FT Holdings L.P. developed a condominium complex located at East Thompson and Columbia Avenue in the City of Philadelphia. On March 9, 2012, FT submitted an application for Zoning/Use Registration Permit on properties it owned. FT sought to relocate lot lines to consolidate and merge two lots (413 Moyer and 415 Moyer) into 1247 E. Columbia Avenue as part of a previously approved residential development, demolition of the all existing structures on 413 and 415 Moyer Street, erection of one four story residential structure containing nine residential dwelling units with accessory decks, green roofs, and bicycle storage, for a total of thirty-five residential units and one commercial unit with accessory parking for thirty-two vehicles, as previously approved. However, the City of Philadelphia, Department of Licenses and Inspections (L & I) denied the application pursuant to the Philadelphia Zoning Code (Code). FT appealed to the ZBA. During the appeal, an attorney for a third party neighbor, John Scott, appeared on his behalf at the hearing, and argued that proper notice was not given, and that FT had failed to demonstrate an undue hardship that would entitle it to a variance and that the variances sought would affect the character of the neighborhood, reduce light and air, and increase parking and traffic problems. After the board granted the requested, Scott appealed to the common pleas court where FT moved to quash on the basis that he lacked standing because he failed to establish that he was aggrieved by the board’s decision. FT noted that Scott’s allegations were purely limited to legal arguments, and failed to establish any specific negative impact on Scott.

Scott argued that he is aggrieved because: he has to drive by the project; he lives on the same block as the project; he doesn’t want to look at the project; the project is not within the character of the neighborhood, which he doesn’t want to turn into Brooklyn; and that Appellee [F.T.] did not show any hardship. FT did not object at the hearing to Scott’s comments.

The court found that Scott failed to establish any discernible effect that granting the variance would have on any claimed interests, and also failed to demonstrate a causal connection between granting the variance and the injury to any claimed interest. Accordingly, the court held that the appellant was not an aggrieved person and could not be held to have standing to appeal the ZBA’s [Board] decision.

Scott v City of Philadelphia Zoning Board of Adjustment, 2014 WL 1133286 (PA Commnwlth 3/21/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1661096.html

Plaintiffs’ store occupied a portion of the first floor of a building erected before 1940, when the Town first implemented a zoning code. Under a grandfather clause in the zoning code any structure and use that lawfully existed before 1940 can continue to remain, exist, and be used, regardless of compliance with the current code. Plaintiff Ahmed bought an electric griddle, a sandwich press device and hotdog roller, and several tables and chairs, but never opened their packaging and left the tables and chairs stacked and unused. Nevertheless, defendants entered and advised plaintiffs that they could not prepare food at the premises for sale and consumption, because that would alter the store from a grandfathered retail store into a restaurant, violating the current zoning code. Plaintiffs immediately removed the items from the premises. Defendant issued a “Notice of Violation” and Summons, which stated that an inspection revealed an unsafe condition and construction without a permit.

Defendants moved to dismiss the procedural due process claim because plaintiffs availed themselves of an adequate post-deprivation remedy – a NY CPLR Article 78 proceeding. Plaintiffs argued that the claim should not be dismissed, because defendants failed to follow procedures in the Town Code and the Article 78 proceeding could not address pre-deprivation violations or reward damages. The court reasoned that an Article 78 proceeding provides the opportunity to review whether a body or officer ‘failed to perform a duty enjoined upon it by law’ or whether a specific act was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion,’ and permits the state court to remedy the violation by ordering a hearing or a return of the unlawfully seized property.” (quoting N.Y. C.P.L.R. 7803). Accordingly, the court dismissed the procedural due process claim.

Ahmed v Town of Oyster Bay, 2014 WL 1092363 (EDNY 318/2014)

Seven Generations Corp. applied for a CUP to operate a solid waste disposal facility in Hurlbut, Wisconsin. Seven Generations provided a detailed summary of the project, which was forwarded to the City’s Plan Commission. This facility would utilize pyrolysis, described as the “thermal decomposition of organic matter at temperatures sufficient to [vaporize] or gasify organic material in the absence of oxygen….” Seven Generations represented that the facility would convert municipal solid waste and other waste materials to energy by heating them in a sealed chamber with high efficiency, low emissions mono-nitrogen oxide burners. In August 2011, Seven Generations applied for a building permit for the facility, which the City granted.

