In 1994, Manta opened a comedy nightclub in the city’s CR-3 regional commercial zone. That was a permitted use in the zone. Six months later, Manta converted the club to an adult cabaret featuring topless entertainment. Adult businesses were not a permitted use in the zone. Manta filed a federal lawsuit claiming the ordinance’s locational limitations were unconstitutionally restrictive. The city responded with a state-court suit seeking an injunction against Manta’s operation. The trial court issued a temporary restraining order against Manta.

A year later, the trial court dissolved the preliminary injunction after finding the city’s ordinance infringed Manta’s First Amendment rights. The Court of Appeal eventually affirmed that ruling and the supreme court declined to review its opinion. During that time, however, Manta was subject to a stay preventing it from operating as an adult business. In all, the state court injunctions and stays kept Manta out of the adult entertainment business for 53 months. Meanwhile, Manta had filed a cross-complaint in state court claiming the city was liable under the federal Civil Rights Act, 42 U.S.C. § 1983, for its lost profits. Following a non-jury trial in which the judge found the city’s actions in attempting to enforce an unconstitutional zoning ordinance violated Manta’s rights, a jury awarded Manta $1.4 million in damages.

The Court of Appeal affirmed the judgment. The Supreme Court stated the general rule that governing bodies can be sued directly under the Civil Rights Act for monetary relief where the claimed unconstitutional act implements a policy statement, ordinance, regulation or decision officially adopted and promulgated by the governing body’s officers, citing Monell v. New York City Department of Social Services, 436 U.S. 658. It noted a number of courts have found cities liable for damages based on official action to enforce an ordinance later found unconstitutional. However, it pointed out, none of the cases cited involved a situation where a court approved the city’s enforcement of its ordinance before the ordinance was found unconstitutional.

The court referred to decisions from the 2nd, 3rd, 5th and 11th U.S. Circuit Courts of Appeal ruling that a trial court’s exercise of independent judgment to uphold allegedly unconstitutional action by a local government agent “broke the chain of causation,” preventing the government agent from being held liable for his or her unconstitutional act. Those decisions caution, however, that the chain of causation is not severed where the court’s decision was based at least in part on a misrepresentation by the local government or its agent.

The court found the reasoning of these decisions persuasive, and declared that where a court is provided with appropriate facts to decide a motion for a preliminary injunction or a stay pending appeal, the court’s intervening exercise of independent judgment interrupts the chain of causation for purposes of § 1983 liability. But the general rule of superseding cause does not apply if the judicial officer reached an erroneous decision because of pressure or being materially misled. The court went on to say it could not decide on the basis of the record before it whether the principle of intervening causation or the exception for pressure or misrepresentation applied in this case. The parties agreed that the declarations the city submitted in support of its request for preliminary injunction contained misinformation regarding the availability of alternate sites for adult entertainment venues within the city, and the city also misrepresented to the appellate court that Manta would suffer no irreparable harm because it had a damages remedy.

The parties disagreed on whether some of the misstatements were in fact misleading and whether any misrepresentations were material. Therefore, the court said, it would send the case back to the trial court to resolve any relevant factual issues and apply the principles of superseding intervening cause.

Manta Management Corp. v. City of San Bernardino, 181 P.3d 159, 75 Cal.Rptr.3d 353 (Ca. Sup. Ct.  4/24/2008).

The opinion can be accessed at: http://www.courtinfo.ca.gov/opinions/documents/S144492.PDF

Special thanks to James D. Lawlor, editor of the Land Use Legal Report for permission to reprint this summary from the Land Use Legal Report (LULR) Vol. 2 no. 10 (April 30, 2008).  For information about subscriptions to the LULR and other LULR services, email Lawlor at landlaw@verizon.net.

In 1999, the city adopted a finding of blight, a redevelopment plan, and tax increment financing (TIF) for 1,640 acres of farmland. The trial court granted summary judgment in favor of the city. The appeals court remanded, holding that the existence of genuine issues of fact made summary judgment inappropriate. While the TIF Act definition of “blight” is “not a model of clarity,” the court concluded that an area is blighted if the “predominance of” a listed factor or factors leads to enumerated resulting circumstances, considering the area’s present use and condition.

The city’s findings indicated that the area suffers from inadequate street layout and conditions that “endanger life or property by fire and other causes,” to an extent that “constitutes an economic or social liability,” that the area has not been subject to growth and development through investment by private enterprise and would not reasonably be developed without adoption of TIF, and that the redevelopment plan conforms to the comprehensive plan. The roads are not inadequate for present uses, according to the court, and the city’s assertion that the area is subject to flooding was not supported by substantial evidence.

Because the city had not established the presence of a predominance of underlying factors, its assertion that those factors result in economic liability was irrelevant. The court noted that a levee is under construction and that “it defies reason to say that a project currently underway … cannot be reasonably anticipated to occur without the use of TIF funding.” There was also evidence that other development of the area will proceed without TIF.

