Under former holdings by the State and United State Supreme Courts, time, place, and manner restrictions were warranted for sexually-oriented businesses.  Thus, there must be “adequate alternative channels” for the operation of the business that are also “within the relevant market.” At the trial court level, both the borough and the defendants offered expert testimony about the adequacy of alternative locations.  The borough’s expert offered evidence of available locations including Staten Island, New York.  The trial court ultimately agreed with the borough, finding that there were enough alternative locations and upholding the application of the statute.  The appellate division reversed the decision by the trial court, disagreeing with the trial court’s decision to consider Staten Island, New York as an alternative location.  The appellate court specifically determined that a place a business had no political ties to could not be included as an available market.  Since there was a dissent on this issue, the question of whether a trial court can consider alternative locations outside the borders of the state became the issue before the New Jersey Supreme Court here. 

The court began its analysis by explaining that First Amendment rights in sexually-oriented businesses could be restricted by statutes such as the one in New Jersey.  The court next explained that the statute is tested by a “regional market” and, thus, concluded that a neighboring state may be considered as part of that market.  The court presented five reasons for its decision.  

First, the court found it may actually be more convenient for residents to travel outside of the state; many New Jersey residents often travel to New York for employment and other entertainment.  Second, explained the court, there was evidence presented that citizens often travel out of state for this type of entertainment.  Third, the statute left the evaluation of suitable alternatives in the hands of experts; these experts should determine how to define a region.  Fourth, the court found that restricting the market to only municipalities is an unfair treatment to businesses in municipalities on the boarder of another state since their scope is limited.  Finally, the court refuted the argument that businesses do not have any influence over the laws in other states by explaining that this ignores the fact that they also do not necessarily have influence on other municipalities in New Jersey. 

The court concluded by explaining that they intend this opinion to be narrowly read.  Thus, if all or even most viable alternatives are in another state, this opinion would not apply and the restriction would likely constitute a constitutional violation.  

Sayreville v. 35 Club, LLC, 2012 WL 143604 (NJ 01/19/2012) 

The opinion can be accessed at: http://www.judiciary.state.nj.us/opinions/supreme/A6610BoroughofSayrevillev35Club.pdf

The Guses argued that the ordinance is unconstitutionally vague, that the city’s denial was arbitrary and unreasonable, and that the refusal to grant their application was discriminatory.  The Guses appealed the council’s decision to the trial court.  The trial court reversed and the city appealed.  

The Wisconsin appeals court first looked at whether the ordinance was unconstitutionally vague.  The court explored decisions from the Wisconsin supreme court and determines that the rule for an unconstitutionally vauge ordinance is that an ordinance “may vest boards with some (and even significant) discretion,” however, an ordinance may not grant a board “unfettered discretion.”  Here, the court found that there were specific standards for the board to consider, including specific criteria about the size of existing lots and the length of time the subdivision has existed.  Thus, the court holds that the ordinance was not unconstitutionally vague. 

Next, the court discussed whether the application was arbitrary or lacking in a rational basis.  The court found that since the burden is on the Guses, the Guses have failed to prove an arbitrary act by the council.  Although the Guses argued that the lots across the street are much smaller, the court held that inconsistency does not prove an arbitrary act. 

Finally, the court considered the Guses’ argument that the city’s application of the ordinance was discriminatory.  The Guses argued that other, similar, applications were granted by the council and resulted in smaller lot sizes.  The court found, however, that the assertions were not supported by any evidence in the record.  There was no indication that any granted application resulted in lot sizes smaller than the average in the area. 

Thus, the court reversed the trial court’s decision and upholds the decision by the council. 

Guse v. New Berlin, 2012 WL 130386 (Wis. App. 01/18/2012) 

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=76635

The due process claim in this case was predicated on the theory that the waivers under Measure 37 granted constitute “contracts” with the relevant stated local government which cannot be impaired and that plaintiffs’ approved a “cause of action” for just compensation is a property interest protected by the federal constitution.

