Throughout 2005 and 2006, building permit applications by Tomlins were continually denied.  In July 2006, the Village code enforcement officer denied an application because “the house’s lot coverage and setback measurements did not conform to the Village zoning code.”  Between August 2006 and July 2007, several zoning variance applications were filed with the ZBA, one of which was granted.  John Fenton, in May 2007, took over as the Village’s code enforcement officer and building inspector.  Fenton initially removed the order of unsafe condition after inspecting the house, but in late 2007 he issued a stop-work order and posted the house as unsafe, thereby preventing Tomlins from occupying it.

After further rounds of denied applications, in October 2008, the ZBA granted the requested variances on a number of conditions.  Among others, the ZBA required that Tomlins remove all outdoor storage sheds, remove insulation above the attic floor level or stairs ascending to the attic, and that she obtain a certificate of occupancy before occupying the house.  In November 2008, Tomlins filed a complaint in District Court against the ZBA and Fenton (Village building inspector) for violating her substantive due process rights, against Fenton for denying her equal protection under the law, and against both Fenton and the ZBA for “retaliating against her for her prior use of the courts under the First Amendment.”  Defendants moved for summary judgment.

After deciding that neither the ZBA nor Fenton qualified for quasi-judicial immunity, the Court dismissed Tomlins substantive due process claim.  Tomlins was not “entitled” to the building permits or zoning variances because they were denied on “legitimate, non-arbitrary grounds” and the Defendants had “wide discretion in deciding” to deny them.  The Court also dismissed Tomlins’ Equal Protection claim against Fenton for failure to “raise a triable issue of fact as to a causal connection” between Fenton’s actions in 2008 and the state court proceeding she brought against the ZBA in 2004.  There was no proof that Fenton knew of the state court proceeding, as he was not employed by the Village until 2007.

Tomlins’ First Amendment retaliation claim against the ZBA, however, was not dismissed.  The Court found that there was evidence of “an ongoing course of adverse action” by the ZBA against Tomlins “sufficient to create a fact issue for trial.”  The ZBA had deviated from its standard procedure, and acted without authority, when it required that Tomlins obtain a certificate of occupancy after the state court had vacated the order revoking said certificate.  Further, the ZBA treated Tomlins “differently than other variance applicants” when it conditioned her variance on the removal of storage sheds, attic insulation, and attic stairs.  Finally, because the ZBA imposed additional “and seemingly increasingly unreasonable procedural requirements” upon Tomlin with each successive variance application, the Court allowed the claim to stand.

Tomlins v. Village of Wappinger Falls 2011 WL 2714213 (S.D.N.Y. 7/8/11)

On appeal, the Fifth District of Illinois’ Appellate Court considered the issue of the City’s authority, as a “non-home rule” unit of government, to prohibit TriPower from drilling for oil within City limits.  A “non-home rule” governmental unit is granted authority by statute, and is limited to “those powers specifically conveyed by the constitution or by statute.”  The City’s zoning code neither expressly prohibits the drilling or operation of gas/oil wells, nor includes such activities as “special” or “permitted” uses.  All other uses are “deemed prohibited,” thus, drilling and/or operating a gas or oil well within city limits is “precluded [from the list of permissible uses] by exclusion.”  

TriPower alleged that the City lacked the authority to prohibit the drilling of an oil well within its borders, and attempted to justify this argument using section 13 of the Illinois Oil and Gas Act (hereinafter “the Act”).  Section 13 of the Act authorizes the Department to issue drilling permits, but only upon receipt of official consent of the relevant municipality.  TriPower claimed the City has only the power to regulate (and consequently, lacks the power to prohibit) drilling under this section.  The Court, in analyzing the scope of the City’s statutory authority, examined the consent power of the City and its implications for Section 11-56-1 of the Illinois Municipal Code (hereinafter “the Code”), which states that local municipal governments “may grant permits to mine oil or gas.”  The Court quickly distinguished precedent offered by TriPower to support a restrictive interpretation of the City’s authority over drilling permits, emphasizing the City’s power to consent to such permits, a power expressly delegated to local governments by the text of the Act. 