The Common Council voted to direct the Plan Commission to hold a hearing to determine whether the CUP had been obtained by misrepresentation. They asserted Seven Generations had misrepresented the potential environmental impact of the facility when applying for the CUP; specifically, they claimed the facility would have exhaust stacks and produce emissions. Notice of the hearing was published in late September 2012, and the issue was defined as whether “the information submitted and presented to the Plan Commission was adequate for it to make an informed decision whether or not to advance the [CUP] that was recommended.” By a vote of seven to five, the Common Council voted to revoke the CUP based upon unidentified misrepresentations.

On appeal, the court held that the City generically stated that Cornelius had made “false statements” while responding to questions and concerns about “the public safety and health aspect of the Project and the Project’s impact upon the City’s environment.” The City claimed these misrepresentations were made by Seven Generations representatives while answering questions about “emissions, chemicals, and hazardous materials.” But none of these findings identified the supposedly false statements with any specificity. Because the City did not identify the statements on which its action was based, its decision appeared to the court to be the product of “unconsidered, wilful or irrational choice, and not the result of the ‘sifting and winnowing’ process.” Accordingly the court struck the City’s decision as arbitrary and capricious.

Oneida Seven Generations Corp v City of Green Bay, 2014 WL 1182629 (Wisc. App. 3/25/2014)

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=109414

The Eric A. Knudsen Trust’s (“Knudsen Trust”) filed an application with the Planning Commission of the County of Kauai, Hawai’i to subdivide land it owned, to implement Phase I of its planned residential community development. The historic Hapa Road bordered the development. The State Historic Preservation Division (“SHPD”) recommended conducting an archaeological inventory survey of the parcels of land in the application, submitting a report to SHPD for review and approval, and developing detailed mitigation plans if significant historic sites were recommended for mitigation.
To obtain final approval, the Knudsen Trust was required to comply with certain requirements. The Knudsen Trust completed a final environmental impact statement (“Final EIS”) for its development discussing a portion of Hapa Road to be improved as a pedestrian and bicycle path and the historic rock walls would be preserved and restored. The State Land Use Commission approved the Final EIS. The Planning Commission granted final subdivision approval of the development.

Subsequently, Theodore Blake (“Blake”) filed a complaint in the Circuit Court asserting six counts: (1) that the Defendants failed to fulfill the obligations imposed upon them by the public trust doctrine; (2) that the County Defendants failed to thoroughly investigate and protect Native Hawaiian rights; (3) that the Defendants failed to comply with rules governing procedures for historic preservation review; (4) that the subdivision approval and construction threatened to cause irreparable injury to burial sites and other historic sites; (5) that because the Knudsen Trust’s land was located within the State’s coastal zone management area, the Planning Commission was obligated to give “full consideration of historic and cultural values prior to decision making the Coastal Zone Management Act (“CZMA”); and (6) that the Knudsen Trust would breach a part of Hapa Road to allow vehicular traffic into its development. Blake later amended his complaint stating that Hapa Road was owned by the State and not the County; that the Knudsen Trust caused a public nuisance in altering Hapa Road without appropriate government authorization; and alleged that the Knudsen Trust was negligent when it altered Hapa Road without appropriate government authorization.

The State filed a motion for summary judgment arguing that Blake’s claims were not ripe because the Knudsen Trust was prohibited from going forward on the development until such time as it received approval from the BLNR for an easement across Hapa Road, a final agency action. The circuit court granted summary judgment, stating that Hapa Road was owned by the State of Hawaii. The subdivision plan submitted to the Planning Commission, required access across Hapa Road. Further, that there had been no final agency action. Therefore, the matter was not ripe.

Blake raised two points to the Intermediate Court of Appeals (“ICA”): (1) that the circuit court erred in granting the State Defendant’s motion for summary judgment; and (2) that the circuit court erred in failing to grant summary judgment in his favor. Further, even if one of the counts were not ripe, judicial economy would not be served by dismissing all the other counts.
The State argued that the case was not ripe because there needed to be further factual development as to what actions would be taken by the parties, and the State, as owner of Hapa Road, had not taken final action as to whether to grant or deny an easement. Further, the circuit court correctly dismissed all the other claims in the interest of judicial economy. The Knudsen Trust argued that Blake’s claims were not ripe because further factual development was needed and no final agency action had been taken.

