Editor’s note: Thank you to Kelly A. Pressler, Esq., senior counsel at Jacobowitz and Gubits, LLP for this contribution.

BT Holdings, LLC (“BT”) purchased approximately 65 acres located in Chester, Orange County in the mid-80s.  At that time, the property was located partially in the Town of Chester and partially in the Village. The property remained vacant and unused until 2004 when the Town changed the zoning on the portion of the land within its borders.   BT began pursuing development of the site, meeting with the Town and Village officials to collaborate on a development plan.  The Village requested that BT annex the land entirely into the Village borders, allowing the Village to reap all of the tax benefits and permitting BT to use the Village’s municipal water supply. BT petitioned for annexation in January 2008.  An extensive, highly specific SEQRA review took place, concluding with the Village’s Findings statement in December 2011.  During the SEQRA review, the Village, as lead agency, reviewed a very specific development plan for luxury townhomes and senior housing arranged to create a neighborhood configuration.  The  Village also tasked BT with developing and drafting a new zone which would apply to the project; that new zoning was also part of the SEQRA review.  The Village’s Findings statement was approved unanimously and the Village Board voted in favor of the annexation.     The Town voted against annexation and two lawsuits were commenced, with BT and the Village fighting the Town to allow the annexation.  Those two lawsuits were settled via two Stipulations of Settlement, signed by all three parties, in approximately June 2013.  In the Stipulations, the Town agreed to rescind their SEQRA findings and adopt the Village’s, allowing the annexation; BT agreed to a reduction in the overall number of units in its project; and the Village agreed to allow construction of the proposed project in the manner set forth in the SEQRA Findings.   Once the annexation became final, the Village refused to assign any zoning to BT’s property, including the zoning that was drafted and reviewed during SEQRA process.  In November 2014, the Village Board voted against three different zoning districts for BT’s property, and also voted against assigned existing zoning to the Property, choosing again to leave the property un-zoned.   BT filed a lawsuit for breach of contract and breach of implied covenant of good faith and fair dealing.  After a jury trial in Orange County Supreme Court, the jury unanimously found the Village of Chester and its Board of Trustees liable for breaching both Stipulations of Settlement and the implied covenant of good faith and fair dealing contained in each Stipulation.  The jury awarded BT $2.375 million in damages.

See, http://www.recordonline.com/news/20171128/village-of-chester-ordered-to-pay-24m-to-developer

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More on December 14 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Planning and zoning in areas involving rights protected under the First Amendment, including the rights to free speech and freedom of religion, can be tricky. This webinar will review several areas in which planners interact with the First Amendment, including in the areas of signs, religious land uses, adult businesses, and even some other interesting areas such as the regulation of gun shops, tattoo parlors, public monuments, and other topics. Presenters will poll the audience at the beginning of the webinar to determine specific topics in which attendees are interested, and will tailor the presentation to attendees’ interests.

Speakers include Daniel Bolin of Ancel Glink, Brian Connolly of Otten Johnson Robinson Neff & Ragonetti, P.C., and Evan Seeman of Robinson & Cole LLP.

Register here: https://www.planning.org/events/eventsingle/9138197/

As a reminder, my casebook co-authors, John Nolon, Stephen Miller, Jonathan Rosenbloom and I have been blogging since the summer about teaching land use law as we methodically go through the material in the new 9th edition of Land Use and Sustainable Development Law: Cases and Materials.

Check out our posts and we always want to hear your ideas for best practices in keeping the study of land use law well grounded.  The latest post is available here (and you can find all previous posts as well):  http://lawprofessors.typepad.com/land_use/2017/12/patricia-e-salkin-on-contemporary-issues-in-teaching-land-use-question-5-how-to-create-a-practical-c.html

The Smiths submitted plans to build a carport to the Architectural Review Committee (ARC), which rejected the plans for failure to comply with the Lakewood Property Owners’ Association (LPOA) building restrictions. Specifically, the Building Restrictions required a five-foot setback from side interior yard lines. Following this, Christine Smith sent a letter to the chair of the ARC indicating the Appellants’ intentions to move forward with constructing the carport despite the ARC’s denial. The ARC chair responded, claiming the ARC would take appropriate action if the Appellants’ structure did not comply with the Building Restrictions. The Appellants began construction, placing the structure only two-and-one-half feet from the property line. After a trial, the court granted injunctive relief in favor of the Appellees and ordered the removal of the illegally constructed carport. On appeal, the court affirmed the trial court’s judgment, finding that the Appellant’s proposed remodel did not comply with the Building Restrictions. The court further held that the only remedy was to demolish the carport.

