Michael Selig, through a limited liability corporation called Aerotierra, purchased some land that he intended to use as a private airport/heliport. Selig filed a zoning application, asking for a special exception and variance. The North Whitehall Township Zoning Hearing Board (“ZHB”) denied his application, determining that a heliport was not a permitted use on the property, and that Selig did not meet the requirements for a special exception. Selig filed an appeal in the Court of Common Pleas of Lehigh County, which dismissed his appeal, finding that Selig lacked standing because the property was owned by Aerotierra, LLC, and the Commonwealth Court of Pennsylvania also dismissed his appeal for lack of standing. The District Court dismissed Selig’s complaint without prejudice for failure to state a claim upon which relief could be granted. Selig then filed an amended complaint, arguing that the ZHB and Judge J. Brian Johnson violated his substantive due process rights. The District Court dismissed the amended complaint with prejudice as to Judge Johnson on the basis of judicial immunity, and dismissed it as to the ZHB because Selig lacked standing to bring a substantive due process claim. The Court also denied Selig’s motion for reconsideration, and Selig appealed.

On appeal, Selig argued that he had standing to sue because he had some type of beneficial or equitable ownership interest in the property under Pennsylvania law. The court found that nothing other than full property ownership warranted substantive due process protection. However, even if Selig had a protected property interest in the property during the zoning proceedings, the court found the dismissal of Selig’s complaint was proper, since the allegations of the complaint did not state a plausible substantive due process claim. Here, Selig was required to show that the ZHB deprived him of a protected property interest and that such deprivation “shocks the conscience.” The court held that complaints related to zoning requirements, inspections, and permits were “frequent in land use planning disputes” and that while adversely affected property owners could couch such complaints as abuses of legal authority, they do not rise to the level of substantive due process violations.

Selig v North Whitehall Township Zoning Hearing Board, 2016 WL 3440450 (3rd Cir. CA 6/23/2016)

In 1998, St. Tammany Parish adopted a home rule charter in accordance with its constitutional authority under La. Const. art. VI, § 17. Pursuant to the parish’s home rule charter, the zoned area at issue, which was located over a significant source of drinking water, was designated wholly residential in 2010. Despite the existing residential zone designation, the Commissioner issued a drill permit for a well in the restricted zone area in 2014. The Court of Appeal held that the Commissioner’s power to issue drill permits was an exercise of the police power of the state which may not be abridged pursuant to La. Const. art. VI, § 9(B).

The court noted that while the Court of Appeal was correct that the exercise of the police power of the state may not be abridged, government zoning codes are also exercises of state police power. The Court of Appeal’s reasoned that the Commissioner’s authority under state law preempted the parish’s zoning ordinances. However, the court found that this case was not resolved on preemption, because the local ordinances in question governed a wholly distinct subject matter (i.e., zoning and land use planning) from the statutory framework at issue. Since land use ordinances such as zoning codes are not duplicative of state law, they were therefore found not subject to preemption by state oil and gas laws.

St. Tammany Parish Government v Welsh, 2016 WL 3533521 (LA 6/17/2016)

Petitioners-plaintiffs owned land in the Town of Greig situated in a rural residential district, and filed a special permit application seeking permission to install 7,600 feet of underground pipeline for the purpose of transporting water from their property to a “load out” facility in a separate town. It was petitioners’ intent to collect water from the naturally occurring aquifer under their land and to store such water for the purpose of bulk sale. Planning Board of Town of Greig, refused to consider the application, thereby forcing petitioners to commence an initial hybrid CPLR article 78 proceeding and declaratory judgment action. The Supreme Court granted that petition-complaint, in part, by ordering the Planning Board “to consider the application on the merits according to lawful procedure and standards.” The Planning Board thereafter granted the special permit, with several condition that no construction on the pipeline may commence until the use of wells on the other property of the applicant were approved for commercial uses by the Town of Greig. Petitioners commenced a second hybrid CPLR article 78 proceeding and declaratory judgment action seeking to strike that condition from the special permit and a declaration that the Planning Board was without legal authority to regulate the use of water resources or to require petitioners to secure any additional approval with regard to water extraction from their property. The court consolidated the two proceedings/actions, but denied the relief requested in the second petition as well as petitioners’ request for a declaration.