The original trial court decision in one case (Citizens for Constitutional Fairness v. Jackson County) found a valid contract impairment claim which could not be terminated for Separation of Powers reasons.  That decision was reversed by the Ninth Circuit and ultimately the trial court dismissed the matter on remand.  In the other case (Bowers v. Whitman) the trial court dismissed all constitutional and other claims based on the Ninth Circuit’s decision in Citizens for Constitutional Fairness.

In the absence of factual disputes, the Court reviewed the legal issues in both cases on a de novo basis and turned first to the issue of whether the accrued claims were “property,” recognizing that the term is not created by the Federal Constitution but springs from state law or other understandings of benefits or claims of entitlement.  The court said that sometimes property interests are not vested and can be deprived if procedural due process be given.  However, if the property line is vested, then just compensation must also be provided.  In this case there was no procedural due process claim, so the court turned to the question of whether the property interest were vested, which depended upon the expectations of that interest.  If the interest were “contingent or uncertain” or it seemed speculative or discretionary, then its deprivation would not be viewed as “taking” a vested right.  The court held that plaintiffs failed to show their rights were “vested,” noting that plaintiffs’ counsel were unable to articulate whether a favorable ruling would entitle them to money or land use rights.  The court said that plaintiffs were “unable to provide a clear answer and argued essentially for both.”  The court found those responses “reflects their uncertainty of the property interests upon which they rely.”

Plaintiffs stated at times that their rights were in an accrued cause of action, but the court responded that such an action does not vest until there was a favorable and unreviewable judgment; until then, such a right is inchoate and does not provide an expectation of a property interest.  The Measure 37 waivers in this case were administrative decisions, rather than court judgments and do not entitle plaintiffs to any particular use of their property so as to constitute a protected property interest.  While government entities waived certain land use regulations, they did not entitle recipients to develop their property in a particular way as an alternative to their just compensation claims, noting that the waivers in these cases express that limitation.  The waivers were also not self-enforcing so as to entitle a property owner to a certain amount of compensation as the public entity continued to apply regulations to the property – the only relief was a later state cause of action, rather than a final judgment.  Those waivers did not involve a property interest protected by the Takings Clause as they did not provide the requisite certainty to vest their entitlement.  Without that certainty, the interest may be altered or abolished by changing the rule, law or regulation granting that interest. 

The court noted that there was no express and unequivocal commitment to provide compensation, as the public entities could either provide compensation or waive the regulation – thus there was no unequivocal monetary commitment and neither the state nor the local governments made an unequivocal grant of an unfettered right to develop the property for which waivers had been granted. 

Moreover, because there was no commitment to a particular land use, those land use rules may be changed at any time, precluding a vested rights claim.  Under Williamson County Regional Planning Commission v. Hamilton Beck, 473 US 172 (1985) the Measure 37 claims must also be ripe and pursued in state courts before resort may be had to federal courts.  Plaintiffs must also explore available remedies to determine whether they have a vested right.  Because plaintiffs still have available potential remedies, these claims are not ripe.  Even if they were ripe, plaintiffs must also show that they relied on those claims to their detriment. 

The two constitutional claims remained.  The court disposed of the substantive due process claim finding that Measure 49 did not involve fundamental rights and is thus not subject to heightened scrutiny.  Moreover, if the action at issue is at least debatable, there is no violation of substantive due process by retroactive legislation if there were a legitimate public purpose accompanied by legitimate means.  In this case and in view of the high number of Measure 37 claims, it was rational for the Oregon legislature to determine the cost of Measure 37 was too great – either to taxpayers or to the detriment of natural resources.  Nor did Measure 49 violate equal protection, as no fundamental right or suspect classification is involved and the legislation passes muster under the “rational basis” standard.  In the area of economic and social welfare, even if it be imperfect, legislation does not violate equal protection if it has a rational basis…  The dismissal of the constitutional claims against Measure 49 was thus affirmed.

Unless the United States Supreme Court grants certiorari, the constitutional challenges to Measure 49 appear to be at an end.

