A webinar sponsored by APA’s Planning Law Division:

July 21, 2015

1:00 – 2:30 PM EST

CM 1.50 L 1.50

CLE credits also will be available

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast A Sign Regulation Apocalypse?  Understanding the U.S. Supreme Court’s Decision In Reed v. Town of Gilbert on Tuesday, July 21st from 1:00 to 2:30 PM EST. Registration is $20 for PLD members and $40 for nonmembers.

On June 15, 2015, the U.S. Supreme Court struck down the Town of Gilbert, Arizona’s sign code.  In a rare unanimous decision, all of the justices of the Court agreed that the Town’s code violated the core First Amendment requirement of content neutrality, and the majority opinion provided new insight on what it means for a regulation to be “content neutral.”  The Court’s decision is expected to put thousands of sign codes at increased risk of legal challenges, which could mean increased legal costs for local governments, as well as potential negative impacts on communities’ aesthetic concerns.  This program will include presentations by some of the nation’s leading scholars and practitioners on First Amendment and land use issues.  Panelists will discuss the facts of the Reed case, the Court’s rationale for its decision, some of the important questions and unanswered issues stemming from the case, and some helpful practice pointers on sign code drafting and enforcement.

Speakers include Brian J. Connolly, esq. of Otten Johnson Robinson Neff + Ragonetti, P.C. in Denver, CO; Daniel R. Mandelker, esq., Howard A. Stamper Professor of Law at Washington University in St. Louis; John M. Baker, esq. of Greene Espel PLLP in Minneapolis, MN;  and Susan L. Trevarthen, esq., FAICP of Weiss Serota Helfman Cole & Bierman, P.L. in Fort Lauderdale, FL.

Register here: https://www.planning.org/store/product/?ProductCode=EVENT_PLD0715

Petitioner owned a residence in the Village of Champlain, Clinton County where he kept several chickens. Pursuant to the Village of Champlain Zoning Code, petitioner’s home is located in a residential district and, as a result, the Zoning Enforcement Officer for the Village, Michael Tetreault, notified petitioner that he was not allowed to keep chickens at his residence as such use was considered agricultural and not permitted in a residential zoning district. Petitioner appealed to the zoning board seeking an interpretation of the Village Zoning Code and an appeal from Tetreault’s decision. After petitioner’s application was denied and Tetreault’s interpretation was affirmed, he appealed to the court. The trial court dismissed the petition and he appealed again.

The appellate court noted that pursuant to Village of Champlain Zoning Code § 119–20(B), permitted uses in an R1 residential district are “one-and two-family dwellings” and “accessory uses.” The code allowed for accessory uses that are “of a nature customarily incidental and subordinate to the principal use of the structure, such as garages, outbuildings, swimming pools, energy collection devices and the keeping of domesticated animals” Because poultry husbandry was included in the definition of agriculture, Tetreault’s interpretation was neither irrational nor unreasonable. Accordingly, the Supreme Court’s decision was affirmed and the petitioner’s contentions were dismissed.

Meier v Village of Champlain Zoning Board of Appeals, 2015 WL 3767526 (NYAD 3 Dept. 6/18/2015)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2015/519590.pdf

The Pitkin County Attorney’s Office received a citizen complaint regarding a potential code violation on Shook’s property. As a result, the Pitkin County Code Enforcement Officer, Carrington Brown, investigated the complaint and issued a notice of violation to Shook after determining that she had not obtained a necessary construction permit. Shook cured the violation by obtaining a permit shortly thereafter. Months later Shook submitted a Colorado Open Records Act (CORA) request to the county attorney (custodian) seeking access to records related to the violation. The custodian provided some documents in response to Shook’s request, but denied access to (1) the original citizen complaint, which included the name and phone number of the complainant; and (2) Brown’s handwritten notes. Shook then filed this action seeking a declaratory judgment that the custodian violated CORA by withholding the records. Following a hearing, the district court held that the custodian properly denied access to the records under CORA’s investigatory records exception, section 24–72–204(2)(a)(I), C.R.S.2014.

CORA’s exception for investigatory records allows a custodian to withhold records if: the records relate to investigations conducted by a sheriff, prosecuting attorney, or police department, or are contained in investigatory files compiled for criminal law enforcement purposes; and disclosure would be contrary to the public interest. Here, the testimony at the hearing suggested the purpose of the investigation was to determine whether Shook had violated the land use code and, if so, to bring her back into compliance. Because nothing in the record suggested that the county attorney investigated Shook’s violation for the purpose of a criminal prosecution, the court concluded the district court abused its discretion when it found that the county attorney was a “prosecuting attorney” within the meaning of the investigatory records exception. Accordingly, the order was reversed and remanded with directions to order the custodian to allow Shook to inspect the records and, upon Shook’s application, assess and award reasonable court costs and reasonable attorney fees in her favor.