The court found that contrary to petitioners’ contention, the Water Resources Law (ECL art 15) did not preempt local zoning laws concerning land use, but only preempted those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state’s territorial limits”. Here, the court noted that nothing in the legislation or legislative history indicated any intent to preempt the local government’s power to regulate “land use within its borders”, as the statute regulated how a natural resource may be extracted but did not regulate where in the Town such extraction may occur.

Next, the court addressed the condition at issue, which was that, before the pipeline is constructed, petitioners must obtain approval to use the wells on their property for commercial uses.

The court held that the separation of business from nonbusiness uses was an appropriate line of demarcation in delimiting permitted uses for zoning purposes. Therefore, business uses most certainly could be excluded from residential districts, whose primary purpose is to provide an environment for “safe, healthful and comfortable family life rather than the development of commercial instincts and the pursuit of pecuniary profits.” Accordingly, the court affirmed the denial of the relief requested in the second petition.

Smoke v Planning Board of the Town of Greig, 138 A.D. 3d 1437 (4th Dept. 4/29/2016)

Posted by: Patricia Salkin | June 12, 2016

IL Legislature Passes Bill Addressing Zoning and School Districts

Editor’s Note: The following entry was first posted to the Municipal Minute Blog – See, http://municipalminute.ancelglink.com/2016/06/school-zoning-bill-passes-both-houses.html

Illinois Senate Bill 2186 passed both houses of the General Assembly. This bill addresses local zoning controls over school districts. As long-time readers know, the Illinois Supreme Court made it clear that schools are subject to local zoning in the case involving the Crystal Lake School District’s installation of bleachers on its property that violated the City’s zoning regulations.
The version of SB 2186 that was introduced was straightforward. That bill would have amended the School Code to make it clear that schools are subject to local zoning, consistent with the Illinois Supreme Court’s decision referenced above. The version of SB 2186 that was approved by both houses, however, goes beyond the Supreme Court’s ruling, and places additional demands and burdens on local zoning officials in processing school zoning applications.
First, the bill prohibits the local zoning authority (municipality, county, or township) from regulating educational activities and frustrating school district’s statutory duties.
Second, the bill requires the local zoning authority to change its otherwise applicable zoning process so that school districts are subject to a special, streamlined process.
Third, the bill requires the local zoning authority to “minimize the administrative burdens involved in the zoning review process” specially for school districts.  Examples include the following:


  1. reduce application fees and costs for school districts.
  2. limit the number of times the school district must amend its site plans.
  3. limit the number of copies of site plans and any other documents required to be submitted by the municipality.
  4. expedite the zoning review process to require the local zoning authority to render a decision on the school district’s zoning application within 90 days after a completed application is submitted.
These new procedural requirements could certainly place an undue burden on local zoning authorities to treat school districts more preferentially than any other zoning applicant. They are also not very clearly drafted, which could create confusion and increase the likelihood of disputes between school districts and municipalities. This bill raises a number of questions, among the following:
  • How many site plan amendments are acceptable? 2, 3, 10?
  • What about the number of copies of plans? Enough for the hearing body and corporate authorities? What if the school district only provides 3 copies, and there are 7 members on the zoning hearing body – is the local zoning authority responsible for making the additional copies? What about copies for the corporate authorities? Why place that burden on another governmental entity, when it is the school district that is requesting the zoning relief?
  • What if other development applications are submitted prior to the school district’s submittal – must these applications be deferred to make sure the municipality can render a decision on the school district’s application within the 90 days? How does that affect due process for these other applicants?
  • Who decides whether an application is complete?
  • What is the remedy if the local government fails to render the decision in 90 days?                                                                                                                                                                                 The bill was sent to the Governor at the end of June and is awaiting action.

