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 Arrigoni’s post-trial motion seeking declaratory judgment that the zoning regulation be repealed for vagueness became the basis for this case.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 12.05.03.01.03.B 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: https://acis.alabama.gov/displaydocs.cfm?no=553082&event=3ZE0LEUEB

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: http://www.adfmedia.org/files/ChurchOfOurSaviorDecision.pdf

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)

Branson’s Board of Adjustment denied Respondent Cushman’s request to upgrade a backlit billboard to a digital sign face. Upon judicial review, the circuit court reversed and ordered the Board to grant the request. Code § 70–17(a)(1) sets forth in relevant part that no nonconforming sign “may be enlarged or altered in any way which increases its nonconformity….” The current sign included a twelve by eighteen foot (12′ x 18′) backlit billboard and a four by fourteen foot (4′ x 14′) message board. Cushman desired to replace the backlit portion with a digital face sign, which would have required some electrical modifications because the digital sign would require more electricity than the current backlit sign.

The court stated, “[Z]oning ordinances, being in derogation of common law property rights, are to be strictly construed in favor of the property owner against the zoning authority” and, if a permit applicant meets the standard, the issuance of the permit is ministerial. On judicial review of an administrative decision, the appellate court cannot affirm decision on grounds not cited in decision and “cannot infer that an administrative agency found facts in accordance with the results reached.” The Board admitted that Cushman’s sign was not within the zone code it cited, and the proper code section was never mentioned at the hearing or in the Board’s decision. Therefore the court reversed the Board’s decision, which was not supported by competent and substantial evidence.

State of Missouri v Board of Adjustment of City of Branson, 2014 WL 6478610 (MO App. 11/19/2014)

The opinion can be accessed at: http://www.courts.mo.gov/file.jsp?id=80893

Neighbors Supeno and Ernst appealed the decision of the Superior Court, Environmental Division upholding the Town of Addison Development Review Board’s (DRB) grant of certificates of occupancy for two detached decks and a conditional use permit for an enclosed deck to applicants Linda J. and John P. Carrigan for improvements to applicants’ seasonal camp on Lake Champlain. Neighbors also argued that the actions of the DRB directly contravened state and local policies protecting sensitive shoreland areas and lakes. Applicants countered these arguments and further claimed that neighbors lacked party status to appeal the DRB’s decisions to the environmental court.

The Vermont Supreme Court noted that there exists a specific procedural rule “automatically” according interested party status to an appellant who claims status under 10 V.S.A. § 8504(b)(1), “unless the court otherwise determines on motion to dismiss a party.” As the trial court found, applicants failed to file a motion to dismiss, and therefore failed to preserve their objection to the appeal. Thus, standing was not an issue in this case. As to the certificate of occupancy challenges to the two decks, the court found that they were permissible under the Town of Addison Zoning Regulations. The court noted that the interpretation of this provision turned on defining “deck, gazebo or similar structure.” The DRB found that once applicants removed the decking and railing from behind the retaining wall, the structure no longer constituted a deck or similar structure, and as commonly understood, decks and gazebos are structures with platforms (decking) and railings. It followed that “similar structure” as used in the provision applies to structures that also have platforms and railings. DRB’s interpretation of the bylaw was thereby found to be reasonable. Furthermore, since both the south and west portions of the L-shaped deck were freestanding and unsupported by the camp, the court found the second deck sufficiently detached, and the DRB’s decision also reasonable.

As to the issue of whether the DRB erred in granting a conditional use permit for the enclosed deck, the court found that Section 3.7(B)(3) of the bylaws allows a noncomplying structure to be “enlarged, expanded or moved,” provided that such modification “does not increase the degree of noncompliance.” However, here the applicants had turned a twenty-by-thirty-foot camp with a ten-foot deck into a twenty-by-forty-foot camp with a ten-foot deck extending in the direction of Lake Champlain and entirely within required shore land setback. Accordingly the court concluded that the enclosure of applicants’ deck increased the volume of the structure and therefore increased the degree of noncompliance, and the environmental court erred in affirming the DRB’s grant of a conditional use permit for applicants’ enclosed deck.