TriPower then attempted to argue that “consent” only referred to the municipality’s determination of whether conditions or restrictions on the permitted activity had been satisfied, but the Court disposed of this argument, noting that the power to give consent “necessarily entails . . . the power to deny the same.”  The Court explained that the plain meaning of this statutory language allows municipalities to prevent the Department from issuing a permit for activities to occur within municipal limits.  

As a result, the Court affirmed the lower court’s decision in favor of the City, holding that a “non-home rule” governmental unit may prohibit the drilling or operation of gas or oil wells within its municipal limits. [The Court declined to consider TriPower’s entitlement to compensation or whether, the City may prohibit TriPower from drilling under the Department-issued permit, before annexing the property.] 

Tri-Power Resources, Inc. v. City of Carlyle, 2012 WL 34253 (Ill. App. 5 Dist., 01/06/2012) 

The opinion can be accessed at: http://www.state.il.us/court/opinions/appellatecourt/2012/5thdistrict/5110075.pdf

The ordinance required a license to operate an adult establishment. Among other things, the license application form is required to list the hours of operation, which are limited by the Ordinance to Monday through Saturday, 10:00 a.m. to 12 midnight, a fee of  $7,500.00 per year for an adult establishment (which was allegedly based on the estimated costs of responding to calls at Heartbreaker’s, including $3,000 for police calls, $4,000 for garbage cleanup, $450 for background checks, $200 of administrative costs, and $270 for first responder calls).

The Ordinance also provided that:

(1) No owner, operator, or manager of an adult entertainment center shall permit or allow any dancer or other live entertainer to perform nude.

(2) No dancer, live entertainer, patron or any other person may be nude in an adult entertainment center.

(3) No dancer, live entertainer or performer shall be under 18 years old.

(4) All dancing or live entertainment shall occur on a platform intended for that purpose and which is raised at least two feet from the level of the floor.

(5) No dancer or performer shall fondle, touch, or caress any patron and no patron shall fondle, touch, or caress any dancer or performer.

 (6) No patron shall pay or give any gratuity directly to any dancer or performer.

(7) No dancer or performer shall solicit any pay or gratuity from anypatron. 

For an adult use ordinance to be valid it must be content neutral and designed to serve a substantial government interest.   The Court found that the City’s ordinance focused on reducing the negative secondary effects of Heartbreakers, which includes trying to counter the “increased crime rates, lower property values, increased transiency, neighborhood blight, and potential health risks,”  and that therefore the goals of the regulation were content-neutral. 

However, with respect to secondary effects, the District Court agreed that the evidence used by the City to support its finding was inadequate. The City used studies from other communities with adult establishments as evidence to support secondary problems that occur because of the existence of these uses. The Court noted that because Heartbreakers has been an adult establishment in the City for seventeen years, the City should have used studies from its own City as evidence of the negative secondary effects of the adult establishment at issues rather than relying on other communities.  The Court, in denying the City’s summary judgment motion, noted it was not passing on the overall validity of the Plaintiff’s case.  Whether the licensing fees were appropriate also remains an open question. 

Flirts Inc. v. The City of Harris, Minnesota , 796 F. Supp. 2d 974 (4/21/ 2011). 

The opinion can be accessed at: http://courtops.org/wp-content/uploads/2011/05/Harris_10113637379.pdf

Criminal informations were filed against the plaintiff in December 2006.  Other court appearance tickets were issued to the plaintiffs through 2007, 2008, and again in 2010.  In 2008, the town reassessed plaintiff’s property and raised the taxes substantially.  Plaintiff filed this action alleging that there was no probable cause to issue the tickets and, further, that the sole purpose was retaliation for the plaintiff’s political support of the assembly candidate. 