Appellants contended that the trial court erred when it ordered them to demolish the carport, because moving the columns inward by two-and-one-half feet would have brought the carport into compliance with the building restrictions. The Appellants’ expert architect, Elmore Tregre, III, testified that the attached carport could be brought into compliance by moving the columns inward an additional two-and-one-half feet, since moving the columns inward would create an eave; and eaves were allowed to extend to the property line. On cross-examination, Mr. Tregre admitted that because the Building Restrictions did not provide a definition for an eave, the definition provided in the New Orleans Comprehensive Zoning Ordinance (CZO) would have to be applied. Mr. Tregre further stated that under the CZO an eave can only extend from a wall; thus, the roof extension from the columns of the carport was not an eave, but was an overhang. Based on its interpretation of the CZO and the expert testimony, the trial court correctly found moving the columns inward would not create an eave as defined by the Building Restrictions. Accordingly, the trial court’s holding was affirmed.

Lakewood Property Owners’ Association v. Smith, 2017 WL 5623021 (LA App. 11/22/2017)

Editor’s note: This posting originally appeared on the Rocky Mountain Sign Law Blog and is reposted here with permission.  See: https://www.rockymountainsignlaw.com/2017/11/court-allows-first-amendment-claims-move-forward-reno-sign-code-case/#more-2402

A federal district court in Nevada ruled on the City of Reno’s motion to dismiss several claims brought against it by a billboard company and landowner relating to the placement of off-premises billboards in the city.

The plaintiffs in the case are a billboard company called Strict Scrutiny Media (which perhaps implies the type of judicial review that the company wanted, but did not get, in this case) and the Independent Order of Odd Fellows Reno Lodge #14.  SSM obtained billboard leases at three sites owned by the Oddfellows, constructed signs on all three locations, and obtained permits for the construction of one of the signs.  In late 2016, the city informed SSM and Oddfellows that the permitted sign’s permit was invalid due to the fact that it was issued to a different sign operator, and also informed Oddfellows that two other signs that had been installed by SSM and Oddfellows were constructed without a permit in violation of the city’s code.  Oddfellows and SSM then challenged the city’s action, and also challenged the city’s ban on the erection of new, permanent off-premises signs and the city’s exemptions to permit requirements for certain temporary or permanent on-premises signs.

On the city’s motion to dismiss, the court ruled that SSM, as a leaseholder of the signs in question, had standing to challenge the city’s ban on new, permanent billboards, and that Oddfellows, as the property owner, had standing to challenge exceptions to the permitting requirements for certain signs.  The court then dismissed most of the plaintiffs’ claims, but allowed several First Amendment claims to move forward.  These include claims that the city’s ban on new billboards violates Central Hudson and that the city has content-based exceptions to permitting requirements for on-premises.  The claims dismissed included claims of unconstitutional vagueness and various claims that were either duplicative of the First Amendment claims above, or were assertions of claims for which the court did not provide leave to add.  The court also denied the plaintiffs’ motion for preliminary injunction, which apparently failed to address all of the factors required on a motion for preliminary injunction.

Strict Scrutiny Media, Co. v. City of Reno, 2017 WL 5505040 (D. Nev. Nov. 15, 2017)

Posted by: Patricia Salkin | November 16, 2017

Fed. Dist. Court in PA Finds in Favor of Pittsburgh Buffer Zone Law

Editor’s note: This blog posting appeared on the Rocky Mountain Sign Blog and is reposted with permission.  See: https://www.rockymountainsignlaw.com/2017/11/district-court-finds-favor-pittsburgh-buffer-zone-law/#more-2408

 

A federal district court granted summary judgment to the City of Pittsburgh, Pennsylvania in a long-running dispute over a buffer zone law applicable to protest activities outside of reproductive health facilities such as Planned Parenthood.  The court held that the city’s 15-foot buffer zone law was content neutral and narrowly tailored to a substantial governmental interest, and thus valid under the First Amendment.

 

Pittsburgh enacted its buffer zone law in 2005.  The initial buffer zone law initially imposed a 15-foot buffer zone around the entrance to a hospital or health care facility in which no person was permitted to congregate, patrol, picket, or demonstrate.  The buffer zone excepted public safety officers, emergency workers, employees or agents of the facility, and patients.  The law also imposed an eight-foot “personal” buffer zone around individuals.  In the eight-foot buffer zone, no person could approach an individual to provide a leaflet or to protest, where the individual was within 100 feet of a hospital or health care facility entrance.  The eight-foot personal buffer zone was struck down in the case of Brown v. City of Pittsburgh in 2009.  The 15-foot buffer zone remained in effect, but was challenged again in 2014 following the Supreme Court’s decision in McCullen v. Coakley, in which the Court struck down a Massachusetts law imposing a 35-foot buffer zone around health care clinics.  The plaintiffs in the case are religiously-motivated protesters who engage in protest activities around a Planned Parenthood facility in Pittsburgh.  In 2016, as we reported, the Third Circuit reversed the district court’s dismissal of the case.