The appeals court affirmed and Blake filed an application for writ of certiorari asserting eight counts: (1) the State and County Defendants failed to fulfill their public trust obligations; (2) the Defendants failed to investigate and protect Native Hawaiian rights; (3) the Defendants failed to comply with the Hawaii statutes; (4) the Defendants irreparably injured historic sites, including burial sites; (5) the Defendants failed to comply with the objectives, policies, and guidelines of the CZMA; (6) the Defendants failed to submit or require a supplemental EIS for the proposed breach of Hapa Trail; (7) the Knudsen Trust caused a public nuisance by failing to preserve and by altering Hapa Road without appropriate government authorization; and (8) the Knudsen Trust was negligent in failing to preserve the Hapa Road and its adjacent walls.

The Supreme Court held that the court below erred because all of the claims were ripe for adjudication. The court stated that that there is final agency action even when there are pending conditions on a final approval of a permit, and that final agency action refers to the agency’s whose decision was being challenged. Here, it was clear that the Planning Commission’s final approval of the Knudsen Trust’s subdivision application was a “final agency action” because it granted “final approval months before Blake discovered that Hapa Road was owned by the State. Although BLNR would need to grant an easement, the pendency did not “per se affect the finality of the Planning Commission’s approval for purposes of appeal because Blake was challenging the Planning Commission’s action, and not the action of BLNR. Also, the Planning Commission’s final approval appeared to have been the County’s definitive position on the subdivision application. Because the Planning Director sent the Knudsen Trust a letter indicating that the subdivision was “granted final approval which comported with the rules for service of decisions. Furthermore, construction commenced on the property following the Planning Commission’s final approval. The commencement of construction was clearly an “effect” of that decision.

The court stated that Counts 1-5 were ripe for adjudication because the Planning Commission’s approval of the subdivision constituted a “final agency action” regardless of where the access point was located. The court stated that Count 6 was ripe for adjudication because there was no need for further factual development. The court disagreed with the Defendants argument that further factual development was necessary regarding the necessity of a Supplemental EIS to address a breach of Hapa Road, because it was unclear whether the BLNR would grant an easement over Hapa Road to allow access to the development. However, the circuit court failed to consider the necessity of a Supplemental EIS. Therefore, the question of the necessity of a Supplemental EIS was ripe for review, regardless of BLNR’s approval. The court stated that Counts 7 and 8 were ripe for adjudication. The court stated that Blake’s claims involved alleged conduct that has already occurred. Counts 7 and 8 pertained to two incidents in which the Knudsen Trust allegedly altered the walls. The decision as to whether Hapa Road was used as an access to the development was irrelevant to the resolution of those claims. Further, case law indicates that the proper course for a court faced with a complaint asserting both ripe and unripe claims is to either proceed on the ripe claims, or to stay some or all of the ripe claims in the interest of judicial economy. Therefore, it was clear that the circuit court and the court could address the merits of some claims even when other claims are unripe.
Therefore, the judgment was vacated and the case was remanded.

Blake v. County of Kaua’i Planning Comm’n, 315 P.3d 749 (HI 12/19/13)

The opinion can be accessed at: http://www.inversecondemnation.com/files/scwc-11-0000342.pdf

For Rob Thomas’s summary of the case see: http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/11429/Blake-v-Kauai-Recktenwald-Court-continues-Moon-Courts-policies.aspx

Plaintiffs, the Lelands, owned property in Northfield Township, Michigan. The property had been zoned Agricultural (“AR”), and had been farmed that way for over 100 years. Plaintiff Grand/Sakwa executed an agreement to purchase the property and paid a nonrefundable deposit. Plaintiffs applied to rezone the property to SR–1 single-family residential (“SR–1”). SR–1 allowed up to four dwellings per acre with sewer service, or one per acre without sewer service. The township board approved the rezoning. After a referendum, which overruled the board’s decision, the property remained AR. The Zoning Board of Appeals denied plaintiffs’ requests for use or dimensional zoning variances.

