Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for my presentation of the Kerlin Lecture at Pace Law School, one of the things that struck me is that New York governors for at least the last thirty years have consistently identified the interconnected critical economic, social, and environmental challenges facing the state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment today to secure tomorrow? The fact remains that these are the three major legs of the sustainability stool and the measure of gubernatorial leadership is not in the lofty goals that were set forth, but rather in what was actually accomplished. My Kerlin Lecture focused on the broader theme of gubernatorial leadership and sustainability rather than perhaps the narrower reference to the environment, to reflect what in my opinion has enabled the global community to address core environmental challenges by forming alliances with other interest groups that might not have necessarily believed there was a logical affinity to strengthening environmental protections. To read more specifics about the environmental agendas of NY Governors Mario Cuomo, George Pataki, Eliot Spitzer, David Paterson and Andrew Cuomo, see the article based on the lecture here:

CEQ has released a long awaited report setting a priority agenda to deal with resiliency and climate change. The report identifies four key priority strategies: 1) Fostering climate-resilient lands and waters; 2) Managing and enhancing U.S. carbon sinks; 3) Enhancing community preparedness and resilience by utilizing and sustaining natural resources; and 4)Modernizing federal programs, investments, and delivery of services to build resilience and enhance sequestration of biological carbon. The report also sets out an implementation plan for each of these strategies. The report can be accessed at:

Posted by: Patricia Salkin | October 12, 2014

Fed. Dist. Court in NC Dismisses Takings Claim on Ripeness Grounds

CarSpa Automotive, LLC, Marjorie Putnam, and Carl Deny (collectively, “plaintiffs”) filed a complaint against the City of Raleigh, North Carolina (“City”), claiming that the City had taken their property without paying just compensation, deprived them of property without due process of law, and denied them equal protection. Plaintiffs contended that the City “forced Plaintiffs to give a public access right of way in order to get a building permit for their property and as a result, their business had not been profitable.

The City contended that plaintiffs’ claims were unripe because the plaintiffs had not obtained a final, reviewable decision from the City or sought compensation through state-law procedures for obtaining just compensation.

The federal district court noted that a takings claim is not ripe for adjudication in federal court unless the plaintiff has obtained a final administrative decision regarding the application of the challenged regulations to the property, and has sought and been denied just compensation through the available and adequate state procedures. Williamson Cnty., 473 U.S. at 186. Here, plaintiffs had not obtained a final administrative decision or been denied just compensation.

As for finality, where the regulatory regime offers the possibility of a variance from its facial requirements, a landowner must go beyond submitting a plan for development and actually seek such a variance to ripen his claim. Here, property owner could have appealed to the Board of Adjustment for a variance from the City’s ordinances but they did not. Accordingly, the court held the plaintiffs had not obtained a final administrative decision. This failure also barred their due process and equal protection claims.

Plaintiffs argued under Sherman v. Town of Chester. 752 F.3d 554 (2d Cir.2014), the finality requirement should not apply because the City had behaved badly throughout the permit process. In Sherman, the court held that a takings claimant was not required to satisfy Williamson County’s finality requirement because the defendant Town had used “repetitive and unfair procedures” to avoid issuing a final decision. Here, plaintiffs’ conclusory allegations of the City’s “bad behavior,” were insufficient to exempt them from obtaining a final administrative decision.

Alternatively, even if the final-decision requirement were waived, plaintiffs’ takings claim would still not be ripe because plaintiffs had not been denied just compensation. To satisfy Williamson County’s state-procedures requirement, plaintiffs “must not only file a state law inverse condemnation claim they must also be denied just compensation through a final adjudication in state court.” Town of Nags Head v. Toloczko, 728 F.3d 391 (4th Cir.2013). Here, the plaintiffs had not pursued the available and adequate procedures North Carolina provides for seeking just compensation. Accordingly, their takings claim was not ripe.

CarSpa Automotive, LLC v City of Raleigh, 2014 WL 4923753 (ED NC 9/30/2014)

From APA Planning Law Division: The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms. But it’s not that simple. Businesses that rely on these constitutional guarantees continue to generate controversy in communities across the country. To compound matters, state legislatures from Arizona to Massachusetts have been busy granting new — and in many cases, previously unheard of — rights to marijuana and firearm retailers.