Shook v Pitkin County Board of County Commissioners, 2015 WL 3776876 (CO App. 6/18/2015)

The opinion can be accessed at: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA0671-PD.pdf

Appellant, Apple Group, Ltd., purchased 88 acres of undeveloped land in Granger Township, zoned R–1 residential, which permits the construction of single-family and two-family homes on a minimum lot size of two acres. Apple sought to develop a subdivision consisting of 44 single-family homes situated on approximately one-acre lots on its property, so it applied to appellee Granger Township Board of Zoning Appeals for 176 variances, four variances for each of the 44 proposed lots. The BZA denied the variance application, and Apple filed an administrative appeal. The BZA’s decision was affirmed by the Medina County Court of Common Pleas, finding the BZA’s decision was supported by a preponderance of the evidence and that the request for variances was in reality an attempt to rezone the land to a new district. Apple also filed a complaint for declaratory judgment, seeking a declaration that Granger’s zoning resolution establishing the R–1 zoning classification is unconstitutional and beyond the authority delegated to Granger in R.C. Chapter 519. A magistrate issued a decision denying Apple’s claims, concluding “the zoning resolution itself meets the statutory requirement of a comprehensive plan, because it has the essential characteristics of a comprehensive plan; it encompasses all geographic parts of the community and integrates all functional elements.” The common pleas court adopted the magistrate’s findings, and Apple appealed to the Ninth District Court of Appeals, which affirmed.

On appeal, Apple argued that a comprehensive plan must be created first to assure the public that the township’s zoning has been properly considered, and that a zoning resolution must implement the comprehensive plan. Granger argued that its Revised Zoning Resolution was the comprehensive plan identified in R.C. 519.02. The court noted that the comprehensive plan consists of something more than zoning a section of a township to allow farming, residential, commercial, and recreational uses without specifying which portions of the section can be used for any of those purposes. It then adopted the factors that the White Oak court considered to be indicative of a comprehensive plan, i.e., that it “(1) reflect current land uses; (2) allow for change; (3) promote public health and safety; (4) uniformly classify similar areas; (5) clearly define district locations and boundaries; and (6) identify the use(s) to which each property may be put.” White Oak Property Dev., L.L.C. v. Washington Twp., 12th Dist. Brown No. CA2011–05–011, 2012-Ohio-425, 2012 WL 368254.

Because the court found all six factors were met, and a comprehensive plan need not be set forth in a separate document and may be included in the township’s zoning plan, the court held Granger’s zoning resolution was enacted in accordance with a comprehensive plan pursuant to R.C. 519.02. The judgment of the Court of Appeals was therefore affirmed.

Apple Group, LTD v Granger Township Board of Zoning Appeals, 2015 WL 3774084 (OH 6/17/2015)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4259.pdf

Plaintiff Richard Grabowsky challenged the validity of an ordinance adopted by the Township to permit the construction of an assisted living facility on a site located next to the Unitarian Universalist Congregation Church of Montclair. Plaintiff asserted that a statement made by Township Mayor Jerry Fried, a member of the Township Council and Planning Board, demonstrated that Fried had a direct personal interest in the development and should have been disqualified from voting on the zoning issue. Specifically, the alleged comment by the mayor that he might seek to admit his mother into the proposed facility. He also alleged that Fried and a second member of the Council, Nick Lewis, shared a disqualifying indirect personal interest in the development project because of their membership and more specifically, leadership positions in the Unitarian Church. Plaintiff sought a preliminary injunction barring the Township and Planning Board from considering or approving development applications for the assisted living facility. The trial court granted summary disposition and dismissed the complaint with prejudice. The Appellate Court found the dismissal improper but agreed there was no conflict of interest, and the plaintiff appealed.

As to the dismissal, the court found the trial court erred because the only motions before the trial court were defendants’ motions to intervene and plaintiff’s motion for a preliminary injunction. Consequently, the parties had no opportunity to prepare a factual record to support or oppose summary disposition or argue the standard of Rule 4:67–1. It therefore found that plaintiff’s conflict-of-interest claims must be reinstated and considered on their merits. Accordingly, the court examined these claims, adhering to the principle that in order to determine whether there is a disqualifying interest, a court need not ascertain whether a public official has acted dishonestly or has sought to further a personal or financial interest; the decisive factor is “whether there is a potential for conflict.”