On June 7, 2016 the US EPA issues technical guidance for assessing environmental justice in regulatory analysis.  See, https://www.epa.gov/environmentaljustice/technical-guidance-assessing-environmental-justice-regulatory-analysis

From the EPA website: “The Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance) is designed to help EPA analysts evaluate potential environmental justice (EJ) concerns associated with EPA regulatory actions. While the EJ Action Development Process Guide issued in May 2015 (Guidance on Considering Environmental Justice During the Development of an Action) provides direction on when EJ should be considered during rulemaking, this latest guidance provides direction on how to do so in an analytical fashion. It directs analysts to assess whether EJ concerns exist prior to the rulemaking and whether such concerns are exacerbated or mitigated for each regulatory option under consideration. The EJ Technical Guidance takes into account EPA’s past experience in integrating EJ into the rulemaking process, and underscores EPA’s ongoing commitment to ensuring the fair treatment and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

“The EJ Technical Guidance makes four main recommendations designed to ensure consistency across EPA assessments of potential EJ concerns for regulatory actions. The recommendations encourage analysts to conduct the highest quality analysis feasible, recognizing that data limitations, time and resource constraints, and analytic challenges will vary by media and circumstance. They are not designed to be prescriptive and do not mandate the use of a specific approach. The recommendations are:

  • Analysts should use best professional judgement to determine the combination of quantitative and qualitative analysis that is possible and appropriate for each regulatory action; for regulatory actions where impacts or benefits are quantified, some level of quantitative analysis for EJ is recommended.
  • Analysts should integrate applicable questions during the planning and scoping and problem formulation stages of the risk assessment.
  • Analysts should follow identified best practices for incorporating potential EJ concerns into regulatory analysis, when feasible and applicable.
  • Analysts should consider the distribution of costs associated with implementing a regulatory option from an EJ perspective when appropriate, feasible, and relevant.”

“The EJ Technical Guidance is organized into seven main sections and three appendices.

  • Section 1 provides an overview of the guidance.
  • Section 2 describes the key definitions used throughout the guidance.
  • Section 3 highlights key analytic considerations, including three questions to frame the analysis, data and other analytic considerations, and the four main recommendations for guiding the analysis.
  • Section 4 discusses select contributors to and drivers of the uneven distribution of health risks that often occur among communities with potential EJ concerns.
  • Sections 5 provides technical guidance on how to incorporate consideration of potential EJ concerns into EPA’s human health risk assessment framework during the risk assessment planning phase.
  • Section 6 provides analysts with guidance on how to evaluate what level of analysis is feasible (qualitative, quantitative or some combination); the types of information that should be presented and methods that can be used to generate this information; and a discussion of other analytic considerations that could affect the results of the assessment.
  • Section 7 provides a summary of research gaps and data needs specific to improving EJ analysis for the Agency.
  • The appendices provide a suite of examples. Appendix A lists other EPA resources that may be helpful when conducting risk assessment or economic analysis. Appendix B includes examples of approaches used when considering EJ in exposure and effects assessment. And, Appendix C summarizes information about how EJ has been analyzed and considered in 11 recent regulatory actions.”

Editor’s Note: This post originally appeared on the RLUIPA Defense Blog and is reposted with permission.  See, https://www.rluipa-defense.com/2016/04/alabama-sex-offender-religious-land-use-case-to-proceed

The U.S. District Court for the Middle District of Alabama has ruled that Ricky Martin may proceed with his religious land use and other claims against the Chilton County District Attorney Randall Houston.  The Middle District of Alabama case Martin v. Houston involves Pastor Ricky Martin’s Triumph Church in Clanton, Alabama.  Martin began a transitional housing program for men recently released from Alabama correctional facilities, many of whom were sex offenders.  As part of his religious mission, he strives to help these individuals transition back into society.  To do so, he set up 5 mobile homes on his land, all within 300 feet of each other.  Sex offenders Martin hoped to help lived together in these mobile homes.