 

On cross-motions for summary judgment, the court first found that the buffer zone law was content neutral.  In so doing, the court relied on Hill v. Colorado, in which the U.S. Supreme Court determined that a similar buffer zone law was not content based by virtue of the fact that it prohibited picketing and other protest activity, but not other speech in the buffer zone.  Here, the court determined that the law’s prohibition on “congregating, patrolling, picketing, and demonstrating” was similarly content neutral.  Then, applying intermediate scrutiny, the court determined that the Pittsburgh buffer zone was narrowly tailored to a substantial governmental interest, satisfying the intermediate scrutiny test for content neutral speech regulations.  The court arrived at that conclusion because the Pittsburgh buffer zone was substantially smaller than the 35-foot buffer zone that was struck down by the Supreme Court in McCullen v. Coakley, and because there was undisputed evidence in the case that showed that the plaintiffs were not deprived of the ability to engage in sidewalk counseling immediately outside of the buffer zone.

 

The court also determined that the city met its burden to consider less restrictive alternatives to the buffer zone.  Evidence submitted in the case showed that the city had unsuccessfully attempted to use its police force to patrol hospital and health care entrances, and that reliance on the city’s prohibition on sidewalk obstruction was insufficient to address the significant protest activities occurring near health care facilities.

 

This case is one of the few post-McCullen decisions to uphold a buffer zone law in the face of a First Amendment challenge.  The limited nature of the restriction, i.e. 15 feet versus 35 feet or more, was a significant factor in the court’s decision, as was the substantial evidence indicating that the law was a minimal restriction on the plaintiffs’ exercise of their free speech rights.  It remains to be seen whether other cases will come out similarly, or whether the Third Circuit will affirm the decision.

 

Bruni v. City of Pittsburgh, 2017 WL 5499815 (W.D. Pa. Nov. 16, 2017)

Posted by: Patricia Salkin | November 15, 2017

NY Appellate Court Reduces Takings Award on Appeal

Claimant, Baycrest Manor, Inc., owned two contiguous unimproved lots, totaling more than 7,000 square feet, near the east shore of Staten Island. The claimant acquired title in the early 1970s and, the majority of the property was subsequently designated as wetlands. In 2006, the City acquired the property from the claimant as part of a multi-phase project to manage stormwater along the New Creek Bluebelt. The claimant then commenced this proceeding seeking compensation for the taking. Following the nonjury trial, the court awarded the claimant the principal sum of $382,190.25, plus interest, as just compensation for the taking.

On appeal, the City argued that the claimant should not have been awarded any increment above the $57,000 market value of the property as restricted by wetlands regulations, since no knowledgeable buyer would be willing to purchase the subject property at a price above its regulated value in the hope of successfully challenging the wetlands regulations as a taking. The City also argued that wetlands regulations were background principles of State law that inhere in the title of a post-enactment purchaser. The court rejected this contention, finding that a subsequent buyer of the property would not be precluded from bringing a successful regulatory takings claim. Therefore, the court declined to follow the City’s argument that no knowledgeable buyer would be willing to pay a premium for the probability of a successful judicial determination. Accordingly, the court held that the reasonable probability incremental increase rule still could be applied in valuing regulated wetlands properties taken in condemnation.

The City next argued that the Supreme Court erred in its determination that the claimant established that there was a reasonable probability that the imposition of the wetlands regulations on the property would be found to constitute a regulatory taking. However, based on the City’s valuations, the wetlands regulations reduced the value of the property by 88%. This diminution in value, together with the effective prohibition on development of any part of the property effectuated by the wetlands regulations, established that there was a reasonable probability that the imposition of the wetlands regulations on the property would be found to constitute a regulatory taking.

Finally, the City contended the Supreme Court should not have applied the increment proposed by the claimant’s appraiser, Lally. The record indicated that Lally chose an increment based only on instructions from the claimant’s attorneys and on a prior case. The court found that the Supreme Court should have alternatively applied the increment formula proposed by the City’s appraiser, Sterling, since his proposed increment was based on market data. Accordingly, the court held that the claimant should have been awarded the principal sum of $156,987.84.

Matter of New Creek Bluebelt, Phase 3, 2017 WL 5473963 (NYAD 2 Dept. 11/15/2017)

Posted by: Patricia Salkin | November 13, 2017

Local Food Movement

Nice shout out in the Regulatory Review on work with my colleague and co-author Amy Lavine, Esq. on the local food movement.

https://www.theregreview.org/2017/09/06/marolf-local-food-movement/

As relevant to this case, houses on 44th Street between Ingersoll and Grand Avenues in Des Moines must be set back at least fifty feet from the street. Property owner Cecelia Kent requested the Des Moines Zoning Board of Adjustment make an exception to allow her to build a house with a front yard setback of only thirty feet. The board agreed, and the district court upheld the board’s decision. Neighbor Craig Graziano challenged that decision, contending the board failed to make required written findings, and substantial evidence did not support the grant of an exception. Specifically, Graziano challenged the last two requirements of section 134-64(4)(a) (i.e., exception is only feasible means to overcome practical difficulties and is in harmony with the essential character of the neighborhood), as well as the general mandate that the exception must not diminish property values in the surrounding area.

