In one of the most anxiously awaited New York land use decisions in recent memory, the state’s highest court held today that local governments have the power to regulate hydrofracking under their authority to enact zoning ordinances. Both the towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their jurisdictions. The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the details, procedures or operations of the oil and gas industry, not matters normally associated with land use regulation.

The Court of Appeals in Dryden and Middlefield rested its decision on both the Municipal Home Rule Law (MHRL) and the Town Law. The MHRL contains a seldom-cited provision granting authority to local governments, including towns, cities, and villages, to protect and enhance their physical and visual environments. The Town Law is New York’s version of the Standard Zoning Enabling Act, which was the model for most state statutes that delegate zoning authority to local governments. The court pointed to the breadth of municipal zoning powers to provide for the development of a balanced, cohesive community and to the notion that the regulation of land use through the adoption of zoning is one of the core powers of local governments.

The cases, Nos. 130 and 131, are available on the Court of Appeals website, under today’s date.

Thanks to Professor John Nolon at the Land Use Law Center at Pace Law School for this quick and timely summary.

The United States District Court for the Western District of Washington (“Court”) ruled that the City of Seattle (“City”) violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) when instructing Corporation of the Catholic Archbishop of Seattle and Bishop Blanchet High School (“Bishop Blanchet”) to procure a variance to meet the height requirements necessary in a residential, single-family zoning district rather then going through the Special Exemption Process. Bishop Blanchet, a private catholic high school, wanted to build four 70-foot-tall light poles to illuminate its athletic field. However, the height limit in the zoning district was 30 feet.

In order to build the light poles, Bishop Blanchet applied to obtain a variance, which was granted on April 25, 2013 by the Department of Planning and Development (“DPD”). On July 17, 2013 the Hearing Examiner overturned the DPD’s decision when they adopted the local neighbors argument that Bishop Blanchet did not meet the criteria to be granted a variance. Bishop Blanchet sought a special exemption, which had been granted to both Nathan Hale High School and Ingraham High School in a similar zoning district, to install their light poles. Both schools are public high schools unlike Bishop Blanchet, which is a private catholic school. The special exemption applies under SMC 23.51 B.002.D.6 “if the DPD ‘determines that the additional height is necessary to ensure adequate illumination and that impacts from light and glare are minimized to the greatest extent practicable.’” In such an event, a public school needs only to put forth an engineer’s report highlighting the impacts on light and glare.

Bishop Blanchet argued that RLUIPA had been violated because a public school in a similar situation would have been granted a special exemption, like Nathan and Ingraham High Schools. “There are four elements to establish a prima facie case of a RLUIPA equal terms claim: (1) an imposition or implementation of a land-use regulation, (2) by a government, (3) on a religious assembly or institution, (4) on less then equal terms with a nonreligious assembly or institution.” Before the Court, the only issue was the less then equal terms element.

In order to determine the last element, the Court must decide what characteristics were meant to be preserved in both the district and lighting fields. The Code provides for relevant criteria: “including light, tree coverage, density, structure height, traffic, parking, aesthetic consideration, and occupancy.” The City argued that Bishop Blanchet should be required to obtain a variance under “the accepted zoning criteria of ‘fostering the provision of public facilities by governmental agencies.’”

However, the Court found that Bishop Blanchet was treated on less then equal terms with both Nathan and Ingraham High Schools. The Court rejected the City’s argument and reasoned that the accepted zoning criteria is subjective in nature and has no connection to the zoning concerns of the district. Additionally, the exact language of the proffered acceptable zoning criterion by the City is nowhere to be found in the pertinent code sections. Further, the fact that the two public schools are public in nature does not adequately distinguish them from Bishop Blanchet. Lastly, the schools are situated “in residential, single family zones, have athletic fields which require lighting to be use in the evenings, and generate similar concerns with regard to parking, traffic, light, glare, and noise.”