Plaintiffs commenced an action alleging that any zoning classification more restrictive than SR–1 constituted a regulatory taking. Shortly thereafter, a new township board took office and amended the zoning ordinances, rezoning the property to LR low-density residential (“LR”), which allowed only one home per two acres. Therefore, at the time of the bench trial, the property was zoned LR. Plaintiffs argued that whether a regulatory taking existed should be determined by evaluating the AR zoning that existed at the time the lawsuit was filed. The township argued it should be determined based upon the LR zoning that existed at the time of the bench trial. The trial court ruled that the relevant zoning ordinance was LR and no constitutional violation had occurred.

On appeal plaintiffs first argued that the trial court erred by ruling that their challenge went to LR zoning. The court disagreed stating that the law to be applied was that which was in effect at the time of decision by the trial court. The general rule was subject to an exception. A court will not apply an amendment to a zoning ordinance where the amendment was enacted in bad faith and with unjustified delay. Here, the exception applied only if the trial court found that the newer classification was enacted for the purpose of manufacturing a defense to plaintiff’s suit. Here, the development sought by plaintiffs was never within the zoning classification, and the ordinance they sought to exclude from consideration was one that granted development rights.

The court agreed with the plaintiff that the trial court wrongly characterized the relevant test as requiring application of the newer zoning ordinance unless its adoption was done solely to improve the municipality’s litigation posture. However, they rejected the notion that if improving the municipality’s litigation position played any role in the decision to adopt the new ordinance; bad faith has been sufficiently established. Accordingly, they would not void a municipality’s action simply because it served to strengthen its litigation position. The factual determination that must control was whether the predominant motivation for the ordinance change was improvement of the municipality’s litigation position.

The trial court concluded the rezoning to LR was not done solely as an attempt to improve the Defendant’s position at trial. The board made a decision to allow residential development that maintained a rural character. The trial court also noted that the zoning board had previously granted plaintiffs’ request to rezone the property SR–1. However, the court stated that this could be read as demonstrating recognition by both boards that development was in order, though they disagreed on the degree of that development. Plaintiffs suggested that the township was opposed to all development and only adopted the LR zoning as a litigation strategy. However, plaintiffs concede that, after the old board adopted the SR–1 zoning, it was not possible to propose a referendum to void the SR–1 zoning and institute LR zoning in its place. The only mechanism for the residents to challenge the SR–1 zoning in a referendum was to put it to an up or down vote. Therefore, the trial court did not clearly err by applying LR zoning.

Plaintiffs next argued that the LR zoning constituted an unconstitutional governmental taking under the Penn Central Test. The court disagreed stating that Penn Central calls for the court to consider three factors: the character of the government’s action, the economic effect of the regulation on the property, and the extent by which the regulation has interfered with distinct, investment-backed expectations.

Plaintiffs maintained that the LR zoning created a loss of the value. Here, the LR zoning classification allowed a much more valuable use of the property than did AR zoning. No rights existing under AR zoning were denied under the LR zoning. In fact the LR zoning substantially expanded plaintiffs’ land use rights, allowing residential development to occur. Plaintiffs also argued that the trial court made several errors in its decision to admit or exclude certain evidence regarding the value of the property. First, plaintiffs contended that the trial court should not have admitted evidence of a 1998 sale of 77 acres by the Lelands for $10,000 per acre. Second, plaintiffs objected to the consideration of a 1996 appraisal that valued 120 acres of the property at $3,500 per acre. Third, plaintiffs asserted that the trial court should not have considered evidence that a local church was interested in purchasing 15 acres of the property for as much as $43,000 per acre. The court concluded that each of these challenges were properly addressed to the weight given to the evidence.

Plaintiffs similarly asserted that the trial court should have excluded the testimony of defendant’s expert witness, who testified to the economic viability of the property under the LR and AR zoning classifications. The trial court heard this testimony, and appropriately held that it went to the weight of the evidence, rather than its admissibility.

Plaintiffs next argued that the trial court erred by excluding testimony from lay witnesses regarding the value of the property under SR–1 zoning. The trial court held that this evidence was only relevant to damages and deferred the testimony pending a ruling on the cause of action. The court agreed with plaintiff that the trial court should have taken the testimony, given that the balancing test requires at least a comparison of the value removed with the value that remains. However, the court could not conclude that the trial court’s ruling constituted an abuse of discretion, given that the township conceded that the property would have greater value if zoned SR–1.

