Stephanie Miller and her husband James Stellhorn, along with their co-owned company, Harlan LLC, brought suit under 42 U.S.C. § 1983 against the City of Monona, Wisconsin, and various public officials involved in their protracted effort to gain approval to build a condominium project. Miller raised claims of class-of-one and sex discrimination under the Fourteenth Amendment, and unreasonable search of the property under the Fourth Amendment. The district court dismissed the class-of-one claim, reasoning that Miller had not pointed to any similarly situated development project that had been treated more favorably. Although Miller proceeded, unsuccessfully, to summary judgment and trial on her other claims, in this appeal she challenged only the dismissal of the class-of-one claim.

For a class of one claim, a plaintiff will typically show an absence of rational basis by identifying some similarly situated person who was treated differently. Here, the court found that the district court’s first reason for rejecting the Metcalfe project as a comparator, the relative sizes of the two projects, was not persuasive because it would seem natural for the larger project to receive extra scrutiny. Despite this, the court’s second reason, that Miller’s property alone required asbestos removal was sound; the buildings on her property required multiple rounds of asbestos removal and eventual demolition, while the Metcalfe project was not alleged to have had any similar problems. Furthermore, it was clear from the first amended complaint that Miller’s property contained dilapidated structures requiring multiple rounds of asbestos removal which took more than half a year to complete, that she delayed her compliance with local code-enforcement efforts, and that a municipal court ultimately held that she had violated Monona’s building code by beginning demolition without proper permitting. For all of these facts, however, Miller’s complaint stated rational reasons for the government officials’ actions. Therefore, the judgment dismissing the class of one claim was affirmed.  

Miller v City of Monona, 2015 WL 1947886 (7th Cir. 5/1/2015)

The opinion can be accessed at:

The petitioners SCJB 400, LLC, owner of 400 East Jericho Turnpike in Mineola, and 7–Eleven, requested a special use permit to construct a convenience store on the premises. At a public hearing conducted by the Incorporated Village of Mineola Board of Trustees, experts retained by the petitioners asserted that a convenience store on the premises would not adversely affect the surrounding properties by exacerbating traffic conditions or decreasing property values. Various Board members and owners of nearby properties opposed the special use permit application, primarily based on their belief that the convenience store’s clientele would be unsavory, and that the presence of the proposed store would exacerbate existing traffic congestion. However, even though no expert evidence was provided in opposition to the petitioners’ expert evidence, the Board denied the petitioners’ application, citing concerns about traffic and parking. The petitioners then appealed from a judgment of the Supreme Court, Nassau County, which denied the petition and dismissed the article 78 proceeding.

The court found that the claims of Board members and nearby property owners that the granting of the special use permit application would exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners. Furthermore, the Board did not take into account 7–Eleven’s expressed willingness to abide by certain restrictions on the size of delivery trucks and the timing of deliveries. The court therefore reversed, finding that the Board’s denial of the petitioners’ special use permit application was not supported by the evidence in the record, and the denial was arbitrary and capricious.

7-Eleven, Inc. v Incorporated Village of Mineola, 2015 WL 1915853 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at:



Petitioners appeal the denial of a permit to operate an automotive repair shop on their property. Even though the trial court had erred in transferring the proceeding pursuant to CPLR 7804(g), because the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, held pursuant to direction of law, the court elected to decide the matter on its merits.  The Putnam Valley Code provides, in relevant part, that a nonconforming use status is lost when such nonconforming use “is inactive or ceases … for a continuous period of more than two years.” The court found that contrary to the Zoning Board’s contention, the minimal extent of the nonconforming use in this case did not constitute either inactivity or cessation for the requisite time period, since there had been some automotive repair activity during the relevant time period. Thus, the determination of the Town of Putnam Valley Zoning Board of Appeals that the petitioner’s property had lost its nonconforming use status as an automotive repair shop did not have a rational basis, and was arbitrary and capricious.

TAC Peck Equities, Ltd. v Town of Putnam Zoning Board of Appeals, 2015 WL 1915498 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at:

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Southold, which denied the petitioners’ application for area and lot-width variances, the Zoning Board of Appeals of the Town of Southold appealed from a judgment of the Supreme Court, Suffolk County. The Supreme Court had granted the petition, annulled the determination, and directed the Zoning Board of Appeals of the Town of Southold to grant the application.

Since local zoning boards have broad discretion in considering applications for variances, judicial review was limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion. Here, the court found that the denial by the Zoning Board of Appeals of the Town of Southold of the petitioners’ application for area and lot-width variances to build a single-family dwelling had a rational basis and was supported by evidence in the record. Furthermore, the granting of the variances would have resulted in the creation of a nonconforming lot in a unique neighborhood. Finally, the court determined that the ZBA’s granting of a particular prior application for an area variance did not constitute a precedent from which the ZBA was required to explain a departure, especially since the petitioners failed to establish that the prior application bore sufficient factual similarity to the subject application. Accordingly, the court held that the Supreme Court should not have disturbed the ZBA’s determination denying the petitioners’ application for area and lot-width variances.

