Posted by: Patricia Salkin | July 30, 2015

NY Lower Court Rules Eruv is Not a Sign…Federal Case Continues

Editor’s Note – This post appears on the RLUIPA Defense Blog here –

For the past 5-plus years, East End Eruv Association (“EEEA”) has been involved in federal litigation seeking approval to construct an eruv in accordance with its religious beliefs (East End Eruv Association v. Westhampton Village, Village of Quogue, Town of Southampton, et al.) (referenced here as the “main case”). According to EEEA, an eruv is “a largely invisible unbroken demarcation of an area.” Within an eruv, Jewish residents may push or carry objects in the public domain on Sabbath and Yom Kippur, which they would be unable to do without an eruv. EEEA wants to construct the eruv on existing utility poles and attach lechis, wooden strips no larger than 1”x4”x40,” which would form the boundary of the eruv through three towns within the Hamptons.

In 2013, EEEA filed a similar suit against the Town of Southampton to construct an eruv (the “Southampton case”), after the court in the main case ordered EEEA to engage in the administrative approval process in Southampton in order to exhaust its administrative remedies. In the Southampton case, EEEA claims that instead of facilitating approval of the eruv, “the Town’s representatives initiated a cycle of delay and misinformation that prevented EEEA from obtaining a final decision from the ZBA for more than a year and a half.”

Each case has a long and complicated procedural history, but in short, EEEA claims that it does not need local approval to construct the eruv because it entered private license agreements with owners of the utility poles necessary to erect the lechis. EEEA also claims that the defendants interfered with the agreements by informing the pole owners that municipal approval was required prior to construction. The main case complaint alleges that such action violates the First Amendment, RLUIPA, § 1983, and § 1984, and has caused a tortious interference with EEEA’s license agreements.

After EEEA sought approval in Southampton, it filed a state-court appeal of Southampton’s determination that the lechis were subject to Southampton’s Sign Ordinance. EEEA also challenged the municipality’s denial of a use variance to erect the lechis. The state court found in favor of EEEA, ruling that application of the Sign Ordinance was arbitrary. EEEA reported the decision in a letter to Judge Tomlinson in the Southampton case, and requested that the court lift the current stay in that federal action. EEEA summarized the state court decision as:

Judge Farnetti held that Southampton’s Chief Building Inspector’s interpretation that lechis are signs “is contrary to the language of the law, irrational and unreasonable in that it does not comport with the Sign Ordinance’s intent.” He further found that:

[T]he boundaries are invisible as the lechis are not discernable. Therefore, unpersuasive is any argument that the lechis are on poles in the public right-of way. Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.

Assuming, arguendo, that the Sign Ordinance applied, the state court also concluded that it was erroneous for the ZBA to deny EEEA’s request for a variance. Although the court recognized that religious uses are not exempt from zoning, it also noted that a municipality is obligated to “make every effort to accommodate” a religious use. Since the ZBA failed to make any effort to accommodate or even to suggest accommodations to EEEA, its denial was deemed an abuse of discretion.

In its letter, EEEA also argues that the state court decision “should also be considered in connection with the parties’ pending submissions on whether the Quogue Village Code applies to lechis,” in the main case. According to EEEA, the decision “compels the conclusion that the lechis do not constitute ‘devices’ or ‘encroachments’ in a public right of way under a rational and reasonable interpretation of the Quogue Village Code.”

East End Eruv Association v Town of Southampton, (Suffolk Co. Sup. Ct. 7/9/2015)

The opinion can be accessed at:

Showtime Entertainment, LLC (“Showtime”), owner of a lot within town’s adult-entertainment overlay district, brought action against town and two members of town’s board, alleging, inter alia, that zoning bylaws relating to size, height, and operating hours of adult-entertainment establishments, as well as ban on sale and consumption of alcohol at such establishments, constituted impermissible prior restraint on freedom of expression. After court determined that bylaws’ special-permitting requirement was an impermissible prior restraint and granted owner’s first motion for summary judgment, the parties moved and cross-moved for partial summary judgment on remaining counts of complaint. The United States District Court for the District of Massachusetts, entered summary judgment in favor of town, and Showtime appealed.

Under intermediate scrutiny, Mendon was required to show that its interest in crime deterrence is substantial, and that its restriction on expressive activity was narrowly tailored to advance that interest without at the same time banning or significantly restricting a substantial quantity of speech that did not create the evils the city sought to eliminate. The First Circuit reversed the grant of summary judgment in favor of Mendon as it related to the bylaws regarding the size, height, and operating hours of adult-entertainment businesses, and remanded this claim to the district court for entry of summary judgment in favor of Showtime. The court certified to the SJC the questions of whether there was a countervailing State interest, and if so, whether the ban was adequately tailored.