Further, a claimant who purchases land that is subject to zoning limitations with the intent to seek a modification of those limitations accepts the business risk that the limitations will remain in place or be only partially modified. Here, when plaintiffs entered into the purchase agreement, they were aware that the property was zoned AR. Plaintiffs argued that they had a reasonable expectation that the zoning classification would change, but they did not produce any evidence. However, plaintiffs conceded they understood that the zoning modification adopted by the board remained subject to a timely referendum challenge. Thus, plaintiffs’ suggestion that the property was for some time subject to the SR–1 zoning and that the SR–1 classification was taken away from them, after they spent money on the project, failed due to the fundamental fact that the property was never actually zoned SR–1.

Accordingly, because each of the Penn Central factors weighed in the township’s favor, the court found that the trial court did not err by finding that the rezoning of the property LR did not constitute an unconstitutional regulatory taking.

Lastly, plaintiffs argued that rezoning the property violated their due process and equal protection rights because it rendered the property not economically viable. The court disagreed stating that to show a violation of substantive due process, a plaintiff must prove (1) that there is no reasonable governmental interest being advanced by the present zoning classification, or (2) that the ordinance was unreasonable because of a purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area under consideration. The court stated that the trial court did not clearly err when it found that this was not the case. Accepting the trial court’s finding on that point, plaintiffs cannot show that it was a due process violation for the township to zone the property LR.

Regarding the equal protection clause, it was true that the rezoning to LR impacted only plaintiffs’ property. However, it was not the case that the rest of the AR land in the township was rezoned to SR–1, with only plaintiffs’ left behind. Rather, after the referendum, the township acted to give plaintiffs at least some of the relief they sought. It was appropriate to rezone only plaintiffs’ property where it was the only property for which a change in zoning was sought. Moreover, the amendments to the LR zoning classification itself affected all LR-zoned properties, not just plaintiffs’. The township’s goals of controlling growth and maintaining open space were legitimate, the method chosen was not arbitrary or capricious, and plaintiffs’ property was not improperly singled out under the circumstances. Accordingly, the court found that the trial court did not err by ruling for the township on plaintiffs’ due process and equal protection claims. Therefore, they affirmed.

Grand/Sakwa of Northfield, LLC, v. Township of Northfield, 2014 WL 436736 (MI 2/4/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/mi-court-of-appeals/1656574.html

Albert Arking along with a group of homeowners appealed the decision of the Montgomery County Planning Board, which approved a plan for resubdivision of an undeveloped lot to build two separate single-family homes. The Tamara Corporation submitted the plan to the Board, the appellants submitted letters opposing the resubdivision, and a public hearing was held; the board subsequently approved the plan by a 3-0 vote. The appellants submitted a petition for reconsideration, but the Board maintained its decision, but stated that it approved the plan because the lots were of the “same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as to t other lots within the existing neighborhood.” The appellants eventually appealed to the circuit court where they sought to supplement the record, but the court denied their motion, and they appealed again.

Essentially, the appellants argued on appeal that the circuit court improperly denied their motion to supplement the record because without such additional information the court would not be able to determine if the Board exercised reasonable judgment in light of the facts. Thus, the appellants were not appealing whether the Board improperly denied their request to supplement the record, but whether the circuit court did in denying their motion. The court began by stating that it would adhere to the strict standard that a reviewing court is limited to the record as submitted, and not only could it not consider the appellants’ additional evidence, but the circuit court did not err in reaching the same determination. Thus, the court then analyzed whether the Board’s decision was unreasonable.

The statute governing the design of lots in a resubdivision stated, in relevant part, that the lots “shall be of the same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as other lots within the existing block neighborhood or subdivision.” Appellants contended that the Board did not “appropriately select the ‘existing neighborhood’” for comparison sake, and that the lots were of the same character as the lots in the existing neighborhood. The court stated that because the Board took into consideration the abutting properties, the access points to and from the lots, and the consistency of the zoning within the boundary that its standard of determining an “existing neighborhood” was reasonable. The court also found the Board had substantial evidence to support its determination because it when there is “an honest dispute as to what comprises the neighborhood making the issue fairly debatable” the City’s acceptance of one definition cannot be questioned. Because the Board considered specific quantitative data, such as comparable lot size, shape of the lots, and their relationship to the lots surrounding them, the court found that the Board properly applied its standard to the proposed lots, and upheld the Board’s decision.