This has rapidly drawn planners and zoning practitioners into the debate over how these businesses best fit into their communities, and whether their communities are legally obligated to accommodate these uses in the first place. Spend an hour on October 22nd learning about the issues and regulatory strategies from around the country.

For more information see:

Trop, Inc. and the JEG Family Trust had operated the Pink Pony entertainment club (“Pink Pony”) as a restaurant with alcohol consumption and adult nude dancing under DeKalb County licenses since November 1990. In June 2001, Pink Pony entered into a Settlement and Release Agreement with DeKalb County, which gave Pink Pony the right to continue its operations, as it had always done, for a term of eight years. In May 2007, Pink Pony entered into the First Amended and Extended Settlement and Release Agreement, extending the original settlement agreement for an additional fifteen years.

Approximately five years later, the City of Brookhaven was incorporated. As a result, Pink Pony’s location became part of the new municipality. At that time, DeKalb County ordinances continued to apply in Brookhaven. Later, Brookhaven approved its own sexually-oriented business Code based on evidence of adverse secondary effects of adult uses presented to the City Council. The new sexually-oriented business ordinance, in conjunction with Brookhaven’s Alcohol Code, prohibited the sale of alcohol at sexually-oriented businesses and allowed only semi-nudity, not full nudity.

Pink Pony filed suit claiming that Brookhaven’s newly-enacted sexually-oriented business Code was unconstitutional, and that Pink Pony was exempt from it based on its settlement agreement with DeKalb County. The trial court granted Brookhaven’s motion for summary judgment. On appeal, the Supreme Court of Georgia affirmed and held that the sexually-oriented business ordinance did not unconstitutionally infringe on Pink Pony’s free speech rights. And, the settlement agreement did not create a vested right to continue operations as a nude dancing club that served alcohol.

The Court explained that the sexually-oriented business ordinance passed all three prongs of the Paramount Pictures test. First, it furthered the important government interests of attempting to preserve the quality of urban life, and reducing criminal activity and preventing the deterioration of neighborhoods. Second, these goals were not related to any desire to suppress speech. Brookhaven’s desire to preserve the quality of urban life and its attempt to reduce crime and prevent neighborhood deterioration by separating alcohol from adult entertainment were important government interests unrelated to the suppression of speech. Finally, any incidental restriction of speech caused by the ordinance was no greater than essential to further the important governmental interests. The ordinance’s application was sufficiently narrowly tailored because it was limited to the modes of expression implicated in the production of negative secondary effects, establishments that provide alcohol and entertainment requiring an adult entertainment license. It exempted mainstream performance houses, museums, and theaters. Therefore, the court held given the long history of sexually-oriented business ordinances, and the record regarding the deleterious effects of alcohol coupled with nude dancing, the trial court did not err by finding that, as a matter of law, Brookhaven’s sexually-oriented business ordinance did not unconstitutionally infringe upon Pink Pony’s free speech rights.

Further, Pink Pony’s contention that Brookhaven should be bound by the prior agreement between Pink Pony and DeKalb County did not change the result. Under OCGA § 36–30–3(a), the prior agreement could not be used to bind the successively incorporated City of Brookhaven.

Trop, Inc. v City of Brookhaven, 2014 WL 4958232 (GA 10/6/2014)

The opinion can be accessed at:

This appeal arose from a challenge by O’Shea’s–Baxter, LLC, d/b/a Flanagan’s Ale House (“Flanagan’s”) to an order of the Alcoholic Beverage Control Board (“ABC Board”) upholding the Louisville/Jefferson County Government’s (“Louisville Metro”) denial of Flanagan’s application for a retail drink license. The issues concern KRS 241.075, which prohibits the issuance of a retail drink license to an applicant located in a “combination business and residential area” of a city of the first class or consolidated local government if another “similar establishment” is located within 700 feet of the applicant. Flanagan’s challenges the constitutionality of KRS 241.075 on the grounds that it (1) constitutes local and special legislation in violation of Sections 59 and 60 of the Kentucky Constitution, (2) exercises arbitrary power and fails to provide for equal protection under the law in contravention of Section 2 of the Kentucky Constitution, and (3) unconstitutionally delegates zoning powers vested in local governments to the state. The circuit court declined to declare KRS 241.075 unconstitutional, holding that an important public purpose was served by limiting the density of establishments authorized to serve and sell liquor in the “combination business and residential areas” of Louisville Metro. Accordingly, the circuit court denied Flanagan’s motion for summary judgment and granted summary judgment in favor of Louisville Metro and the ABC Board. The Court of Appeals ruled that the statute was unconstitutional local and special legislation in violation of Sections 59 and 60 of the Kentucky Constitution.

This court first noted that legislative enactments regulating alcohol are entitled to a particularly strong presumption of constitutionality. However, although Louisville Metro may have offered a compelling basis for separately classifying Louisville’s “downtown business area,” to insulate residential areas from the “evils of alcohol,” the separate classification of Louisville’s downtown was necessary only because of the application of KRS 241.075’s 700–feet rule to the rest of Louisville. In Louisville’s “downtown business area,” there was no 700–feet rule limiting the concentration of retail drink licenses, just as there was no such rule in Lexington or Bowling Green. Therefore, the court found, even if the separate classification of Louisville’s “downtown business area” was constitutional, it did not support a finding that the 700–feet rule is constitutional. Because the statute did not treat individuals and corporations across the state alike, and it unnecessarily discriminated against potential retail drink licensees in Louisville’s consolidated local government, the court found the restriction in violation of the letter and spirit of Sections 59 and 60 of the Kentucky Constitution.

Louisville/Jefferson County Metro Government v O’Shea’s-Baxter, LLC, 2014 WL 4116490 (KY 8/21/2014)

The opinion can be accessed at:

In late October 2012, plaintiffs applied to obtain the appropriate licenses and permits from the village to open and operate a shooting range on the second floor of a building, above a licensed gun dealership. The property is located in what the village referred to as a B-2 zoning district, which permits for-profit or not-for-profit health clubs and private recreation. On November 1, 2012, the village’s zoning officer denied the applications, finding that a shooting range did not fall within the ordinance’s permitted-use provision for the zoning district. On November 9, 2012, the village adopted a resolution initiating amending the ordinance to formerly clarify that shooting ranges are not permitted uses in the B-2 zoning district. Thereafter, the village’s zoning board of appeals affirmed the zoning officer’s denial of the plaintiffs’ applications, finding that a shooting range did not fall into the intended meaning of the ordinance’s definition of “health club or private recreation.” Upon administrative review, the circuit court affirmed the zoning board’s decision but the appellate court reversed.

The appellate court determined that a shooting range fell under the unambiguous definition of a “health club or private recreation” as used in the ordinance at the time of the applications. At the time the plaintiffs submitted their applications, the village’s ordinance defined “health club or private recreation” as: “A building or portion of a building designed and equipped for the conduct of sports, exercise, leisure time activities, or other customary or usual recreation activities, operated for profit or not-for-profit and which can be open only to members and guests of the organization or open to the public for a fee.”
Examining the dictionary definition of “recreation,” the appellate court determined that the plain language of the ordinance was unambiguous, and concluded that the proposed shooting range was a “recreation” and, hence, a permitted use as of right under the ordinance.

Platform I Shore, LLC v. Village of Lincolnwood, 2014 IL App (1st) 133923 (8/18/2014)

The opinion can be accessed at:

Editor’s note: This blog post is reprinted from the Illinois Municipal League’s weekly digest at:

Ogden Land Development submitted a subdivision application to the Village Planning Board to divide a 21,683 square foot triangular shaped lot in a residential district into two lots. The applicable Code requires every lot to have a minimum area of 10,000 square feet. The Building Inspector determined that the two lots would not conform to the Code provisions as each lot would only have one “side” lot line and therefore would fail to satisfy the definition of “Depth of Lot” in the Code, and further the “second line” would fail to satisfy an additional requirement that the “lot depth [be] ‘measured in the general direction of its side lot lines.’” Odgen appealed to the Zoning Board of Appeals which upheld the Building Inspector’s determination, concluding that the application would create two nonconforming lots. Ogden appealed again and the trial court overturned the determination concluding that the Zoning Board’s determination was irrational and unreasonable. The Village appealed.

