The zoning inspector for Trumbull Township cited Appellant Gary Tepley for violating the Trumbull Township zoning code because Tepley was storing tractor-trailer trucks that were not in a completely enclosed building on his property. According to Tepley, the 1981 Trumbull Township Zoning Code, the applicable zoning code to Tepley’s storage of vehicles in 1982, did not prohibit the parking of tractor-trailers and other commercial vehicles on the property. Tepley appealed the citation claiming that his storage of the vehicles was a prior nonconforming use because he continuously stored various commercial trucks on his property in the open since 1982. In this administrative appeal, Tepley argued that the BZA’s decision was not supported by the preponderance of substantial, reliable, and probative evidence.

Teplay’s argument was that the trial court did not correctly apply the standard of review to the BZA decision, and that the evidence did not support a finding that Tepley did not establish a prior nonconforming use. However, a prior non-conforming use must meet two requirements: first, the use must have been in existence prior to the enactment of the prohibitory land use; second, the land use in question must have been lawful at the time it commenced. Tepley’s argument was based on the premise that because the 1981 Trumbull Township zoning code did not affirmatively prohibit the storage of vehicles on the Property, it was lawful for him to store his commercial vehicles there in 1982. Despite this, the storing of commercial vehicles on residentially zoned property is not an exempt use, and Tepley never obtained a zoning certificate for his storage of commercial vehicles. Because, his use was not lawful at the time he started storing his vehicles on his property, there was no valid non-conforming use established.  The judgment of the trial court was therefore confirmed.

Tepley v Trumbull Township Board of Zoning Appeals, 2014 WL 5140356 (OH App. 10/14/2014)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-4541.pdf

The Zoning Administrator (ZA), whose office is part of the District of Columbia Department of Consumer and Regulatory Affairs (DCRA), granted a series of certificates of occupancy to Stadium Group LLC to operate “Stadium Club” as a “Nightclub and Restaurant with accessory parking (Not a Sexually Oriented Business Establishment).” Petitioner Ward 5 Improvement Association (Ward 5) appealed the issuance of those certificates to the District of Columbia Board of Zoning Adjustment (BZA). Ward 5 argued that Stadium Club was a “sexually-oriented business enterprise” (SOBE), and therefore under 11 DCMR § 801.2 (2008) could not operate as a matter of right in a C–M–zoned area. DCRA responded that “a nightclub that offers nude dancing entertainment is not a sexually-oriented business establishment” per se and claimed that the ZA did not err in issuing the certificates of occupancy. Stadium Club intervened to defend the ZA’s decision, and the BZA upheld the ZA’s decision, which Ward 5 appealed.

In reviewing a BZA decision, the court had to determine (1) whether the agency has made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether conclusions legally sufficient to support the decision flow rationally from the findings. In this case, the BZA failed to make essential factual findings regarding the information available to the ZA at the time he issued the second permanent certificate of occupancy on June 24, 2011. Without such fact finding, the BZA could not assess the reasonableness of the ZA’s decision to issue that certificate. Thus, the BZA needed to consider whether the kind of dancing featured at Stadium Club involved “fondling,” “erotic touching,” or acts of “sexual stimulation or arousal,” as the BZA interprets those terms in light of its precedent, and consider whether these activities occurred despite Stadium Club’s “Rules and Regulations for Dancers” that purported to ensure compliance with zoning requirements. Accordingly, the order was vacated and the case was remanded for additional findings of fact.

Ward 5 Improvement Association v District of Columbia Board of Zoning Adjustment, 98 A. 3d 147 (DC App. 8/21/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/dc-court-of-appeals/1676240.html

Posted by: Patricia Salkin | October 16, 2014

NJ Appeals Court Upholds Ordinance Prohibiting Digital Billboards

Defendant, Township of Franklin (the Township), began a two-year process to adopt a new ordinance. During that deliberative process, the Planning Board (the Board) considered whether to permit digital multiple message billboards. The Board proposed, and the Township adopted, Ordinance No. 3875–10 (the Ordinance), which prohibited digital billboards. After Plaintiff E & J’s application for a variance to erect an electronic billboard was denied, it commenced this litigation, challenging the constitutionality of the Ordinance and the denial of its application for a variance. The trial court affirmed the denial of the variance, finding the Township’s decision to deny E & J’s application was not arbitrary, capricious or unreasonable. However, the trial court found the Ordinance’s ban violated the First Amendment.