Arking v. Montgomery County Planning Bd., 215 Md. App. 589 (Md. Ct. Spec. App. 2014)

The opinion can be accessed at: http://www.mdcourts.gov/opinions/cosa/2013/2346s11.pdf

The City of Los Angeles’s granted a variance allowing a certain piece of property to operate a “sexual encounter establishment.” McQuiston brought suit in federal court challenging the variance, the defendants moved to dismiss, and the district court held for the defendants. McQuiston then appealed the decision of the district court, arguing a conspiracy claim, and other procedural arguments related to the finality of the defendant’s decision. The court found that McQuiston’s conspiracy claim failed because he did not allege, “any defendant’s actions were motivated by some racial, or … otherwise class-based, invidiously discriminatory animus.”

To successfully allege a conspiracy claim under 42 U.S.C § 1983, a plaintiff must set forth facts which demonstrate, if true, that “at least one private individual reached a specific agreement with at least one state actor to violate the plaintiff’s constitutional rights.” McQuiston failed to satisfy this requirement because he merely alleged that the defendants sought a variance, which they knew they were not entitled to receive, and that they “could not have obtained the variance without the cooperation of city officials.” Thus, McQuiston failed to allege a viable conspiracy claim.

McQuiston also argued that his claim under California state law was in fact timely because the City’s final decision on the variance was never mailed to him. However, the court found that McQuiston misinterpreted the relevant municipal law on this point, which states “the grant of a variance shall become final after 15 days from the date it was mailed to the applicant, unless an appeal is filed with the Council within that period.” The court found that it was uncontested that McQuiston filed an appeal within this fifteen-day window, and as such the proceedings were stayed until a final decision was made. The relevant law states that such an appeal would be decided by the Mayor, and once approved by the Mayor the ninety-day window to appeal would begin to run. Thus, because McQuiston did not file an appeal during that ninety-day window, his state law claim was untimely. The court found that McQuiston’s §1983 claims were precluded because the administrative proceedings were adjudicatory in nature, and the legal standard in the municipal law was followed, where facts were developed via testimony and evidence.

McQuiston v. City of Los Angeles, 2014 WL 1016789 (9th Cir. 3/18/2014)

The opinion can be accessed at: http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/03/18/12-56454.pdf

The City denied Flagship‘s application to rezone property “allowing Flagship to construct waste disposal and waste management facilities, methane gas facilities, recycling facilitates, and wetlands habitat preservation on the property.” Flagship alleged the City’s denial was arbitrary and capricious and in violation of Fourteenth Amendment procedural and substantive due process. Flagship further claimed that the hearing regarding the ordinance was an “unwieldy affair.” In sum, Flagship contended that the opponent’s conduct during the hearing was argumentative, hyperbolic, and extremely confusing. In addition to the unruly behavior at the hearing, Flagship argued that several of the board members engaged in ex parte communications because they conducted private research prior to the hearing, including a conversation with “an unidentified person about a landfill located in a different community.” Flagship also argued that the council members were clearly biased because they stated opposition to the ordinance prior to hearing any evidence at the hearing. The City’s reasons for denying the ordinance were: “(1) unpleasant odors, (2) attraction of rodents, (3) traffic increased due to garbage trucks, and (4) a purported requirement of two distance access point/entrance ways.” On appeal, Flagship’s argument was not any substantial or competent evidence to support these findings.

As to Flagship’s procedural due process claim, the court found that because Flagship did not avail itself to all state remedies, and did not allege that such adequate remedies were unavailable that there was no procedural due process violation because “only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation” occur. Flagship’s argument was that it was not required to exhaust all available administrative remedies prior to seeking judicial review. The court found that argument was not applicable because a due process violation requires the “unavailability of adequate remedies” which is not what occurred here. The court also found that Flagship’s substantive due process claim was barred because Flagship’s claims fell under state law and not the federal Constitution, as such there could be no substantive due process violation. The court affirmed the district court’s dismissal of both Flagship’s procedural and due process claims.