In re Carrigan Condition Use and Certificate of Compliance, 2014 WL 6633627 (VT 11/21/2014)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2013-346.html

Empire Residential Construction (Empire) applied to the Coconino County Planning and Zoning Commission to develop a residential community for single-family homes. The Board unanimously approved Empire’s application and both parties agreed on a $4 million performance bond for the development, but Empire declared bankruptcy and abandoned the development midway through the project. Bellemont 276m L.L.C. (Bellemont) then purchased a unit under the impression that the performance bond would pay for the development, but the County passed a resolution to deny payment through bonds due to the fear of potential litigation costs. The County ultimately rejected Bellemont’s application for a building permit and Bellemont as well as several parties filed suit against the County alleging that their interests were harmed by the County’s refusal to issue bonds. Appellees sought declaration from the court that the County’s duty to call the bonds was a mandatory ministerial act and the court granted Appellees’ application, ordering the County to issue the bonds. The County then filed a notice of appeal.

In deciding whether Coconino County, Coconino County Board of Supervisors (Board) and the Coconino County Community Development Department have the discretion to call performance bonds posted by a developer to ensure completion of subdivision improvements, the Court of Appeals of Arizona found that Appellees lacked standing to request the bonds or to make a claim directly against the surety. The statutory language was interpreted by the Court of Appeals to plainly ensure that the amount of the bond posted by a developer was sufficient to cover the cost of necessary subdivision improvements. The court said that the legislative intent of A.R.S. § 11-821(C) was to require developers, such as the new owner, to pay for the cost of subdivision improvements and the County determined that calling the bonds did not serve this interest. The court held that under A.R.S. § 11-821(C) and Coconino County Subdivision Ordinance No. 82–3, the County had discretion to decide not to call performance bonds posted by an owner/developer to ensure completion of subdivision improvements. The Court of Appeals reversed the trial court and remanded the matter for further proceedings consistent with its opinion. An appeal to the Arizona Supreme Court is in process.

Ponderosa Fire District v Coconino County, 235 Ariz. 597 (AZ App. 8/28/2014)

The opinion can be accessed at: http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2014/1%20CA-CV13-0545.pdf

Fioritto purchased a two-acre parcel of land that was located within a General Commercial zoning classification and he requested a conditional use permit or variance to operate his construction business on his property, but failed to return with additional information that was requested from the Board. During this time he ran his business which also involved making and delivering nursery landscape supplies such as mulch, topsoil and trees. He owned four dump trucks, two excavators, a caterpillar dozer two trailers and a 300-gallon fuel tank, which was located on the property. The Township of Brimfield brought a claim against Fioritto when notified about the equipment on the property and moved for permanent injunction against him for using the property in a way that was not permitted in a General Commercial District. The court granted the request for a permanent injunction, finding that Fiotitto used his construction equipment to clear his lot but did not obtain a certificate to allow the equipment to be stored after the lot was cleared and this appeal ensured.

On the question of whether an individual can store construction vehicles and equipment on his land while clearing the land of trees and whether a nursery is permitted use of property zoned General Commercial, the Court of Appeals of Ohio found that a trial court’s granting of an injunction should not be disturbed in the absence of a clear abuse of discretion or if the findings of fact is against the manifest weight of the evidence. The Court of Appeals went on to find that the even though Fioritto was not prohibited from clearing his land, he was not given permission to store a large collection of construction equipment on his property, and the facts did not support a conclusion that the construction equipment and materials were being used solely for the purposes of clearing the property of trees or grading the property for future building or other developments. In regards to whether the court improperly used the definition of agricultural nursery to define a retail nursery under the Brimfield Zoning Resolution which would create an exemption from the zoning, the Court of Appeals held that the trial court properly concluded that Fioritto did not produce nursery stock or cultivate plants on his property and hence did not meet the definition. The Court of appeals further found that even if he was operating a nursery, Fioritto was still required to comply with the zoning certificate requirement of the Zoning Resolution.

Brimfield v Fioritto, 2014 WL 5421212 (OH App. 10/27/2014)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-4743.pdf

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