First, plaintiff alleged defendant had no probable cause for issuing the tickets against plaintiff and, thus, it must have been based on plaintiff’s political support.  The court found that plaintiff was in violation of the zoning laws and further that defendant’s letter was sent prior to any campaign donations.  Although the plaintiff asserts support of the candidate before the first letter was sent, the court found this argument implausible and insufficiently plead.  Thus, the court found that the defendant had probable cause for issuing the tickets and informations.  

Next, the plaintiff alleged malicious prosecution by defendants.  The court explained that a malicious prosecution requires the plaintiff to show seizure.  Seizure can be shown by either proving a liberty was deprived or that an unreasonable search of property occurred.  Here, the court found plaintiff had shown neither, thus, there was no seizure and no basis for a malicious prosecution claim.  Similarly, the court found that probable cause existed and that the plaintiff failed to show malice by defendants.  Thus, the plaintiff failed to prove any element of malicious prosecution. 

The court quickly dismissed the plaintiff’s abuse of process claim because of plaintiff’s failure to allege any plausible facts of defendant’s intent to harm them.  The court next discussed plaintiff’s First Amendment retaliation claim; retaliation for political speech.  The court again dismissed this claim for two reasons.  First, the court found that purchase of a parcel of land is not protected speech under the First Amendment and also because plaintiff has failed to present a causal connection between the plaintiffs political support and alleged retaliation as defendant’s letter was sent prior to plaintiff’s contribution. 

The court dealt next with plaintiff’s claim of selective enforcement.  The court asserted that in a successful selective enforcement claim, the plaintiff must give specific persons who are similarly situated but treated differently.  Plaintiff, found the court, failed to present specific persons, instead making conclusory statements alleging selective enforcement.  Although the court found plaintiff has standing to bring a 1983 challenge to a tax assessment in the district court, the court held that they again failed to prove this claim.  Finally, the court found that the prosecutor had prosecutorial immunity and was acting in his official capacity in prosecuting the plaintiff’s zoning violations.  Thus, the prosecutor was immune from civil liability.  In concluding, the court said punitive damages were unavailable for 1983 actions against municipalities and refused to award them. 

Parkash v. Town of Southeast, 2011 WL 5142669 (S.D.N.Y. 9/30/2011) 

The opinion can be accessed at: http://web2.westlaw.com/find/default.wl?rs=WLW11.10&rp=%2ffind%2fdefault.wl&vr=2.0&fn=_top&mt=208&cite=2011+wl+5142669&sv=Split

In this action, Greenways was joined by plaintiffs Marion Torres and Jaime Torres, minorities wishing to move into the Township but who cannot afford the housing.  Plaintiffs assert that the Township has refused to allow the proposed development because of racial and anti-semetic  discrimination.  The Township moved for summary judgment. 

Plaintiffs presented affidavits and depositions of people who heard two separate mayors using racial slurs.  One mayor, who also served on the planning board, was alleged to have used derogatory language regarding minorities, specifically African Americans with respect to affordable housing.  Multiple witnesses heard the mayor making comments regarding affordable housing and minorities on various occasions.  The second mayor was also heard making discriminatory, specifically anti-semetic, comments on multiple occasions.  The court found that these sworn statements establish a prima facie case that the Township’s actions were intentionally discriminatory.  

Despite defendants arguments, the court explained that discriminatory intent or impact claims are ripe even where an approval from a local land use board has not been sought.  Second, the court found that the plaintiffs are aggrieved parties because they either have been or are going to be injured despite not having actually applied for housing.  Finally, the court found that the Fair Housing Act may apply despite the lack of disparate impact because an FHA violation may be based on discriminatory intent. 

Therefore, the court holds that the plaintiffs  presented sufficient evidence of a racial animus by members of the board to survive a motion to dismiss. 