Flagship Lake County v. Mascotte, 2014 WL 961042 (11th Cir. (unpub) 3/13/2014)

This opinion can be located at: http://www.gpo.gov/fdsys/pkg/USCOURTS-ca11-13-12374/pdf/USCOURTS-ca11-13-12374-0.pdf

Defendants were attempting to obtain the various approvals required to build their new house from the City of Rye Planning Commission, and the plaintiffs commenced this action against the defendants for declaratory and injunctive relief alleging that the front and rear yard setback lines, which were drawn on the Forest Harbor subdivision map approved by the Planning Commission in 1967, required the front yard setbacks to be of at least 60 feet. The plaintiffs sought a declaration that the front and rear yard setback lines drawn on the subdivision map are deed restrictions that run with the land, and an injunction permanently enjoining the defendants from performing any construction in violation of those setback lines.

The appellate court held that the trial court should have denied the plaintiffs’ motion for summary judgment since, “[T]he policy of the law is to favor free and unobstructed use of realty” (Huggins v. Castle Estates, 36 N.Y.2d 427, 430, 369 N.Y.S.2d 80, 330 N.E.2d 48). Furthermore, the court noted that purchaser takes with notice from the record only of encumbrances in his direct chain of title. In the event that actual notice before or at the time of his purchase or of other exceptional circumstances are absent, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to himself or his direct predecessors in title. In this case, there was nothing in the defendants’ chain of title that indicated these setback lines are deed restrictions that run with the land. Since deed restrictions are strictly construed against those seeking to enforce them, it will be enforced only where their existence has been established by clear and convincing proof, the court found that the plantiffs failed to present any triable evidence in support of their argument. Accordingly, the court held that the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, and found that their motion should have been denied.

Butler v. Mathisson, 114 A.D.3d 894 (N.Y.A.D. 2d Dept. 2/26/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D40774.pdf

Lamar Advertising leases sign spacing for outdoor advertising and TLC has an ownership interest in several parcels of real property which Lamar leases for its outdoor advertising signs. In 2002, Rapid City made several changes to its Sign Code, including changes to the Off–Premises Sign Credit System (“Credit System”). This Credit System permitted owners of off-premises signs to receive “Off Premises Sign Credits” (“credits”) for removing an off-premises sign within the City or reducing the size of an off-premises sign to comply with the newly-enacted restrictions. Under it, an off-premises sign owner would receive 2 credits for removing a sign that did not conform to the Sign Code and 1 credit for removing a sign that did conform. Lamar contended the sunset provision of the Sign Code made it impossible for Lamar to use its sign credits before they expire, rendering them worthless. Lamar and TLC commenced this action against the City, asserting the Citizen Initiatives directly contradict the South Dakota Codified Laws, result in a taking of private property without just compensation, and violate their rights to freedom of speech and equal protection under the law provided in the United States and South Dakota Constitutions.

In its analysis of these claims the court noted that “fundamental rule of statutory construction that statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them retrospective effect clearly appears.” In re Scott’s Estate, 133 N.W.2d 1, 3 (S.D.1965); see also Gasper v. Freidel, 450 N.W.2d 226, 233 (S.D.1990) (“statutes are presumed to have prospective application and may be construed as retroactive only when such intention plainly appears.”). Since the sunset provision of the Sign Code contained no language signifying retroactivity, did not mention a specific date the provision should be applied, nor include any form of the word “retroactive ”, the court concluded that there is no language in § 15.28.250(F) to get the sunset provision past the fundamental rule regarding prospective operation. The court therefore found the plain language of the sunset provision to only apply prospectively, and thus granted the Defendant’s motion for summary judgment in regarded to this claim.

The court found an issue of material fact exists regarding whether the amended spacing requirements for off-premises signs contained in § 15.28.160(D) of the Sign Code are reasonable, since the issue of whether the increased spacing requirements were reasonable was a material fact to be decided at trial. Finally, the court found that the Sign Code did not restrict speech based on content nor does it create an arbitrary classification between Lamar and other outdoor advertisers since all off-premises advertisers are treated the same and there is no classification between Lamar and other outdoor advertisers.

Lamar Advert. of S. Dakota, Inc. v. City of Rapid City, 2014 WL 692956 (D.S.D. 2/21/2014)

The opinion can be accessed at: http://law.justia.com/cases/federal/district-courts/south-dakota/sddce/5:2011cv05068/49237/65

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