Great Rivers Habitat Alliance v. City of St. Peters, 2008 WL 563440 (Mo. App. WD 3/4/2008).

The opinion can be accessed at: http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/d421bcb2159e8e2486257401006bd153?OpenDocument

Special thanks to Lora Lucero,Esq., AICP, editor of Planning and Environmental Law Report (PEL) for granting permission to reprint this abstract from the May 2008 issue. For more information about PEL see, http://www.planning.org/PEL/index.htm

Señor Rattler’s, a restaurant, operated under the terms of a 1988 variance that prohibited entertainment or a dance floor on the premises, and further provided that the premises would not be used for a club. In 2000, after MAJ had acquired the property, MAJ sought and received a use permit to operate a restaurant with accessory “live entertainment and dancing by patrons….” (2000 permit). MAJ opened an establishment called Club Kama Sutra, which offered buffet dining on the first floor, DJ music and dancing on the third floor, and open cubicles with futon mattresses where patrons could engage in sexual activity, as well as watch other patrons so engaged, on the second floor. The club charged $100 per couple on Saturday nights, $75 per couple on Friday nights, $25 for a single woman to attend on either night, and $100 for single men, who were only allowed in on Friday nights. In 2005, the City issued a “Cease Operations Order” to MAJ to cease operating a restaurant not in accordance with its permit, to cease operating a sex club without a permit, and to cease operating a private club without a permit. On MAJ’s appeal to a zoning board, the board concluded that the 1988 variance terms ran with the land and, therefore, bound MAJ. On further appeal, MAJ argued the sexual activity was “live entertainment,” like gambling, and a valid accessory use to the property’s use as a restaurant; therefore, Club Kama Sutra was operating in compliance with the 2000 permit. The trial court ruled that simply because Philadelphia’s zoning ordinances did not specifically prohibit sex clubs did not mean that they were permitted, and held that the use of the property for the sexual activity of patrons was not an accessory use to a restaurant use.

The Commonwealth Court of Pennsylvania affirmed. Even assuming Club Kama Sutra was a restaurant, the accessory use argument failed. On MAJ’s attempt to cite as precedent a case where the state Supreme Court ruled that off-track betting was an accessory use to a restaurant, the court noted that, unlike the situation at bar, legislation had created a custom whereby off-track wagering was associated with fine dining. Further, the use of the property as a sex club did not appear to be subordinate to the facility’s use as a restaurant and was not customarily incidental to that use: “Club Kama Sutra’s visitors seem to have paid primarily for access to the ‘party’ rather than for the buffet.” This interpretation received additional support from the price structure, which the court noted was “wholly unrelated to the amount of food a patron might consume.” The argument that no provision of the city zoning ordinances prohibited MAJ from allowing its patrons to engage in sexual activity was likewise rejected – the ordinance explicitly enumerated “permitted uses.” Merely because a zoning ordinance did not explicitly forbid operation of a sex club did not mean that an individual or corporation could obtain a permit for a different use and operate a sex club.

MAJ Entertainment Inc. v. City of Philadelphia, 2008 WL 1913229 (Pa. Cmwlth. Ct. 5/2/2008 )

The opinion can be accessed at: http://tinyurl.com/4po9td

This case brief was prepared by Sophia Stadnyk of IMLA (International Municipal Lawyers Association) for IMLA News Issue No. 7, May 14, 2008.  For more information about IMLA visit www.imla.org  

The owner of land adjacent to the town industrial park applied for rezoning from the general industrial to the heavy industrial classification with a conditional use permit for outside storage of materials and equipment. The board was warned about the owner’s background and ongoing legal disputes with the county. The planning manager for the county approved the rezoning because abutting land was classified for heavy industrial use.

The board denied the application, stating concerns about allowing a junkyard. The owner apparently operates a junkyard in another town. The court remanded and the board prepared a list of reasons, indicating that the property includes wetlands and large trees, that the owner’s history is documented in many newspaper stories, that the owner had already placed junk on the property, and that it wanted to buffer other zoning districts. The trial court affirmed.

The appeals court reversed and remanded, stating that the board did not identify any legal criteria for its denial but seemed to consider only the owner’s history and concerns about what might happen. Although the board mentioned natural features of the land, it did not indicate what impact approval would have on those features. The board mentioned buffering, but the land does not abut residential property and other heavy industrial property is closer to residential uses.

Staege v. Town of Norway, 2008 WL 583676 (3/5/2008).

