate private covenants in the neighborhood but did not consider these factors when deciding to grant the permit.  Specifically, the neighbors argued that the County is required to impose restrictions on the construction to minimize the adverse effects on the neighborhood. The relevant regulation states that the board “may” impose restrictions and conditions. The court stated that the use of the word “may” does not mean that an action is required. In addition, since the third application did not require a variance of any kind, the County did not need to consider whether or not the proposed construction was injurious to the neighborhood. The Court also noted that private covenants are between property owners and as such any violation of a private covenant the County has no authority to enforce.

Anderson v Board of County Commissioners of Teton County, 2009 WL 3171742 (WY 10/6/2009)

The opinion can be accessed at: http://www.courts.state.wy.us/Opinions/2009WY122.pdf

Bonasera, a Hispanic woman living in a predominantly white neighborhood, installed a second kitchen in her home and in 1999 began renting rooms to boarders.  In 2006, following the complaints of a neighbor, the City cited her for violating City ordinances restricting the use of her property to “one family residences and related uses.”  Rather than appealing the conviction in state court, Bonasera sued the City and several City employees in federal court alleging violations of the Fair Housing Act (FHA) and the Equal Protection Clause.  She alleged that her conviction for violating the zoning ordinance was motivated by racial animus and that the city selectively enforced its zoning ordinances in a way that created a disparate impact on Hispanics.  The district court found that Bonasera did not present any direct evidence of discriminatory intent and presented insufficient circumstantial evidence of discriminatory intent to create a genuine issue of material fact as well as insufficient evidence of disparate impact to support her claims under the FHA and the Equal Protection Clause.  Bonasera appealed.

 The Eleventh Circuit Court of Appeals explained that for Bonasera to prevail under her FHA claim, she must prove 1) intentional discrimination, 2) disparate impact or 3) a refusal to make a reasonable accommodation.  To prove intentional discrimination “a plaintiff has the burden of showing that the defendants actually intended or were improperly motivated in their decision to discriminate against persons protected by the FHA.”  Bonasera contends that she produced evidence that racism motivated her neighbor to file a complaint against her and that the City knowingly implemented the racist attitudes of her neighbor by acting upon the complaint.  Specifically, Bonasera pointed to the portion of the deposition where Marshal Smith testified that he heard the neighbor  express his concerns at a meeting “about the neighborhood going down” and that the neighbor  reported “numerous male Mexicans there, gang types, looked like gang types, and said we are zoned R-100.”  Bonasera also pointed to several of Marshal Smith’s statements, which she asserts are evidence of his animosity toward Hispanics.

Bonasera also challenged the district court’s conclusion that because the City rarely issued citations for violations of this specific zoning ordinance, Bonasera had not shown a disparate impact on Hispanics of the City’s zoning enforcement.  Footnote 2 cites that “the evidence indicates that the City has issued a total of seven citations, excluding Bonasera, for violations of the R-100 zoning district, all of which were issued against Hispanic persons.”  However, the court failed to find a disparate impact because Bonasera provided “no evidence that the City was aware of any violations of zoning ordinance by white homeowners and chose to ignore them.”  The court explained that a selective enforcement claim based on race “must show that similarly situated individuals of a different race were not prosecuted.”

In upholding the decision of the district court, the Circuit Court concluded that “Bonasera presented no direct or circumstantial evidence of discriminatory intent or of a disparate impact to support her claims under the FHA” nor her claims under the Equal Protection Clause.

Bonasera v. City of Norcross, 2009 WL 2569097 (C.A.11 (Ga.) 8/21/2009)

The opinion can be accessed at: http://www.ca11.uscourts.gov/unpub/ops/200911514.pdf

Industrial Tower and Wireless, LLC (ITW) alleged that the East Kingston Zoning Board of Adjustment (ZBA) improperly denied ITW’s application for a variance to construct a wireless telecommunications tower on property zoned only for residential use because the Town’s grounds for denial were not supported by substantial evidence.   

Under New Hampshire law, a zoning board may authorize a land use variance if the applicant proves that the following conditions are met: 1) the variance will not be contrary to the public interest; 2) special conditions exist such that the literal enforcement of the ordinance results in unnecessary hardship; 3) the variance is consistent with the spirit of the ordinance; 4) substantial justice is done; and 5) the variance will not diminish the value of surrounding properties.  The New Hampshire Supreme Court has explained that unnecessary hardship may be established by proof that: 1)a zoning restriction as applied to the property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; 2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and 3) the variance would not injure the public or private rights of others.

ITW, a business owning and operating antenna towers, determined that there was a significant coverage gap for their wireless service network in the north-eastern section of East Kingston (the town), and an antenna facility needed to be installed to close this coverage gap.  On April 26, 2006, ITW submitted an application for a variance to construct a 180-foot wireless telecommunications tower on a 26-acre parcel of land located in a residential zone of the town.  The zoning board initially voted to grant the variance, but in early 2007 Kenridge Farm applied for and was granted a re-hearing of the ZBA’s decision.  The town then conducted a balloon test to determine the aesthetic consequences of a 160-180 foot tower on the landscape.  The test concluded that the balloon was visible from the Kenridge Farm as well as from some other locations in the area.  Following the test, the ZBA received correspondence from the Public Archaeology Lab and the New Hampshire Division of Historical Resources indicating opposition to ITW’s proposed tower because of its adverse effect on the integrity of historical properties in the area and that the balloon test confirmed that “the proposed installation would create a significant intrusion in the rural scenic backdrop and important public views of two significant historic buildings.”