Alabama lawmakers adopted legislation (Alabama Code § 45-11-82) (the “Act”) that prohibited individuals whose names were listed on the Alabama sex offender list from living together in the same home, and further provides that offenders cannot live on the same property as another offender unless the homes are at least 300 feet apart.  Violation of the Act constitutes a public nuisance with fines between $500 and $5,000 for each violation.  The Act does not apply to offenders who are married or related.  The Act applies only to Chilton County (which includes Clanton), but nowhere else in Alabama.

Martin argues that the Act was designed to affect only his property – to eliminate the transitional housing settlement.  Fearing fines, Martin evicted all men living at his property.  Martin sued alleging that the Act violates RLUIPA’s substantial burden provision and the Free Exercise Clause of the federal Constitution.  He also argues that the Act is an unconstitutional bill of attainder, and raises a Fourteenth Amendment procedural due process claim.

Defendant Houston moved to dismiss the claims, first arguing that the Court lacked subject matter jurisdiction, and, second, that each action fails to state a claim upon which relief could be granted.  The Court found that the claims were justiciable and that it had subject matter jurisdiction over them.

The Court found that Martin had not sufficiently alleged one of the three “jurisdictional hooks” to present a colorable RLUIPA substantial burden claim.  The Court, however, denied the motion to dismiss with respect to this claim, since Houston did not seek dismissal on this ground, and it will allow Martin to attempt to establish one of the hooks.  For a court to entertain a substantial burden claim, the plaintiff must establish either that the substantial burden: (a) is imposed on a program that received federal financial assistance; (b) affects commerce among the several states; or (c) is imposed in the implementation of a land use regulation under which the government makes an individualized assessment.  Here, the Court found that the Act was not an individualized assessment, since it did not involve a system of granting land use permits.  Nor were there sufficient allegations to support either of the other two jurisdictional hooks.

The Court also found that Martin had sufficiently pleaded a Free Exercise Claim: “Martin’s pleading indicates that he holds sincere religious beliefs.  As part of his Christian faith, he feels that he has a duty to serve others.  He especially is compelled to serve those in need of help, and [sex offenders] fall into that category.”  The Court also suggested that based on the facts before it, it appeared that Martin could prevail on such a claim.  According to the Court, strict scrutiny should apply because it appears that the Act improperly targets Martin’s religious activity.  Further, the Court observed that at this stage, there was no evidence that the Act served a compelling governmental interest advanced in a narrowly tailored manner:

Even if the Act serves a compelling governmental interest in preventing some type of harm posed by the clustering of sex offenders, it allows them to live in clusters so long as the sex offenders are related.  What is more, it allows the same clustering to take place throughout the other sixty-six counties in the state.  This indicates that the Act proscribes some conduct that is protected by the First Amendment, but fails to restrict other conduct that inflicts the same harm the Act was designed to prevent.

Martin’s unconstitutional bill of attainder and procedural due process claims were also allowed to proceed.


Philip M. Edwards and Nina S. Edwards applied to the Zoning Board of Appeals of the Village of Southampton for an area variance allowing them to demolish an existing cottage on their property and replace it with a larger cottage on a different part on their property. After a hearing, the Zoning Board granted the Edwards’ application. The petitioner, the owner of the property adjacent to the subject property and who opposed the application, commenced this proceeding seeking review of the determination granting the application. The lower court denied the petition and dismissed the proceeding.

On appeal, the court found that the Zoning Board’s determination that the Edwards required an area variance rather than a use variance had a rational basis in the record, and was not arbitrary and capricious, since they were not seeking to change the essential use of the property. Additionally, the Zoning Board’s determination to grant the area variance had a rational basis as the Zoning Board engaged in the required balancing test and considered the relevant statutory factors. While the court agreed with the petitioner that the proposed variance was substantial, there was no evidence that the granting of the variance would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Moreover, the proposed variance would have a beneficial impact on the environment by eliminating wetlands set-back nonconformities and removing the existing septic system that was located in the wetlands area.  Accordingly, decision below was affirmed.