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=31988

Special thanks to Lora Lucero,Esq., AICP, editor of Planning and Environmental Law Report (PEL) for granting permission to reprint this abstract from the May 2008 issue. For more information about PEL see, http://www.planning.org/PEL/index.htm

A new report by Phyllis Myers entitled, Direct Democracy and Land Use: Eminent Domain and Big Box Development at the Local Ballot Box, was recently published by the Initiative and Referendum Institute (IRI), USC-Caltech Center for the Study of Law and Politics and USC School of Law. What follows is information from a press release announcing the publication.

Citizens are playing a prominent role in ballot-box decisions affecting the pace, quality, and shape of growth, according to Direct Democracy and Land Use: Eminent Domain and Big Box Development at the Local Ballot Box.  At a time when voter registration and political engagement are on the rise, the report provides a roadmap to the authority of many Americans to place land issues on the ballot.

This report presents the results of a unique survey of recent local ballot proposals on eminent domain, regulatory takings, and big box development. The measures reflect the transformative impact of large-scale development and pressures on traditional institutions and planning systems.  The 114 measures identified in the report, part of a larger group of measures proposed, threatened, or derailed by court actions, were distributed throughout the country.     

Most of the proposals to limit eminent were referred to ballot by local officials after the Supreme Court’s Kelo decision, and, like their state counterparts, were virtually all approved.  Big box ballot measures were primarily petitioned by residents or, increasingly, by developers to challenge adopted zoning decisions.  Measures were about evenly divided between proposals to limit or accommodate big box stores, with a similar success rate (about half) for each type.  Few regulatory takings ballot measures appeared on local ballots.

These measures helped stimulate conversations and site-specific and policy changes within communities and at the regional, state, and national levels as well.  The issues they raised continue to resonate as ballot measures and legislative proposals, some to expand or limit referendums on land issues, are shaped for 2008 and beyond.

The report was funded in part by a grant from the John Randolph Haynes and Dora Haynes Foundation to the Initiative and Referendum Institute together with the USC-Caltech Center for the Center for the Study of Law and Politics.

If you would like a copy of the report, please contact Phyllis Myers at srsmyers@earthlink.net

The petitioner, owner of three adjacent parcels, operates a marina on Canandaigua Lake, and challenged the zoning board of appeals determination to allow the adjacent parcel owner to build a dock off of the shoreline. The petitioner asserted that pursuant to the Canandaigua Lake Uniform Docking and Mooring Law (UDML), a dock, such as the one on the adjacent parcel, “shall be placed within the water rights line of the parcel so as not to interfere with the lakeshore usage of adjacent parcels,” and that here, the zoning board did not properly calculate the water rights line.  The UDML provides that water rights are to be calculated by determination “the four points where the mean high water mark intersects that property lines of the parcel and the two adjoining lakeshore parcels…”  The zoning board rejected the petitioner’s contention that the water rights line should be calculated using the northernmost property line owned by the petitioner since all three of its adjacent parcels had to be considered as a whole.  Rather, the zoning board determined that the water rights line must be calculated based upon a reference point to a single adjacent parcel as defined by a tax identification number. The zoning board found that as constructed, the dock at issue satisfied this requirement.

In upholding the determination of the zoning board of appeals, the New York Appellate Court said that the interpretation of  the UDML requires the expertise of the zoning board appeals rather than pure statutory construction, and that here the board’s interpretation was entitled to great weight and judicial deference.  The Court concluded that the board’s decision had a rational basis and was supported by substantial evidence.           

Pelican Point LLC v. Hoover, 2008 WL 1838303 (N.Y.A.D. 4 Dept. 4/25/2008).

The opinion can be accessed at:

http://www.courts.state.ny.us/ad4/court/Decisions/2008/04-25-08/PDF/0424.pdf

The petitioner’s application for certain setback and area variances needed to maintain an existing cabana and retaining wall was denied by the zoning board of appeals.  Both the cabana and the retaining wall were completed prior to the Town amending its zoning ordinance, which makes the uses nonconforming since the cabana height is 14.97 feet and the new limit if 14 feet; and the retaining wall was set back less than one foot from the property line and the new regulation requires a minimum four foot setback.  Although the petitioner never obtained a building permit for the cabana and retaining wall, the petitioner did apply to the zoning board of appeals for “permission to maintain” these improvements. The Trial Court granted the petition seeking to annul the determination of the zoning board of appeals.

In upholding the Trial Court’s decision, the Appellate Court noted that the general rule in New York with respect to nonconforming uses or structures in existence when a zoning ordinance is enacted, is that they are constitutionally protected and will be permitted to continue. Since both the cabana and the retaining wall complied with the requirements at the time they were constructed, the Court said they are entitled to nonconforming status even though the petitioner failed to obtain a building permit prior to construction.  Citing prior precedent, the Court said, “[a] use which is otherwise lawfully maintained may be continued as a nonconforming use although the user failed to procure or renew a license, certificate, or other permit required by law.” See, Matter of Kennedy v. Zoning Bd. of Appeals, Town of N. Salem, 205 A.D. 2d 629, 631.  