In determining whether a public official is disqualified from participating in a zoning application because of his or her affiliation with a church or other organization, the court found that the organization is deemed to have an interest in the application if it owns property within 200 feet of the property that is the subject of the application. In this case, due to the Unitarian Church’s status as the owner of property adjacent to the Church Street Lot, it clearly held an interest in the Fountain Square application to amend the Ordinance. The court instructed that on remand, the trial court should afford to the parties the opportunity to enter into a stipulation regarding the nature and timing of any leadership roles that were assumed, or were expected imminently to be assumed, by Fried and Lewis at the relevant time. It therefore reversed and remanded the proceedings.

Grabowsky v Township of Montclair, 2015 WL 3648741 (NJ 6/15/2015)

The opinion can be accessed at: http://law.justia.com/cases/new-jersey/supreme-court/2015/a-53-13.html

The petitioner, Stephen E. Forster d/b/a Forster’s Christmas Tree Farm & Gift Shoppe, owned approximately 110 acres in Henniker on which he operated a commercial Christmas tree farm. His Christmas trees occupied approximately 10 acres of the farm. The intervenors, Stephen and Spencer Bennett, owned property that abuts the petitioner’s property. In this case, Forster appealed a decision of the Superior Court upholding the determination by the zoning board of adjustment for the respondent, the Town of Henniker, that “weddings and like events are not accessory uses” to the petitioner’s farm and that hosting such events is not a permitted use in the farm’s zoning district. Forster argued, that he had a right to conduct commercial weddings and similar events on his farm, without obtaining either a special exception or a variance.

The petitioner first argued that his proposed uses were permitted uses in the rural residential district because they constituted “agritourism.” Here, although growing “Christmas trees … as part of a commercial Christmas tree operation” was listed as a farm operation under subpart (a), hosting events such as those the petitioner proposed was not. Furthermore, pursuant to the statute, to constitute “agritourism,” the activity must “attract visitors to a working farm for the purpose of eating a meal, making overnight stays, enjoyment of the farm environment, education on farm operations, or active involvement in the activity of the farm,” and an activity must be “ancillary to the farm operation.” The court found that nothing in this definition provided that activities that constitute “agritourism” also constituted “agriculture.”

The petitioner next argued that the Town’s ordinance is impliedly preempted because, in prohibiting his proposed use of “agritourism”, the ordinance frustrated the purpose of RSA 21:34–a, VI, which he asserted was to “create a uniform understanding of the term and a uniform application of that term across the state to enhance the economic viability of New Hampshire farms.” However, the RSA 674:32– provided that when “agricultural activities are not explicitly addressed with respect to any zoning district or location, they shall be deemed to be permitted there, as either a primary or accessory use, so long as conducted in accordance with … federal and state laws, regulations, and rules.” Thus, the court rejected the petitioner’s argument that just because an ordinance failed to address a use an inference could be made that the ordinance prohibited that use.

Finally, the court examined whether the proposed uses were accessory uses under the ordinance. Here, the petitioner failed to establish that his proposed uses had “commonly, habitually and by long practice been established as reasonably associated with the primary use” in the local area. Accordingly, the court found the uses were not accessory uses, and therefore affirmed the ZBA’s determination.

Forster v Town of Henniker, 2015 WL 3638597 (NH 6/12/2015)

The opinion can be accessed at: http://law.justia.com/cases/new-hampshire/supreme-court/2015/2013-089.html

In 2006, the City of Detroit approved Systematic Recycling LLC a conditional zoning grant that permitted it to operate a large composting facility within city limits, subject to certain conditions. One of the conditions was that Systematic enter into a host community agreement (“HCA”) with Detroit to ensure that the city could adequately monitor its composting activities. After Systematic obtained the HCA, it was discovered that the individual who had procured the HCA had bribed certain members of the City Council in order to ensure its adoption by the city. Due to the fraud, the City of Detroit decided to allow the HCA to lapse rather than renewing it. As a result, Systematic’s conditional land use permit and associated zoning grant was revoked. The district court then granted Detroit’s motion for summary judgment, finding no reasonable jury could find Detroit violated Systematic’s constitutional rights by failing to renew the HCA and subsequently revoking the permit and zoning grant.

Systematic attempted to demonstrate that Detroit’s government action lacked a rational basis by negating every conceivable basis which might support the government action. However, the court found that the city officials had a rational basis to allow the Host Community Agreement to expire at the end of the term of two years in order to “uphold the integrity of the system that was compromised and insulted by the payment of a bribe.” Because no reasonable jury could conclude that Detroit singled out Systematic from similarly situated peers for no comprehensible reason, Systematic’s class of one claim and its due process claim failed. Finally, Systematic’s unjust enrichment claim failed because the court found Detroit did not receive money in return for nothing; Systematic received a decided benefit from Detroit in return for its payments, since it was allowed to operate its composting facility during the term of the HCA. Accordingly, the district court’s holding was affirmed.  