Wambold v Southampton Zoning Board of Appeals, 2016 WL 3177020 (NYAD 2 Dept. 6/8/2016)

The Town of Huntington Zoning Board of Appeals denied the site plan application of the petitioner 7–Eleven, Inc., which sought to demolish an existing structure on a certain parcel of real property currently being utilized as a restaurant and to construct a convenience store on the property. In this appeal, the petitioners contended that the Supreme Court improperly upheld the ZBA’s decision to deny 7–Eleven approval for a “change of use” under section 198–104 of the Code of the Town of Huntington.

Town Code § 198–104 provides that “a nonconforming use may be changed to … any use which the ZBA shall find to be less intensive and more in character with the uses permitted in the district in which the nonconforming use is located.” The ZBA determined that since utilization of the site as a restaurant was permitted under the zoning regulations of the district in which the property was located, 7–Eleven could not rely on Town Code § 198–104 to change the purpose for which the property was being utilized to a free-standing convenience store, which was a prohibited use of the property under the zoning regulations of the district in which it is located. The petitioners asserted that since the conditions on the site currently did not conform to various dimensional zoning regulations in the district in which the property was located, 7–Eleven satisfied the definition of “nonconforming use” under the Town Code and therefore the ZBA erred in finding that Town Code § 198–104 was inapplicable.

The Court found that the Town Code did not apply to uses that are already in conformity with the zoning regulations of the district in which the property is located. The Court further noted that if, Town Code § 198–104 were read to apply to uses already in conformity, it could be used for the purpose of changing conforming uses so that they are in violation of applicable zoning regulations. Accordingly, the Supreme Court’s decision to uphold the denial of the “change of use” was affirmed.

7-Eleven, Inc. v Town of Huntington, 2016 WL 3177149 (NYAD 2 Dept. 6/8/16)

Posted by: Patricia Salkin | June 7, 2016

Sewer Connection Must Be By The Least Restrictive Means

Editor’s note: This post originally appeared on the RLUIPA Defense Blog and is reposted with permission. See: https://www.rluipa-defense.com

Barbara L. Yoder and Joseph I. Yoder (“Owners”) own a home in Sugar Grove Township, Pennsylvania (“Township”), which has a mandatory sewer connection ordinance (the “Ordinance”), requiring connection to the Sugar Grove Area Sewer Authority’s (“Authority”) infrastructure.  According to the Ordinance, any property that abuts a sewer system constructed by the Authority must connect to the system at the owner’s expense.

The Owners are Old Order Amish, and one tenet of their religion is to disavow the use of electricity, including running water—which requires the use an old-fashioned privy (outhouse). In 2008, the Owners and the Authority entered into a Sewage Services Agreement (Agreement). The Owners agreed to pay the connection fee, past due sewer charges, future monthly charges, and dispose of their privy waste at least once a year into the Authority’s pumping station.  In 2010, the Authority filed a municipal complaint against the Owner’s for non-payment of sewer fees.  The Authority also filed a separate action for breach of the Agreement and to seek injunctive relief requiring connection to the sewer system.  The trial and appeals courts found in favor of the Authority and directed the Owners to connect to the sewer system.  If the Owners failed to connect, the court authorized the Authority to enter the property and connect the dwelling to the sewer system at the Owner’s expense.  Paragraph 5 of the order provided that:

[The Authority] shall, in the process of connecting the property to the sewer system, take due care as to [Owners’] religious convictions, and shall proceed in a manner so as to pose the least possible intrusion on [Owners’] religious convictions and beliefs.

The Owners and the Authority continued to disagree over the method of connection.  The Authority issued a letter stating that the Owners must open an electricity account in order to run a grinder pump required for service on their property.  In response, the Owners filed a petition for injunctive relief.

Ater a two day hearing the court ruled that the Owners would not be required to open an electricity account, although they could be billed for usage through the Authority, and “[the Authority] may connect [Owners’] premises to [the Authority’s] sewer system in a manner that shall be at the [the Authority’s] sole discretion and at [Owners’] sole expense.  This Order supersedes Paragraph 5 of the [2013 Order] at Docket No. 191 of 2012.”