Corporation of the Catholic Archbishop of Seattle v. City of Seattle, 2014 WL 2807684 (WD WA 6/20/2014)

The opinion can be accessed at:

The City of Westbrook (“City”) appealed the Superior Court’s judgment, upholding a consent decree that was entered between the City and Pike Industries (“Pike”) on May 20, 2013. Pike owned the Spring Street property since 2005 and it is used to “operate a quarry, a rock crushing plant, a concrete plant, and an asphalt plant on the property.” Two local businesses, Artel, Inc., IDEXX Laboratories and Smiling Hill, challenged Pikes standing to operate a quarry. Smiling Hill argued before the Supreme Judicial Court of Maine that the consent decree limits the City’s power to enforce the local ordinances, and that the decree creates an illegal contract zone. Pike contended that they had been grandfathered into the previous regulations in the zoning district, and therefore, is entitled to use the property as a quarry.

The Supreme Judicial Court of Maine affirmed the Superior Court’s decision that the City was not transferring its authority as a result of the consent decree and that an illegal contract zone had not been established. The court reasoned “Smiling Hill’s concerns that Pike could attempt to use the Decree as a ‘shield’ against enforcement in the future cannot materialize because the Decree does not and cannot provide the means for Pike to do so.” Pike could only enforce the grandfathered rights. Additionally, an illegal contract zone had not been created because the parties followed the courts instructions and complied with the zoning practices. Further, the Supreme Judicial Court noted that there had been no change to “the permitted use standards for the entire zoning district where Pikes quarrying operations are located….”

Pike Industries, Inc. v. City of Westbrook, 2014 WL 2885395 (ME 6/24/2014)

The opinion can be accessed at:

The plaintiffs, Southampton Camp Realty, LLC purchased property, previously used as a tennis and racquet club, which was a nonconforming use. They planned to convert the property into a children’s day camp. They hoped that the children’s day camp would be an interchangeable nonconforming use of the property, such that they would not be required to obtain a variance. The Chief Building Inspector of the Town of Southampton, New York (“Building Inspector”) concurred with the plaintiffs. Local residents and civic organizations then filed with the Zoning Board of Appeals an “application for review” of the concurrence. They distributed a flyer suggesting that the plaintiffs had lied about the environmental impact of the proposed development. The plaintiffs commenced an action alleging, inter alia, that the statements in the flyer constituted defamation. The defendants counterclaimed that this action was a strategic lawsuit against public participation (“SLAPP suit”), as defined in Civil Rights Law §§ 70–a and 76–a, and sought an award of, inter alia, an attorney’s fee and punitive damages.

The trial court granted portions of the defendants’ motion that were for summary judgment dismissing the complaint and on the portion of the counterclaim which sought an award of an attorney’s fee, concluding that this was a SLAPP suit. The court denied the portion of the defendants’ motion that was for summary judgment on the portion of the counterclaim that sought punitive damages. Both parties appealed.

The appellate division noted that Civil Rights Law § 76–a was passed to protect citizens facing litigation arising from their public petitioning and participation by deterring strategic lawsuits against public participation, termed SLAPP suits. Civil Rights Law § 70–a, permits a defendant in such actions to recover costs and an attorney’s fee, and CPLR 3211(g) and CPLR 3212(h), which require the plaintiff, on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action or for summary judgment pursuant to CPLR 3212, to demonstrate that the action “has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.”

Here, the defendants established that the plaintiffs were public applicants and that the suit concerned a communication that was “materially related” to the defendants’ efforts to report on, comment on, or oppose the plaintiffs’ application. The plaintiffs failed to demonstrate a substantial basis in fact and law in support of their allegations that the challenged statements amounted to defamation per se, that the statements were known to be false by the defendants, or that they were made with reckless disregard for the truth. Accordingly, the trial court had properly granted that branch of the defendants’ motion that was for summary judgment dismissing the complaint. The trial court properly denied that branch of the motion which was for summary judgment on so much of the counterclaim as sought an award of punitive damages, as the defendants failed to demonstrate that this lawsuit was commenced solely to harass, intimidate, punish, or otherwise inhibit their rights to free speech, petition, or association.

Southampton Day Camp Realty, LLC v Gormon, 2014 WL 2871383 (NYAD 2 Dept 6/25/2014)

The opinion can be accessed at:

Hispanic homeowners in Hayward, California alleged that the County of Alameda selectively enforced a zoning ordinance against them, in violation of 42 U.S.C. § 1983. They asserted that the county defendants are selectively enforcing the ordinance against them; however, they failed to show that there were any similarly situated non-Hispanic homeowners who were violating the ordinance but were not being cited. Accordingly, they could not make out a selective enforcement claim against the county defendants. Therefore, the district court properly affirmed the lower court and dismissed the complaint as failing to adequately allege any federal claim upon which relief could be granted.