Bowers v. Whitman, 2012 WL 89257 (9^th Cir. 1/12/2012).

It is well established that religious and educational institutions, whether public or private, enjoy special treatment with respect to zoning ordinances, because of their inherently beneficial nature. Further, the East Hampton court points out that religious and educational institutions are recognized as facilitating the very same objectives as zoning ordinances themselves (fostering the public health, safety, morals, and general welfare). This presumed beneficial impact can only be rebutted with evidence of significant impact on the public, which was missing in this case. 

The East Hampton ZBA asserted that although the library was chartered by the University of the State of New York and may be treated as an educational institution for some purposes, it should not be considered so for zoning purposes or under SEQRA. The Supreme Court disagreed.  Reversing the ZBA’s variance and special permit denials, the court found that the library was an educational institution and, as such, entitled to the same deferential treatment in zoning accorded to schools and religious institutions. 

The court also annulled the ZBA’s SEQRA findings statement, stating that the library’s submissions reference 6 NYCRR § 617.5 and clearly establish that the proposed addition constitutes a Type II action under SEQRA. Under 6 NYCRR § 617.5(c)(8), routine activities of educational institutions, including the expansion of existing facilities by less than 10,000 square feet, constitute Type II actions exempted from environmental review. As an interesting result of this case (or rather, a result of the ZBA’s complete disregard of the letter issued by DEC – the very agency charged with SEQRA enforcement), the DEC amended its published SEQRA Handbook so as to emphatically state that, for purposes of 6 NYCRR §617.5(c)(8), educational institutions include all schools and libraries chartered and/or registered by the State Board of Regents. 

 East Hampton Library v. Zoning Bd. of Appeals of Village of East Hampton, 31 Misc. 3d 1231(A) (5/17/2011) 

Thanks to Jennie Nolon, Esq. of the Land Use Law Center at Pace University School of Law for sending in this abstract.

In Middletown, the Enlarged City School District of Middletown applied for a permit to connect the District’s proposed new elementary school to the City’s sewer line. The City, which was obligated by an Order on Consent with DEC to rehabilitate portions of its sewer system, required, as a precondition to its consideration of the application, that the District pay to reconstruct, repair, or replace 3,300 feet of sewer pipeline extending well beyond the school property and servicing both private individuals and developments. 

Granting relief to the District in a hybrid Article 78 proceeding / declaratory judgment action, the Supreme Court concluded that although a city may impose certain conditions before granting approval of a development project, it may not require an applicant to make off-site improvements to public infrastructure. In the same breath, the court clarified that a city may, however, impose a “hookup fee” for certain costs of construction of a replacement sewer line, if one is necessitated by the proposed building (not by future growth of the city generally), but only to the extent proportionate to the applicant’s usage of that sewer line relative to its total capacity. 

 Enlarged City School Dist. of Middletown v. City of Middletown, 30 Misc.3d 1233(A) (1/26/2011) 

Thanks to Jennie Nolon, Esq. of the Land Use Law Center at Pace University School of Law for sending in this abstract.

The town prevailed on a motion to dismiss for failure to state a cause of action, because erroneously issued permits do not create property rights for which aggrieved parties can seek damages. Citing Orangetown v. McGee, the Supreme Court noted: “In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development.” Vested rights cannot be created in reliance upon an invalid permit; an erroneously issued permit does not estop a municipality from correcting errors, even where there are harsh results.  A court may apply these rules even where the plaintiff was not involved in the building or construction of a structure. Adopting the principal articulated in McGee and other cited cases, the court concluded that towns have the right to revoke erroneously issued permits and may not be held liable in damages when building inspectors erroneously issue such permits or subsequently decide to revoke them. 

Designer Limousines Inc. v. Town of North Hempstead, 32 Misc. 3d 1212(A) (7/10/2011). 

Thanks to Jennie Nolon, Esq. of the Land Use Law Center at Pace University School of Law for sending in this abstract.

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