Here, the record reflected that the board considered moving the easement, granting a ten-foot exception, or redesigning the house. Due to the discussion of alternatives at the hearing, and the inclusion of the ordinance language in the staff member’s written report, the court found that the board substantially complied with the written-findings requirement related to this subsection. The court further found that the board was permitted to rely on the assertions that the easement necessitated the proposed placement of the home and moving the easement would be expensive and impractical.

Graziano next contended that “there was no evidence, discussion, deliberations or finding regarding the relative scale of the proposed house in comparison with other houses on the street.” Here, however, the board considered aerial photographs of the neighborhood, as well as the city staff member’s opinion that the exception would not be out of character, considering the shape of the street, the large size of the surrounding homes, and the varying front yard setbacks. Furthermore, neither the applicant nor the city staff was required to conduct a formal study of the relative scale of the homes in the neighborhood.

Lastly, Graziano alleged the board failed to consider whether the exception would “diminish or impair established property values in surrounding areas” and substantial evidence did not support this finding. The court found that expert testimony was not required, and that the board could rely upon “commonsense inferences from evidence relating to other issues, such as use and enjoyment, crime, safety welfare, and aesthetics, to make a judgment as to whether the proposed use would substantially diminish or impair property values in the area.” Here, the board focused on neighborhood aesthetics, which was an issue intertwined with property valuation, and imposed conditions related to the appearance of the home. Accordingly, the court determined that the board had sufficient information to decide the exception would not diminish or impair property values in the neighborhood.  Thus, the district court’s holding was affirmed.

Graziano v Board of Adjustment of the City of Des Moines, 2017 WL 518 434 (IA App. 11/8/2017)

Posted by: Patricia Salkin | October 24, 2017

Environmental Justice Bill Introduced in US Senate

NJ Senator Cory Booker has introduced legislation to address EJ.

According to the Senator’s website the bill:

“Codifies and expands the 1994 Executive Order on Environmental Justice. Executive Order 12898 focused federal attention on environmental and human health impacts of federal actions on minority and low-income communities. The Environmental Justice Act of 2017 would codify this order into law, protecting it from being revoked by future Presidents. It would also expand the EO by improving the public’s access to information from federal agencies charged with implementing the bill and creating more opportunities for the public to participate in the agencies’ decision-making process.

Codifies the existing National Environmental Justice Advisory Council (NEJAC) and environmental justice grant programs. The bill ensures that NEJAC will continue to convene and provide critical input on environmental justice issues to federal agencies, and that several important environmental justice grant programs, including Environmental Justice Small Grants and CARE grants, will continue to be implemented under federal law. Since these grant programs and NEJAC have never been Congressionally authorized, they are susceptible to being discontinued by future Administrations.

Establishes requirements for federal agencies to address environmental justice. The bill requires agencies to implement and update annually a strategy to address negative environmental and health impacts on communities of color, indigenous communities, and low income communities. In addition, the bill codifies CEQ (Council on Environmental Quality) guidance to assist federal agencies with their NEPA (National Environmental Policy Act) procedures so that environmental justice concerns are effectively identified and addressed. The bill also codifies existing EPA guidance to enhance EPA’s consultations with Native American tribes in situations where tribal treaty rights may be affected by a proposed EPA action.

Requires consideration of cumulative impacts and persistent violations in federal or state permitting decisions under the Clean Water Act and the Clean Air Act. Currently, Clean Air Act and Clean Water Act permitting decisions do not take into account an area’s cumulative pollutant levels when a permit for an individual facility is being issued or renewed. This can result in an exceedingly high concentration of polluting facilities in certain areas, such as the area between Baton Rouge and New Orleans, Louisiana infamously known as Cancer Alley, where Senator Booker visited this summer. The bill also requires permitting authorities to consider a facility’s history of violations when deciding to issue or renew a permit.

Clarifies that communities impacted by events like the Flint water crisis may bring statutory claims for damages and common law claims in addition to requesting injunctive relief. Under current legal precedent, environmental justice communities are often prevented from bringing claims for damages. The bill would ensure that impacted communities can assert these claims.

Reinstates a private right of action for discriminatory practices under the Civil Rights Act. The bill overrules the Supreme Court decision in Alexander v. Sandoval and restores the right for individual citizens to bring actions under the Civil Rights Act against entities engaging in discriminatory practices that have a disparate impact. Currently citizens must rely upon federal agencies to bring such actions on their behalf.”

For more information see: https://www.booker.senate.gov/?p=press_release&id=685

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