The Owners appealed the decision, arguing that the trial court had previously ordered that the Authority require connection in a manner that was least restrictive to the Owners’ religious exercise, and had impermissibly modified the court’s final order.  They also argued that the trial court erred in not considering all of the elements for a preliminary injunction.

On review, the appeals court agreed with the Owners that the trial court had impermissibly modified the 2013 order requiring the sewer connection.  It therefore reinstated the original paragraph five. It also remanded the decision to deny the requested injunction, which sought immediate injunctive relief from an electric-dependent connection.

The appeals court found that the trial court had erred in not considering whether requiring connection through the use of electricity constitutes the least intrusive means of interference with the Owners’ religious exercise:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by non-electric means, or, failing that, electricity generated by natural, non-electricity provider means.  Importantly, the trial court also did not address the Owners’ alleged clear right to the least intrusive means of a mandatory connection.

The Commonwealth Court of Pennsylvania’s decision in Yoder v. Sugar Grove Area Sewer Authority, No. 1956 C.D. 2015 (Pa. Commw. Ct. 2016) is available here.  The decision is an important reminder that while ordinances such as this one (requiring a sewer connection) may not be a “land use regulation” invoking RLUIPA, the First Amendment to the U.S. Constitution provides very similar, if not identical protection, in other contexts.

Applicants Cynthia and Charles Burns owned a two-unit residential building in Burlington. The property transfer tax return for the property’s purchase described the building as a “multi-family dwelling,” but the purchase and sale agreement entered into by applicants and the prior owner in January 2014 described the property as a “lot of land with a two unit apartment building,” though the prior owner later executed an addendum to the agreement stating the property had been continuously used as a “duplex/multi-family dwelling” since 1967. In March 2014, a neighborhood property owner, who was not one of the neighbors involved in this appeal, submitted a zoning enforcement complaint form to the City of Burlington Code Enforcement Office, in which she stated that applicants were conducting modifications and interior renovations to expand their living space to convert a single-family-home into two apartments, without any zoning permit from the city. An employee in the Burlington Code Enforcement Office with a title of “zoning specialist” responded by stating that the Code Enforcement Office had investigated the complaint and determined that the building had been used as a duplex from at least 1969 and that uses that preceded the adoption of the 1973 Burlington zoning ordinance were presumed valid because of the loss of records of that time. The letter further stated that the decision was appealable to the Burlington Development Review Board (DRB) within fifteen days of the decision, and neither the complainant nor any other interested party appealed the May 15, 2014 decision. The decision was not made available to the public, and no notice was provided to neighboring landowners or other potential interested parties.

In this case, a group of nineteen Burlington residents appealed from a decision from the Superior Court, Environmental Division, which declined to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. § 4472(d). Here, neighbors had no way of knowing that a complaint to the Burlington Code Enforcement Office had been made and similarly no way of knowing how the complaint was addressed. Only when applicants filed the certificate of non-applicability of permit requirements was there public notice of applicants’ plans and the zoning administrator’s approval of those plans and by then it was too late to contest the approval under the decision of the Environmental Division. Moreover, while the letter from the zoning specialist stated that the complainant could obtain review of the decision by an appeal to the DRB within fifteen days, the ordinance provides only for review of zoning administrator decisions in that way.

Accordingly, the court found that the letter sent to the initial complainant in response to her complaint was not a decision of the zoning administrator. Because it is not a decision of the zoning administrator, the complainant did not have to appeal it to the DRB to avoid the invocation of § 4472(d). As a result, it did not preclude neighbors from requesting the zoning administrator to enforce the zoning ordinance against applicants and from appealing to the DRB from the zoning administrator’s decision that a permit was not needed. The Superior Court’s holding was therefore reversed and remanded.

In re Burns Two-Unit Residential Building, 2016 WL 3031694 (VT 5/27/2016)

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