Traendly v Zoning Board of Appeals of Town of Southold, 2015 WL 1915489 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at:

Several landowners and other individuals (Appellants) filed suit against Cargill Pork LLC and Bohr Farms (Respondents) alleging damages for temporary nuisance, negligence, and conspiracy due to alleged offensive odors emanating from a concentrated animal feeding operation (CAFO) owned and operated by Bohr Farms. Appellants alleged that their damages for temporary nuisance consisted solely of the loss of use and enjoyment of their property. Appellants also asserted that Bohr Farms was negligent, that Cargill was vicariously liable for the nuisance and negligence, and that Bohr Farms and Cargill engaged in a civil conspiracy. The circuit court entered summary judgment for Respondents, and determined that section 537.296 was constitutional and that the statute did not authorize an award of damages for Appellants’ alleged loss of use and enjoyment of their property. The court also denied recovery on Appellants’ negligence and civil conspiracy claims.

Unlike a common law private nuisance action, section 537.296 precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by the nuisance. Appellants argued that the statute effectuates a taking because limiting temporary nuisance damages to diminution of rental value requires Appellants to forfeit their right to the use and enjoyment of their properties for Respondents’ private benefit. However, the court found that the plain language of section 537.296.2 did not delegate any authority to private parties or authorize any landowner to create a nuisance. Furthermore, the statute provided just compensation by authorizing a plaintiff to recover the diminution in rental value in a temporary nuisance.

As to the equal protection claim, the court found that 537.296 provided obvious benefits to the large number of rural landowners who devote their property primarily to agriculture. Because of this, the Appellants were not a suspect class, and the claim was evaluated under a rational basis test. The court held that the statute rationally advances the legitimate state interest in promoting the agricultural economy by reducing the litigation risk faced by Missouri farmers while permitting nearby landowners to recover the diminution in property value caused by agricultural operations. Accordingly, the equal protection claim failed, and the judgment of the trial court was affirmed.

Linda Labrayere as Trustee of the Don E. Labrayere Trust v Bohr Farms, LLC, 2015 WL 1735494 (MO 4/14/2015)

The opinion can be accessed at:

This appeal arose from the trial court’s grant of summary judgment to Appellees on their Open Meetings Act claim, and the grant of partial summary judgment to Appellees on their Fair Housing Act claims, i.e., disparate treatment and disparate impact. There were two separate groups of Appellees in this case: Flat Iron Partners, LP, a Tennessee limited partnership; and Cottonwood Properties, Inc., Flat Iron and Cottonwood each bought tracts of land for the purposes of building multi-family housing. Flat Iron presented a “conceptual plan” to the City of Covington Municipal–Regional Planning Commission, in which Flat Iron represented that its proposed development would not be Section 8 housing, but would be a gated community, targeting individuals making between $30,000 and $40,000 per year. Following two meetings on November 28th and 29th, the BMA adopted an Ordinance amending the Zoning Ordinance to impose the temporary moratorium upon the issuance of building permits. Following this, several problems were found with the initial site plan that were not remedied by the time the application for a building permit was made. As such, the permit was denied.

Tennessee’s Open Meetings Act provides that “all meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee.” Tenn.Code Ann. § 8–44–102(a) (2002). In their motion for summary judgment, Appellees argued that the Appellants violated the foregoing statutory provisions by holding a private meeting of the BMA on November 27, 2000. Appellants countered with sworn deposition testimony of Mr. Keith Phelps, the Board of Alderman on November 27, 2000, which said there was no discussion of how the members would vote in that meeting. Since Mr. Phelps stated that the purpose of the meeting was to introduce the proposed moratorium, and to make relevant information available, there was no “meeting” under the Open Meetings Act. Therefore, the court found no violation and reversed the trial court’s grant of summary judgment in favor of Appellees on this issue.

As to the disparate treatment claim, in order to establish a disparate treatment claim under the FHA, Appellees needed to prove that a discriminatory purpose was a motivating factor in the Appellants’ actions. Appellees claimed that the undisputed facts showed that the Appellants, acting through the BMA, passed an illegal and void amendment to the City’s general ordinance for the specific purpose of, first, stopping Appellees from building high-density, MFUH developments in Covington. Appellants provided ample evidence to rebut the presumption of discriminatory treatment by providing legitimate, non-discriminatory reasons for their actions. Accordingly, the trial court erred in dismissing this claim at the summary judgment stage.