Cortez v County of Alameda, 2014 WL 2854889 (9th Cir. CA unpub. 6/24/2014)

The opinion can be accessed at:

Editor’s note: The following summary is posted with permission from author Professor Ruthann Robson of CUNY Law School. The original posting appears of the Constitutional Law Professor Blog here:

In August 2008, a municipality erected a sign “Bible Baptist Church Welcomes You!,” with a directional arrow and “1 BLOCK” written on it, and depicting a gold cross and a white Bible, on a right of way bordering a property owner’s property. The property owner engaged in a bit of her own speech, on her own property, posting a sign of her own directly in front of the church sign which read “This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!” The municipality threatened the property owner with sanctions for her sign, which she removed. The property owner filed a complaint pursuant to 42 USC §1983 in federal court in November 2012 alleging constitutional violations by the municipality based on the church sign, which remains standing, and her own offending sign, which she had removed. The state statute of limitations for tort claims is two years.

The Third Circuit’s opinion in Tearpock-Martini v. Borough of Shickshinny addressed exactly this problem. The complaint alleged that the “church sign” violated the Establishment Clause, while the threats to prosecute plaintiff for erecting her own sign violated both the Equal Protection Clause and the First Amendment. Generally, because §1983 does not have a statute of limitations, state law provides the applicable time limitations. The district judge dismissed the complaint based on the statute of limitations because the actions occurred more than two years prior to the filing of the complaint. Reversing on the Establishment Clause claim only, the Third Circuit found that the state statute of limitations did not bar the claim.

The plaintiff’s attorney argued that the two year statute of limitations for the church sign should be viewed as a “continuing violation.” As the court noted, this is more often part of a statute of limitations inquiry in an employment discrimination case: “where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern.” But here, the court accepted the municipality’s argument that the continuing violation doctrine does not apply because the sign “is merely an effect” of the action – - – erecting the sign – - -that was within the statute of limitations.

But the Third Circuit found that the state’s two year statute of limitations was inapplicable because although §1983 does not have a statute of limitations and state law provides the pertinent time limitations, this is true only “if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261 (1985). The Court found that Establishment Clause rights are very important and that while other constitutional rights are also important
what further distinguishes Tearpock-Martini’s claim, and Establishment Clause claims in general, is that the traditional rationales justifying a limitations period—“to protect defendants against stale or unduly delayed claims,” “facilitat[e] the administration of claims,” and “promot[e] judicial efficiency,” [citation omitted] —simply have no persuasive force in this context. Tearpock-Martini’s challenge is to a still- existing monument that communicates anew an allegedly unconstitutional endorsement of religion by the government each time it is viewed. Strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display.

Moreover, the Third Circuit noted that it could not find any precedent for finding an Establishment Clause challenge time-barred in a passive monument case, and indeed the cases were the opposite, citing, most persuasively, Van Orden v. Perry, 545 U.S. 677 (2005) (display of Ten Commandments challenged 40 years after installation).

The Third Circuit’s conclusion seems exactly right: how can there be a statute of limitations on an Establishment Clause violation of a passive monument? However, in this case, because this particular plaintiff knew about the sign, and even objected to it, one could have expected her to act more quickly. Yet the very notion of an Establishment Clause violation caused by a still existing monument or even sign is that it is a continuing one.

Tearpock-Martini v. Borough of Shickshinny, 2014 WL 2808140 (3rd Cir. 6/23/2014)

The opinion can be accessed at:

The appellate court reversed the trial court’s decision, vacating the denial of a site-plan application to build an all-terrain vehicle (ATV) track. The Town’s Code allows for, inter alia, private garages, greenhouses, and other customary accessory uses in the zoning district. The appellate court agreed with the Planning Board of the Town of West Seneca that the track did not fall within the other customary accessory uses category. The court reasoned that “the evidence in the record establishes that the track would increase already existing problems, including the noise level in the neighborhood, the number of incidents of physical damage and trespass to the neighboring properties, and the potential…to be held liable for injuries occurring on their properties.” Further, the Planning Board of the Town of West Seneca did not abuse its discretion when rejecting the implementation of the ATV track based on the above considerations.