Further, the Appellate Court agreed that the variance denial by the zoning board of appeals lacked a rational basis.  The Court noted evidence presented at the hearing that demonstrated that the impact of the request variance was de minimis and that there was no evidence that it would cause a detriment to the health, safety or welfare of the community.

Cinelli Family Ltd. Partnership v. Scheyer, 2008 WL 1903553 (N.Y.A.D. 2 Dept. 4/29/2008).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19081.pdf

An application for a proposed three lot subdivision was denied by the planning board following a public hearing where many neighbors and adjacent landowners expressed concerns over potential drainage and flooding problems.  The petitioner alleged that the planning board had previously issued a negative declaration pursuant to the required environmental review finding no significant impact on the environment, and that the subsequent denial was due only to generalized community opposition, which alone, cannot justify the denial.

The Appellate Court first resolved that there was no inconsistency between the negative declaration finding no significant adverse impact would result from the proposed development, and a determination that there could be adverse effects associated with drainage and flooding problems. Citing to N.Y. Village Law §7-730(1), the Court noted that planning boards shall require a showing that the land proposed for subdivision can be used safely for building purposes “without danger to health or peril from fire, flood, drainage or other menace…” In addressing the allegation of generalized community opposition, the Court noted that the neighbors and adjacent landowners had firsthand knowledge based upon their experiences of the recurring drainage problems in the area, including flooding of streets and basements.  Further, the Village engineer had expressed some concerns regarding the development of the property and its impact on drainage.  The applicant’s engineer believed that the proposed development would have little effect on the existing draining conditions. Acknowledging that the facts in this case were close, the Court said that this is exactly the kind of fact-specific decision that planning boards are supposed to make, and where as here, there was a rational basis o support the board’s denial, it will be upheld even though a contrary determination could also be supported in the record.

MLB, LLC v. Schmidt, 2008 WL 1821537 (N.Y.A.D. 3 Dept. 4/24/2008).

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503562.pdf

Landmark Development Group, LLC applied to the Town Board to have approximately 210 acres zoned for one-acre residential approved as a planned development district (PDD).  The developer plans to build 170 lots on about 55 of the 210 acres, with the remaining land to be open space owned by a homeowner’s association. The Town’s zoning ordinance provided for the PDD as a floating zone, meaning that its boundaries are not fixed in the original ordinance, but are established by a later amendment to the zoning map. Following an environmental review with full opportunity for public input, the Town Board passed a resolution approving the PDD subject to various conditions. The petitioners sought to annul the resolution, arguing that it violated the doctrine of legislative equivalency and that the PDD can only be sited as a floating zone if the Board amends the legislation in the same manner in which the zoning ordinance was initially adopted.

The Court disagreed with the petitioners, explaining that the floating zone was already part of the existing zoning ordinance. The Court noted that the floating zone is a common and preferred method for creating a PDD and that the two-step legislative process includes the initial ordinance  that outlines procedures for a PDD without setting boundaries, and then an amendment to the zoning map and/or ordinance to place the PDD once it is approved. The Court noted that in this case, the petitioners commenced the proceeding before the second step was completed by the Town. However, everything that the Town has done with respect to this application and the siting of the floating zone to date have been appropriate. The Court further commented that since the commencement of the proceeding, the Town did enact an ordinance (i.e., a legislatively equivalency act) amending the zoning map to reflect the placement of the PDD.

Brunswick Smart Growth, Inc. v. Town Bd. of Town of Brunswick, 2008 WL 1902089 (N.Y.A.D. 3 Dept. 5/1/2008).

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503677.pdf

Ordinarily, challenges to the issuance of decisions regarding building permits are to be made to the zoning board of adjustment prior to taking an appeal to the superior court.  In the present case, the McNamaras alleged that they purchased their home not knowing that a building permit had been issued to the Hershes on the abutting lot.  When the Hershes began construction in mid-October 2005 the McNamaras did not appeal the decision to issue to building permit to the zoning board of adjustment, rather, in August 2006 they sought a declaratory judgment from the Court that the building permit was unlawfully issued (since the local ordinance only permitted building on 10% of the land but the permit allowed building to cover 13% of the land) and was thus void. The trial court dismissed the petition. 

The Supreme Court held that the McNamaras failed to exhaust their administrative remedies when they chose not to appeal to the zoning board of adjustment.  The Court noted that the alleged error - that the permit violated the ordinance - is an error that is within the power of the zoning board to correct. Further, the Supreme Court agreed with the trial court that the McNamaras failed to bring their claim within a reasonable period of time.  Therefore, the Court upheld the dismissal of their declaratory judgment petition.

McNamara v. Hersh, 2008 WL 899243 (N.H. 4/4/2008).

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/mcnam031.pdf