Flat Iron Partners, LP v City of Covington, 2015 WL 1952290 (TN App. 4/30/2015)

The opinion can be accessed at:

This case arose out of a zoning dispute over a live entertainment permit issued to Antoine’s Restaurant, L.L.C. by the Department of Safety and Permits. Antoine’s submitted an application for a live entertainment permit to the Department along with fourteen affidavits attesting to the nonconforming use of live entertainment at Antoine’s. The Director of the Department approved the permit for live entertainment based on a determination that Antoine’s had established by sufficient evidence the existence of a legal nonconforming use. The Vieux Carre Property Owners, Residents & Associates, Inc., French Quarter Citizens, Inc., and Carol Allen (collectively the “Plaintiffs”), filed an appeal with the Board of Zoning Adjustments seeking to overturn the determination that Antoine’s sufficiently established the existence of a legal nonconforming use. The BZA denied Plaintiffs’ appeal and upheld the decision of the Department, and the Plaintiffs sought judicial review of the BZA decision in the district court, which affirmed the BZA’s decision. Plaintiffs then appealed.

Here, Antoine’s sought a permit for the existence of its nonconforming use of live entertainment and submitted fourteen affidavits from employees and members of the family owning Antoine’s. Each affidavit indicated the length of time the affiant has worked at and been “familiar with all facets of the operations of Antoine’s,” dating back to 1955; and each affiant attested that Antoine’s “has had live entertainment with no interruptions in excess of six months as part of the Antoine’s experience” during the entire period of the affiant’s tenure at Antoine’s. Both the Director and the BZA provided Plaintiffs the opportunity to submit evidence contrary to the affidavits submitted by Antoine’s, but the Plaintiffs failed to do so. Accordingly, the court found that the BZA did not act arbitrary, capricious or unreasonably in making its decision to uphold the existence of a nonconforming use at Antoine’s.

Vieux Carre Property Owners v City of New Orleans, 2015 WL 1736870 (LA App. 4/15/2015)

Editor’s Note: Thanks to the Climate Law Blog for this posting –

The post was authored by Jennifer M. Klein, Esq. Associate Director & Fellow at the Sabin Center for Climate Change Law

Flooding from Hurricane Katrina constitutes a taking of property without just compensation by the United States government, according to a recent decision from the United States Court of Federal Claims in Saint Bernard Parish Government, et al., v. The United States. Judge Susan Braden found that the Army Corps of Engineers’ (the Corps) negligent design and failure to maintain the Mississippi River Gulf Outlet (MR-GO), a canal constructed by the Corps in the 1950s, exacerbated flood damage in parts of New Orleans. The increased flooding, although temporary, wrongfully deprived land owners of the use of their property. Judge Braden’s decision relied heavily on a 2012 Supreme Court case, Arkansas Game and Fish Commission v. United States, which held that temporary flooding caused by government action is not categorically exempt from Takings Clause liability.

Prior efforts to hold the government liable for flood damage from Hurricane Katrina were unsuccessful. An earlier case brought claims under the Federal Tort Claims Act (FTCA), rather than the Takings Clause of the United States Constitution. In that case, the Fifth Circuit Court of Appeals at first affirmed the trial court’s finding of liability, but then issued a subsequent ruling finding that the government was immune from the plaintiffs’ claims, because its actions in connection with the design and maintenance of MR-GO were largely discretionary. In contrast, the United States has waived sovereign immunity for claims brought under the Takings Claims through the Tucker Act, which grants jurisdiction to the Court of Federal Claims for claims for “damages in cases not sounding in tort.” Some legal scholars, including John Echeverria of Vermont Law School, have expressed concern that Saint Bernard Parish and Arkansas Game and Fish Commission allow the takings doctrine to improperly invade the traditional domain of tort law.

The apparent expansion of takings liability ushered in by these cases, however, will likely be tempered by the fact specific analysis required in cases asserting claims for temporary takings due to flooding. As Judge Braden explained, a plaintiff asserting a claim for a temporary taking must establish: (1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality. Moreover, the question remains whether liability exists only where the government negligently designs and maintains infrastructure, or whether it is possible to hold the government accountable where it decides not to build at all despite known risks.

The finding in Saint Bernard Parish that the government is liable for inadequately preparing federally-constructed and maintained infrastructure for severe weather events is significant in light of the increasing risk of such events due to climate change. Notably, Saint Bernard Parish, if it survives appeal, expands government liability from situations in which the government deliberately causes flooding, for example by releasing water from a dam, to include situations in which inaction by the government exacerbates flooding from severe weather. This developing area of law will also have broad implications for local and state governments seeking to prepare for – or deliberately deciding not to prepare for – climate change impacts.