Torres v. Franklin Township, 2011 WL 6779596 (D. N.J. 12/ 22/2011) 

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=16883637814766017233&q=torres+v.+franklin+township&hl=en&as_sdt=2,33

EEEA entered into an agreement with Verizon by which Verizon allowed the plaintiffs to attach the lechis to utility poles in all the districts.  The town of Southampton has a sign ordinance which requires a permit for any sign in the village and prohibits signs on any telephone or utility pole.  Southampton asserts that the lechis is a sign both because it “demarks and area” and because it “sends a message” as part of the eruv.  Plaintiffs argues that Southampton does not strictly enforce its sign ordinance, and presented evidence that it allowed up to six signs to remain posted over an eight month period.  Defendant town sent Verizon a letter explaining their view that the addition of a lechis would fall under their sign ordinance and Verizon would need to obtain a permit to construct.  Neither Verizon nor the plaintiff, however, ever applied to Southampton for a permit.  

The village of Westhampton Beach determined that the lechis is not a sign under their ordinance, however, the village sent a similar letter to Verizon indicating that the village must approve the lechis.  Further, trustees of the village indicated previously that they opposed the construction of the eruv.  Finally, the village Quogue similarly argues that the plaintiff must obtain permission before attaching any lechis because the construction constitutes an encroachment.  Plaintiff argues that the lechis are not an encroachment and, thus, the village code should not apply and also that the village only selectively enforces its code.  After some perceived resistance from municipalities, plaintiffs filed a preliminary injunction seeking the court to allow the eruv. 

The court began its analysis by dealing solely with the Southampton defendants.  First, the court dealt with defendant’s contention that the claim is not ripe.  The court found that since neither Verizon nor the plaintiff had applied for a permit or variance, and subsequently have not appealed any decision, the claim is not ripe for the district court.  Although plaintiffs argued the claim is ripe because any attempt would have been futile, the plaintiffs failed to prove that the town was legally opposed to the eruv such that any application would be futile. 

Next the Court considered whether to grant the preliminary injunction, i.e. whether the plaintiffs have shown a likelihood of success on the merits.  First, the court considered the Free Exercise of Religion claim.  Since the sign ordinance in Southampton is neutral, to receive strict scrutiny, the court explained, the plaintiff must show that the town selectively enforced its sign ordinance.  The court found that plaintiff’s allegations of selective enforcement were unfounded and although there were some signs around the town, plaintiff showed no relation to religious purposes.  Thus, plaintiff had a low likelihood of success on the merits.  Next, the court looked at the preliminary injunction under the RLUPIA claims.  Here, the court found that the plaintiffs had no property interest in any land, and thus, the rule was inapplicable.  Although plaintiff had an agreement with Verizon, this sublicense, finds the court, does not grant a property interest in the land.  Thus, again, plaintiff’s likelihood of success on the merits was low.  Finally, the court examined plaintiff’s tortuous interference claims.  Since plaintiff had not shown any breach of the contract between EEEA and Verizon, again, the court finds plaintiff has a low likelihood of success on the merits.  Thus, the court dismissed the application for a preliminary injunction in Southampton.  

Finally, the court turned to the Quogue and Westhampton defendants.  The court explained that since the proposal had the eruv traveling through all three municipalities, the relief sought by the plaintiff depended on the outcome of the Southampton decision.  The refusal to allow the eruv in any one municipality effectively disallowed construction.  Thus, since the court had not granted the preliminary injunction in Southampton, they court dismisses plaintiff’s claims against Quogue and Westhampton without prejudice.  The court did indicate, however, that before re-filing with court, plaintiff should propose their eruv plan to each village.  

East End Eruv Ass’n, Inc. v. Village of Westhampton Beach, 2011 WL 6156802 (E.D.N.Y. 11/3/2011) 

The opinion can be accessed at: http://web2.westlaw.com/find/default.wl?rs=WLW11.10&rp=%2ffind%2fdefault.wl&vr=2.0&fn=_top&mt=208&cite=2011+wl+6156802&sv=Split

New York Blue Line Council, Inc. v. Adirondack Park Agency; Clinton County v. Adirondack Park Agency, 927 N.Y.S.2d 432 (3d Dept. 7/14/2011).

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2011/510786.pdf

This slightly edited abstract appears in Environmental Law in New York (November 2011).