Dietrich v. Planning Bd. of Town of West Seneca, 2014 WL 2782147 (NYAD 4 Dept. 6/20/2014)

The opinion can be accessed at:

The Fourth Department affirmed the Court of Claims granting of $43,314, plus interest in damages to Tehan’s Catalog Showroom (“Tehan”) for the condemnation of sections of its two neighboring properties. However, the Fourth Department rejected Tehan’s motion to keep out the States appraisal from evidence. The record set forth that the State valued the parcels separately and allotted the highest and best use to each of them. Further, the Fourth Department denied Tehan’s request that one of the parcels be labeled retail for zoning purposes. Tehan did not provide for the required parking spaces for its contention and at trial provided no evidence to support its position.

Tehan’s Catalog Showrooms, Inc. v State, 2014 WL 2782358 (NYAD 4 Dept. 6/20/2014)

The opinion can be accessed at:

Servant Oasis requested permission to build a religious retreat to accommodate 297 persons at full capacity, while the current status of the property would only allow for 40 overnight campers and 50 daytime visitors. Servant Oasis included a water and sewer feasibility study for construction, which would accommodate the additional visitors expected for the full build-out phase. At the hearing several landowners voiced concerns about the retreat’s impact on their property, whether emergency responders would be able to assist persons at the retreat location, and the increase in traffic. The zoning board in response denied the application stating that the proposal did not satisfy the requirements for special exceptions and that the retreat would be detrimental to public health, safety and welfare.

On appeal, the court found that Servant Oasis identified a plan for their sewage disposal as directed by the zoning statute by giving alternative methods of sewage disposal for the fully built-out retreat, and that the zoning board held them to a higher standard of law, as they were not required to obtain the requisite permit for the sewage proposal during the early stages of the zoning process. With respect to the zoning board’s concerns for an emergency plan, the court found that the emergency plan of access satisfied the zoning board’s requirement, as the submitted plan included preparation of an emergency evacuation plan, training its employees and volunteers, providing a suitable entrance for first responders, and improving existing roadways complied with the minimal guidance of providing a written plan of emergency access to the board. Lastly, the court found that the zoning board’s concerns about increased traffic did not meet its standard of proving there to be a high probability of a substantial threat on the health and safety of the community.

Servants Oasis v Zoning Hearing Board of South Annville Township, 2014 WL 2756553 (PA Cmmwlth 6/18/2014)

The opinion can be accessed at:

Griffin Family Limited Partnership (landowner) owned and operated a wholesale building supply store that had a parking lot, and Landowner entered into an agreement with All Stop Parking, which allowed All Stop Parking to use the supply store’s parking lot when the building supply store was closed. Landowner then filed an occupancy permit application with the zoning administrator, but the zoning administrator denied the application because commercial event parking is not permitted in an overlay district. Landowner was advised by the zoning administrator to seek a variance, which they did by stating that the parking at stadium events created overcrowding, and that the city would create revenues and prevent congestion by granting the variance. The Objector to the variance asserted that the purpose of the overlay district was to prevent stadium parking in residential communities, and that the stadium customers should use the parking garages that were built by taxpayers. The zoning board held that the applicable local law was not intended to address or in any way proscribe stadium event parking in existing parking lots located in the Overlay District and that Landowners did not need a variance to operate commercial event parking on their existing and actively used parking lot, which is accessory to the business use. Objectors Appealed to the trial court and the trial court affirmed.

The appeals court upheld the zoning board’s authority to interpret the zoning ordinance and upheld its conclusion that no variance was necessary by reading together the applicable sections of the local ordinance and state law as the landowner was not “installing” a new parking lot, but rather using an existing parking lot for that purpose.

The Allegheny West Civic Council, Inc. v Zoning Board of Adjustment of City of Pittsburgh, 2014 WL 2756551 (PA Cmmwlth 6/18/2014)

The opinion can be accessed at:

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