The appellate court upheld the trial court’s determination finding that the two proposed lots did not lack a second “side” lot line. The Court relied on the “re-subdivision” map Ogden submitted that “depicts a bisected pie-shaped lot, with front, rear, and easterly and westerly side lot lines.”

Ogden Land Development, LLC v Zoning Board of Appeals of Village of Scarsdale, 2014 WL 4851737 (N.Y.A.D. 2 Dept. 10/1/2014)

The opinion can be accessed at:

Plaintiff alleges that the Sheffield Wind Project that the Defendants owned and operated created an unreasonable noise impact, that the noise prevented the Plaintiff from gardening, eating outside, walking and other activities similar, and the Plaintiff therefore suffered stress, pain and suffering and loss of the use of his property.

The District Court of Vermont found that the Plaintiff submitted sufficient information for a private nuisance claim, due to interference with the use and enjoyment of another’s property that is both unreasonable and understanding. Defendants contended that the Plaintiff’s complaint should be collaterally estopped because the claims litigated were already decided when the Plaintiff unsuccessfully contended and appealed against the granting of the permit, but Plaintiff in return claims that the standard applied for the permit were different from the standard applied for private nuisance.

The court found that the enjoyment of the Plaintiff’s property has never been litigated, and the restrictions imposed by the permit did not cover a private nuisance issue. Collateral estoppel does not apply here as the private nuisance claim was not raised in the first action, and the general nuisance claim that focused on the impact to the community was not identical to the private nuisance issue. Defendants’ motion was to dismiss Plaintiff’s private nuisance claim was therefore denied.

Brouha v Vermont Wind, LLC, 2014 WL 4748221 (DC Vt. 9/23/2014)

The opinion can be accessed at:

Plaintiff, Chai Lifeline, Inc. (“Lifeline”), is a corporation that owns a single-family residence in a residential zone in the Township of Mahwah (“Mahwah”). Lifeline used that property as a retreat for clients whose lives have been affected by life threatening illness or recent loss, and for counseling for recently widowed women (retreat). Clients were permitted to stay at the retreat for a couple of days. Lifeline appealed from the trial court’s order upholding the Mahwah Township Zoning Board’s (“Board”) determination that it did not meet the definition of family as used in its zoning ordinance and denying the application for a use variance.

In 1986, Mahwah enacted Ordinance 919 which defines “family” as “A group of persons functioning as a single housekeeping unit and whose relationship is of a permanent, stable and domestic character as distinguished from non-familial institutional uses, boarding homes, fraternities, sororities, clubs, associations, transient housing or other similar forms of housing.” In concluding the property was not being utilized as a single-family dwelling, the Board determined that Lifeline’s use was “transient housing,” which Ordinance 919 specifically distinguishes and excepts from the definition of family. The court reasoned that the Board and the trial court’s determinations were consistent with the case law in that they did not “disqualify” the visitors from the definition of “family,” but rather, the Board’s determinations found that Lifeline’s use of the property, in itself, did not fit the definition of “family.” Although the people who stayed at the retreat may constitute a “family” as defined by Ordinance 919, Lifeline’s use of the property was not consistent with the definition since visitors stayed for a short period of time.

As to the denial of the variance, the Board found the current residents of the neighborhood would be adversely affected by the introduction of this prohibited use into the neighborhood. Testimony was presented, and the Board found, the residential character of the neighborhood had changed in a negative manner, and would continue to be negatively affected. The court therefore found that the Board acted with sufficient evidence that it could not be said to have acted arbitrarily or capriciously.

Chai Lifeline, Inc. v Township of Mahwah, 2014 WL 4288927 (NJ Sup. 5/29/2014)

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