On September 27, 2007, the ZBA voted to deny ITW’s variance application because: 1) the residential use restriction did not interfere with the applicant’s reasonable use of the property; and 2) the proposed use would be contrary to the spirit and intent of the zoning ordinance.

The primary issue in front of the federal district court on a summary judgment motion was whether the ZBA provided substantial evidence that ITW had failed to establish: 1) that special conditions exist such that a literal enforcement of the provisions of the ordinance would result in unnecessary hardship; and 2) that granting the variance would be consistent with the spirit of the ordinance.  ITW contended it had demonstrated that all the alternatives suggested by the ZBA are not feasible for various reasons including, lack of interest by property owners, inability of alternative sites to accommodate the proposed tower and facility, and poor location of the alternative sites for closing the coverage gap.  The court agreed that some alternatives were not feasible, but found that ITW had not adequately demonstrated why other proposed solutions such as a stealth faux silo installation or multiple shorter installations would not be feasible alternatives.  In order to prove unnecessary hardship, ITW must prove uniqueness by demonstrating that it made a full effort to evaluate alternatives and that the alternatives are not feasible to serve its customers.  Because ITW could not prove uniqueness, the ZBA was justified in its denial of the variance.  The court additionally found that the use of the variance to construct a telecommunications tower was inconsistent with the spirit of the ordinance, which was “to preserve and protect the rural character of East Kingston by reducing the negative impacts of the telecommunications facilities, such as impacts on aesthetics, environmentally sensitive areas, and historically significant locations.”  Therefore, the ZBA’s written denial of ITW’s application for variance was based on substantial evidence and it was not improper.

Industrial Tower and Wireless, LLC v. Town of East Kingston, 2009 WL 2704579 (8/28/09 D.N.H.)

The Supreme Court of Kentucky held that the retroactive application of sex offender residency restrictions (a 2006 law that limited sex offenders from residing within 1000 feet of a school, a daycare center or a playground) violates the ex post facto clauses in the federal and state constitutions. The Court explained that Under Smith v. Doe, 538 U.S. 84 (2003), a law must be punitive (rather than civil) to constitute an unconstitutional ex post facto law. While the court found that the legislature intended the law to “be a civil, nonpunitive, regulatory scheme[,]” it looked to five factors to determine whether the law “is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” The five factors—whether the law has historically been regarded as punishment; whether it promotes the traditional aims of punishment; whether it imposes an affirmative disability or restraint; whether it has a rational connection to a nonpunitive purpose; and whether it is excessive with respect to a nonpunitive purpose—all weighed in favor of concluding that the restrictions were punitive in effect.

Kentucky v. Baker, No. 2007-SC-000347-CI (KY 10/1/2009).
The opinion can be accessed at: http://opinions.kycourts.net/sc/2007-SC-000347-CL.pdf

According to this article, the Kentucky Attorney General is asking the U.S. Supreme Court to hear this case, and has asked the Kentucky Supreme Court to delay implementing the ruling until the Supreme Court decides whether to hear the case.

Read what the Sentencing Law and Policy Blog says here

For an article on residency restrictions you can download a recent piece by clicking on download and then SSRN here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395347

Special thanks to the ABA State & Local Government E-News for bringing this case to my attention.

Abbey Road Group, LLC sought to construct a 575-unit multifamily condominium project on over 36 acres (the “Property”) in the city. On September 13, 2005, Abbey Road submitted a site plan application. A site plan application is “part of a preliminary stage in the development process relative to a building permit application phase.” Later that same day, the city passed an ordinance, rezoning the Property. Under the rezone, the Property was categorized as “Residential/Conservation District.” The rezone precluded Abbey Road’s proposed multifamily development.

Abbey Road argued that its development rights vested on September 13, 2005, when it filed its completed site plan application. Washington statutory law provided only that development rights vested upon the filing of a complete building permit application. Abbey Road argued that the vested rights doctrine should be expanded, and that development rights should vest upon the filing of a site plan application. It contended that such an expansion was warranted because: (1) the cost to a developer of a site application “represents a level of commitment that entitles it to a vested right and is sufficient to deter permit speculation;” and (2) in this case, the city’s building permit application process denied applicants of their due process rights because it conditioned submission of a building permit application on prior approval of a site plan application.

Rejecting Abbey Road’s arguments, the Supreme Court of Washington declined to extend the vesting doctrine to site plan applications. The court concluded that Abbey Road’s cost-based argument failed for three reasons: (1) the cost of obtaining site plan applications varies greatly depending on the proposed project; (2) the court preferred a “date certain vesting standard” over a “case-by-case analysis of costs and reliance interests;” and (3) unlike building permit applications, site plan applications could be submitted at “the infancy of a project before the developer has made a substantial commitment to it.” The court also concluded that the city’s building permit application process did not deny applicants of their constitutional due process rights. The city’s zoning regulations allowed applicants to simultaneously file a site plan application and a building permit application. Abbey Road, found the court, simply “chose not to use this process, but to obtain site development plan approval before undertaking the additional step of filing a building permit application.”

Abbey Road Group, LLC v. City of Bonney Lake, 2009 WL 3210388 (Wash., 10/8/ 2009).

The opinion can be accessed at: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=808783MAJ

The abstract appears in the complementary Quinlan Zoning E-News.  To subscribe visit: http://west.thomson.com/signup/newsletters/215.aspx