The court rejected the plaintiff’s procedural due process claim finding that the letter dated December 3, 2010 informed the plaintiff of the violation and the possibility of the revocation.  A pre-deprivation evidentiary hearing is not necessarily required to satisfy procedural due process.  The court must consider three factors in determining whether the plaintiff was given an opportunity to be heard: the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used and the probable value of additional or substitute procedural safeguards; and the government’s interest that the additional or substitute requirements would entail.  Here, the order to remedy clearly informed the plaintiff of his right to seek review and the methods by which to seek it.  Additionally, the revocation letter of January 21, 2011 informed the plaintiff of his right to apply for a variance which would have entitled him to an evidentiary hearing.  The court concluded that the plaintiff has a meaningful and adequate opportunity to be heard.  

A substantive due process claim requires that the plaintiff must plead that “a constitutionally-cognizable property interest is at stake” and defendants’ “alleged acts against [the] land were arbitrary, conscious-shocking, or oppressive in the constitutionally sense, not simply incorrect or ill-advised.”  A constitutionally cognizable property interest is established by the plaintiff demonstrating a clear entitlement to the benefit in question.  In New York, a “vested right in a certificate of occupancy may arise where a landowner demonstrates a commitment to the purpose for which the certificate was granted by effecting substantial changes and incurring substantial expense to further the development [of the property].”  The reliance on the certificate must be so substantial that the resulting loss renders the improvements to the property essentially valueless.  The plaintiff presented insufficient evidence to support this claim and the court dismissed without prejudice.  

Ceja v. Vacca, 2011 WL 6097143 (S.D.N.Y. 12/7/2011) 

The opinion can be accessed here

The court noted that the plaintiff must show that prior to commencing the lawsuit: 1) it had “obtain[ed] a final, definitive position as to how it could use the property from the entity charged with implementing the zoning regulations,” and 2) that it sought compensation for the alleged taking before going to federal court.  This applies to both regulatory and physical takings.  Under this precedent, if a State provides an adequate procedure to seek just compensation, a property owner may not claim a violation until it has sought and been denied just compensation.  Under New York law there are two provisions under which a property owner may seek just compensation.  The New York State Eminent Domain Procedure Law and Article I, Section 7 of the New York State Constitution.  Therefore, the Court dismissed the plaintiffs’ takings claim for failure to allege that they had availed themselves of any state procedures to obtain just compensation for the alleged taking.

Viteritti v. Incorporated Village of Bayville, 2001 WL 5838485 (E.D.N.Y. 11/21/2011) 

The opinion can be accessed here

Under the City Code, the Board of Zoning Adjustment may grant variances “where there are practical difficulties or unnecessary hardship in the carrying out of the strict letter” of the law.  Missouri law requires that the plaintiffs must show practical difficulties preventing them from using their property for a permitted use in order to obtain a non-use variance.  The practical difficulties must be conditions related to the land and not conditions that are personal to the property owners.  Factors used in determining whether practical difficulties exist include how substantial the variation is in relation to the requirement; the effect, if the variance is granted, of any resulting increased population density on available government facilities; whether there will be a substantial change in the neighborhood’s character or a substantial determine will be created to the adjoining properties; whether the difficulty may be obviated by a method other than a variance; and whether,  considering all of the other factors, the interests of justice would be served by allowing the variance.  

The Court of Appeals found that the Board did not abuse its discretion in determining that the plaintiffs failed to meet their burden in showing practical difficulties existed to warrant the variance.  The evidence showed that the proposed carport, when combined with the existing garage, would be roughly equal to the total square footage of the house.  Additionally, the reason the existing garage was unusable was because it was full of “forty-five years of stuff.”  Based on this evidence, the Court of Appeals found that the Board’s decision to deny the variance was not against the weight of the evidence or an abuse of discretion.  

Brown v. City of Maplewood, 2011 WL 6366484 (Mo.App. 12/20/2011) 

The opinion can be accessed here