Systemic Recycling LLC v City of Detroit, 2015 WL 3620267 (6th Cir. CA 6/10/2015)

The opinion can be accessed at: http://law.justia.com/cases/federal/appellate-courts/ca6/13-1334/13-1334-2015-06-10.html

The SEQR Findings Statement for high-volume hydraulic fracturing (HVHF) was issued today, June 29, 2015. This concludes DEC’s comprehensive, seven-year review and officially prohibits HVHF in New York. See,http://www.dec.ny.gov/energy/75370.html

Beginning in 2001, Oasis Goodtime Emporium I, Inc., operated under a settlement agreement that resolved litigation with DeKalb County, which granted Oasis and other adult businesses “adult nonconforming status,” meaning that they were “permitted to sell alcoholic beverages (subject to all other laws and regulation of alcohol) and to provide adult entertainment in the form of nude dancing or live nude performances.” On March 29, 2012, the General Assembly passed Senate Bill (SB) 532, which amended the City’s charter by redefining Doraville’s boundaries, effective December 31, 2012; the new city limits encompass Oasis’s location. On October 1, 2012, Doraville enacted Ordinance No.2012–18, which established a sexually oriented business (SOB) code, located at § 6–400 et seq. of the Doraville Code of Ordinances. Under this code, sexually oriented businesses are prohibited from selling alcohol, and employees of sexually oriented businesses are prohibited from appearing fully nude, but semi-nudity is permitted. Oasis argued that SB 532, which amended the City of Doraville’s charter by redefining the City’s boundaries to encompass the land on which Oasis operates, was invalid because the notice requirement of OCGA § 28–1–14(b) was not satisfied.

As a preliminary matter, the court addressed Oasis’s challenge to the notice of the new Doraville Ordinance. It determined Oasis did not have standing to bring this claim, since only the local government whose interest OCGA § 24–1–14(b) protects—here, the City of Doraville—had standing to contest compliance with that notice requirement. The court next looked to whether the ordinance was content-neutral, or if strict scrutiny was required. It noted that the preamble to Ordinance No.2012–18, which enacted the SOB code, recites the City Council’s findings that sexually oriented businesses “are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature”; that “there is convincing evidence that sexually oriented businesses, as a category of establishments, have deleterious secondary effects and are often associated with crime and adverse effects on surrounding properties”, and Oasis failed to allege any facts to show that Doraville adopted the ordinance to target a certain message. Because Oasis failed to establish that Doraville was targeting whatever message Oasis sought to convey, as opposed to the risks of negative secondary effects associated with sexually oriented businesses in general, the court found the ordinance content-neutral.

Under the three-part test analyzing content-neutral ordinances, the court first found that the city’s “unrebutted evidence” that it “relied on specific studies which it reasonably believed to be relevant to the problems addressed by the ordinance” was sufficient to prove that the ordinance was designed to further an important government interest. The second prong was likewise satisfied because serving alcohol is not a protected expression, and Code § 6–416(d) left Oasis’s employees free to express themselves as they wished through dance or otherwise. Finally, the court held the pasties and G-string dress code required by § 6–614(a) of the Doraville Code was a constitutionally valid balance between the City’s desire to eliminate the negative secondary effects of sexually oriented businesses and the need to protect free expression.

Oasis Goodtime Emporium I, Inc v City of Doraville, 2015 WL 3658847 (GA 6/15/2015)

The opinion can be accessed at: http://www.gasupreme.us/sc-op/pdf/s15a0146.pdf

The appellate court upheld the finding of the trial court that the petitioner’s rights to the previous legal nonconforming use status of two commercial signs was extinguished when the use of such signs was discontinued for fifteen years. The court found that the petitioner failed to establish that it fell into the limited exception applicable under the NYC Zoning Resolution when discontinuance “is directly caused by….the construction of a duly authorized improvement project by a governmental body or public utility company.” The petitioner did not prove that the collapse of the West Side Highway fit this exception.

Van Wagner Communications, LLC v Board of Standards and Appeals of the City of New York, 2015 WL 3849868 (NYAD 1 Dept. 6/23/2015)

The opinion can be accessed at: http://law.justia.com/cases/new-york/appellate-division-first-department/2015/15502-100418-13.html

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