In determining whether the Ordinance was content neutral, the court first looked at the fact that the Ordinance did not ban all billboards, only one feature of billboards that was unrelated to the content of any message. The effect of the ban was to prohibit electronic multi-messaging on a single billboard in the Township. The court noted that under the applicable standard, time, place or manner restrictions are valid, provided they satisfy three criteria: (1) they “are justified without reference to the content of the regulated speech,” (2) “they are narrowly tailored to serve a significant governmental interest,” and (3) “they leave open ample alternative channels for communication of the information.

On its face, the Ordinance did not restrict any speech based on its content, since a restriction on speech that serves purposes unrelated to the content of the speech is “deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Furthermore, the Ordinance explicitly stated the purpose for its regulation of billboards was “to balance the need to control and regulate billboards, promote and preserve the scenic beauty and character of the Township, provide for the safety and convenience of the public, and to recognize certain Constitutional rights relative to outdoor advertising; thus, it was narrowly tailored to serve a significant government purpose. Finally, the only type of message identified as being adversely affected by the loss of this advantage is emergency public service announcements, and there were other means were available to satisfy this need. Signs posted by NJDOT on I–287 were used to provide Amber alerts and Silver alerts; the Township had a “reverse 9–1–1” calling system and a system for sending “email blasts” to residents when necessary. Since all three prongs were met, the court reversed and found the ordinance constitutional.

E & J Equities, LLC v Board of Adjustment of the Township of Franklin, 2014 WL 5285501 (NJ Sup. 2014)

In 2000 Lamar Tennessee, LLC (“Lamar”), a company that advertises products through the use of billboards, built a standard billboard on property located in Metropolitan Nashville (“Metro”).  In 2006 the zoning was changed from “CS” —Commercial Service— to “MUL”—Mixed Use Limited, a district in which billboards are not permitted; in accordance with Tenn.Code Ann. § 13–7–208.  Lamar applied to Metro’s Department of Codes and Building Safety for a permit to replace its existing billboard with a digital one. The application was denied by the zoning administrator on the ground that the change from standard to digital was a “change from one non-conforming use to another.”  Lamar then appealed to the Metropolitan Board of Zoning Appeals, which reversed the administrator’s decision and granted the permit.  Days later, the permit was revoked on the ground that the proposed digital billboard violated a provision in the zoning code.  Lamar again appealed to the Board of Zoning Appeals, which held that the permit had been revoked in error and reinstated the permit.  The Metropolitan Government then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court reversed the decision granting the permit and Lamar appealed.

Lamar contended that Metropolitan Code § 17.32.050 H 2 is a zoning regulation to which the Non–Conforming Property Act, Tenn.Code Ann. § 13–7–208(b)(1), applies and permits the replacement of the mechanical sign with a digital one. Metro argued that the ordinance is a non-zoning safety restriction and that Lamar’s proposed use is not protected by the statute. The court analyzed this claim under the two-part “substantial effects” test. The first step requires courts to review the terms of the challenged ordinance and the municipality’s comprehensive zoning plan to determine whether the ordinance is so closely related to the zoning plan that it can be fairly characterized as tantamount to zoning. The second step requires the courts to determine whether the challenged ordinance substantially affects the use of property that is the subject of the litigation. The court concluded that, while Code § 17.32.050 H 2 is closely related to the zoning plan, it is not “tantamount to zoning”; furthermore, the application of the ordinance under the circumstances presented did not substantially affect Lamar’s use of the property.

Accordingly, because Code § 17.32.050 H 2 was found not to be a zoning ordinance, the statutes governing zoning at Tenn.Code Ann. § 13–7–201, et seq., did not apply and the protections of the Non–Conforming Property Act were not triggered. The court therefore affirmed the judgment of the trial court.