The opinion can be accessed at:

Editor’s note: Special thanks to the RLUIPA Defense Blog for this posting.

A federal court in Michigan has ruled against a Muslim group in its RLUIPA suit against Pittsfield Charter Township after finding that the group lacked a legally cognizable property interest to sustain its claims. To establish a RLUIPA claim, a plaintiff must have “an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” 42 U.S.C. § 2000cc-5(5). This case – Muslim Community Association of Ann Arbor v. Pittsfield Charter Township (E.D. MI March 20, 2015) – is noteworthy because it is not often that the validity of a real property interest is an issue in RLUIPA litigation. Here, the Muslim group, Michigan Islamic Academy (“MIA”), had permission to use the property by the owner, but never acquired a property interest in accordance with state law.

MIA is a school that provides secular and Islamic religious education to preschool through grade twelve. MIA believed that its existing 10,000 square foot facility was too small to accommodate its religious needs and began looking for a new site to use as a school. It eventually found a new site, consisting of more than 26 acres of undeveloped land zoned as planned unit development (“PUD”). To further its development in the PUD zone, MIA submitted a petition for a zoning amendment and an area plan– even though it claimed that it did not need to do so – but the petition was ultimately denied. Thereafter, MIA brought suit, contending that the denial of its petition violated: (a) RLUIPA’s substantial burden, nondiscrimination, and equal terms provisions; (b) the Establishment Clause under the state and Federal constitutions; and (c) the state and federal Equal Protection Clause.

The district court entered summary judgment in favor of the Township after concluding that MIA did not have a sufficient property interest to maintain its RLUIPA claims. Although MIA had permission to use the property to develop a school, it never acquired a legally cognizable property interest to do so in accordance with Michigan law. Specifically, under Michigan law, “[a] conveyance of an interest in land must be in writing and comport with the statute of frauds.” Marina Bay Condos., Inc. v. Schlegel, 167 Mich. App. 602, 606 (1988). Here, there was no evidence that the alleged conveyance was ever made in writing, as required by state law, regardless of any promise by the owner to allow MIA to use the property. Accordingly, the court rejected MIA’s RLUIPA claims.

MIA’s claims (RLUIPA and constitutional) failed for the additional reason that they are not ripe. To satisfy ripeness, MIA must seek a decision from the Zoning Administrator as to whether it must submit a petition to amend the PUD or whether its proposed school is a “small-scale school,” as argued by MIA, and therefore permitted on the property as presently zoned.

The Township may have dodged a bullet, because the court describes in its decision some troubling behavior by one of the Township’s Planning Commissioners who voted to recommend denial of the petition. This member not only lived in the neighborhood of the proposed school, but she also actively encouraged community members to oppose MIA’s proposal. She admitted in her deposition that she went from house to house and knocked on doors to distribute opposition materials to residents. She also coached community members on how to effectively oppose the petition and shared specific talking points and arguments to this end.

This may not be the last we hear of this case, as the court carefully notes that MIA may reassert its claims if it acquires a legally cognizable interest in the property or another person or entity that does have such an interest in the property may assert these claims. The court also states that if the Zoning Administrator concludes that MIA cannot build a school on its property as presently zoned, the case may be reopened with an amended complaint naming the new plaintiff.

Muslim Community Association of Ann Arbor v. Pittsfield Charter Township, 2015 WL 1286813 (ED MI 3/20/15)

The opinion can be accessed at:

Petitioners owned two adjacent parcels of real property located in the general business zoning district of the Village of Monroe. In early 2012, the petitioners entered into a contract to sell the parcels to Goddard Development Partners IV, LLC, which Goddard intended to use the parcels for tire sales and automotive repair services. The Village’s Zoning Board of Appeals denied Goddard’s application for an interpretation of the zoning provisions of the Code of the Village of Monroe that the proposed use was a use permitted as of right. The ZBA alternatively determined that the proposed use of the properties for tire sales was instead a conditional use, requiring a conditional use permit and site plan approval. The Zoning Board of Appeals of the Village of Monroe appealed from a judgment of the Supreme Court, Orange County, which annulled the determination, and directed the Building Inspector of the Village of Monroe to deem the proposed use to be a permitted use.

Here, under the Zoning Code, uses permitted as of right and conditional uses were set forth in two zoning schedules. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I–F included, “retail sales” and “repair service, including automotive”. However, column C listed “tire sales and service” among the conditional uses. Section 200–3 of the Code of the Village of Monroe provided that “in the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control.” Accordingly, the ZBA’s determination that the proposed use of the properties for tire sales was a conditional use was confirmed. 

Robert E. Hayell Revocable Trust v Zoning Board of Appeals of Village of Monroe, 2015 WL 1810220 (NYAD 2 Dept. 4/22/2015)

The opinion can be accessed at:

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