Metropolitan Government of Nashville & Davidson County v Board of Zoning Appeals of Nashville & Davidson County, 2014 WL 5147757 (TN App. 10/13/2014)

The plaintiffs were related companies engaged in the business of erecting and displaying billboards and other outdoor signs, which brought a facial challenge to a state permitting scheme. The challenged regulatory scheme required most parties wishing to engage in outdoor advertising to obtain a license in advance.  The regulations vested the authority to issue such licenses and permits in the Director of the Commonwealth’s Office of Outdoor Advertising and provided that he may withhold a permit, in his sole discretion, upon a determination that the particular sign “would not be in harmony with or suitable for the surrounding area or would do significant damage to the visual environment,”  In making such determinations, the Director “may” consider an array of enumerated factors, including (but not limited to) the physical characteristics of both the proposed sign and the locality; the effects on scenic beauty; and “the health, safety and general welfare of the public.” Furthermore, when issued, a permit is for a fixed duration, subject to annual renewal based on the same criteria, and is subject to revocation at any time for cause. Plaintiffs brought a claim in district court alleging that this scheme violated their free speech rights under the First and Fourteenth Amendments; however, the court dismissed for lack of standing.

The Circuit Court’s analysis focused on whether the plaintiffs sufficiently alleged an injury in fact. For there to be standing, an injury in fact must be both concrete and particularized and actual or imminent, not conjectural or hypothetical. The First Circuit analogized this case to City of Lakewood, 486 U.S. at 759, in which the Court reasoned that a facial challenge was appropriate because the challenged regulation was narrowly directed at an activity closely associated with expression and required annual relicensing, thereby enabling the decision-maker to consider a speaker’s viewpoint over time. Likewise, in this case, the regulatory permitting scheme that confers unbridled discretion to the Director with respect to granting permits for billboards had a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.

Accordingly, the court reversed the order dismissing plaintiffs’ First Amendment claim for lack of standing, and remanded the case for further proceedings.

Van Wagner Boston, LLC v. Davey, 2014 WL 5326518 (1st Cir. 2014)

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

Posted by: Patricia Salkin | October 12, 2014

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

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

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

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

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

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

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

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

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

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

For more information see: https://www.planning.org/cm/search/event/?EventID=27980

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

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

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

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

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

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

The opinion can be accessed at: http://caselaw.findlaw.com/ga-supreme-court/1680049.html

Lobsang Dargey, Tamara Agassi Dargey, and Potala Village Kirkland, LLC (collectively “Potala Village”) sought to develop certain real property in the City of Kirkland. Potala Village filed a complete application for a shoreline substantial development permit on February 23, 2011, but it did not file an application for a building permit before the City imposed a moratorium on the issuance of certain permits.  On November 15, 2011, the City enacted an ordinance imposing an emergency development moratorium on the BN zone, which temporarily precluded the issuance of permits in the BN zone. As of the date of the moratorium, Potala Village still had not filed an application for a building permit.  The City Council then extended the moratorium for six months, and Potala Village commenced this action against the City, alleging multiple causes of action and seeking declaratory and other relief.

Potala argued that the filing of its completed shoreline substantial development permit application on February 23, 2011 for a portion of the project was sufficient to vest rights to the zoning or other land use control ordinances in effect on that date for the entire project. It sought a writ of mandamus directing the City to accept and process a building permit application for the project. In analyzing this claim, the court noted that under common law, Washington’s doctrine of vested rights entitled developers to have a land development proposal processed under the regulations in effect at the time a complete building permit application was filed.  The doctrine at common law was extended to a number of different types of permits, but it was never extended to applications for preliminary plat approval or short plat approval. The court therefore found that Potala Village’s failure to file a completed application for a building permit before enactment of the City’s moratorium on certain permits bars the vesting of rights to zoning or other land use control ordinances for the entire project. The filing of Potala Village’s completed application for a shoreline substantial development permit for a portion of the project on February 23, 2011 did not vest rights to the zoning or other land use control ordinances for the entire project that existed on that date.

Accordingly, the court reversed the order granting Potala Village’s motion for summary judgment.

Potala Village Kirkland, LLC v City of Kirkland, 334 P. 3d 1143 (Wash. App. 8/25/2014)

The opinion can be accessed at:

http://www.courts.wa.gov/opinions/pdf/705423.pdf

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