The court found that the demonstration of this countervailing State interest in the form of the mitigation of negative secondary effects was shown by evidence in the judicial record or legislative history sufficient to conclude that the restraint on speech was required for the protection of the public. Because Showtime offered no affirmative evidence to counter the town’s determination that a countervailing State interest existed, the court found that there was a sufficient State interest to support the ban. Having concluded that the town had sufficient evidence to believe that alcohol and adult entertainment businesses lead to an increase in crime and that crime prevention is a substantial government interest, the court then examined whether the bylaw was “adequately tailored.” After considering hypotheticals of various theatrical and artistic performances, the court found that banning all manner of expression at establishments licensed to serve alcohol on the basis that the expression features nude dancing is not the logical response to the determination that alcohol service in physical proximity to adult businesses increases the incidence of crime. Thus, the court found that the ban was not narrowly tailored.

Showtime Entertainment, LLC v Town of Mendon, 2015 WL 4094282 (MA 7/8/2015)

In a proceeding to review a determination of the Village of Russell Gardens Zoning Board of Appeals denying the petitioner’s application for an area variance, the appellate court found that in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors, as long as its determination balancing the relevant considerations is rational. The court further noted that separate parcels of land in common ownership which have frontage on parallel streets and a common rear boundary are deemed not to have merged where it is shown that, during the period of common ownership, the parcels were never used in conjunction with one another and neither parcel materially enhanced the value or utility of the other. Here, the evidence before the zoning board showed that the subject lots, one containing a pre-existing single-family dwelling and the other two vacant, were used in conjunction with one another from 1948 until their purchase by the petitioner in 2011. Thus, the determination of the Zoning Board of Appeals of the Village of Russell Gardens that the subject lots had merged had a substantial basis and was supported by the evidence in the record. This decision was further supported by the facts that: the variances requested were substantial, the hardship was self-created, and the granting of the petitioner’s request for variances would have resulted in the creation of two more nonconforming lots in a unique neighborhood. Accordingly, the court held that the ZBA’s denial of the proposed area variances was supported by a rational basis.

Patrick v Zoning Board of Appeals of Village of Russell Gardens, 2015 WL 4095898 (NYAD 2 Dept. 5/21/2015)

Arizona Revised Statutes (“A.R.S.”) § 9–499.13, as amended in 2014, prohibits outright municipal bans on sign walkers, i.e., persons who wear, hold, or balance a sign. The Scottsdale Revised Code (“S.R.C.”) § 16–353(c), which was enacted prior to A.R.S. § 9–499.13, imposed a ban on sign walkers who conduct business on public thoroughfares, including sidewalks. The City filed a declaratory judgment action, arguing that because it is a charter community under the Arizona Constitution, the State is precluded from interfering with the City’s right to control local matters, including the regulation of its sidewalks, the safety of city inhabitants, and municipal aesthetics. The superior court granted the State’s motion for summary judgment, finding that “the state has demonstrated a matter of sufficient statewide concern and a desire to preempt the ‘sign spinner’ field.” The court further found that “the valid local municipal interests of regulating a city’s own sidewalks, aesthetics, and safety are not purely local matters to which the city has a sovereign right to regulate in a manner inconsistent with the state law.”

A municipal ordinance is preempted by state law when: “(1) the municipality creates a law in conflict with the state law, (2) the state law is of statewide concern, and (3) the state legislature intended to appropriate the field through a clear preemption policy.” The issue of this case dealt with the second prong of whether this was a matter of statewide concern. The State argued that the ordinance, like A.R.S. § 9–499.13, addressed matters of statewide concern, namely police powers of the state, zoning and sign regulation, and aesthetics. This statute applies in all municipalities in Arizona with equal force, and did not prescribe different rules for different places, but instead operates uniformly from community to community. Finally, the City argued that the state statute prevents reasonable time, place, and manner restrictions on sign walkers. However, the court found that the state statute simply prohibited outright bans on sign walkers and required that rules regulating conduct on public thoroughfares be uniform as between sign walkers and all other individuals. Thus, the statute expressly allowed for reasonable time, place, and manner regulations.

For the aforementioned reasons, the court found that 23A.R.S. § 9–499.13 preempts local ordinances that impose a blanket prohibition on sign walkers conducting business on public sidewalks and thoroughfares. The superior court’s order granting the State’s motion for summary judgment was therefore affirmed.

City of Scottsdale v State of Arizona, 2015 WL 3982743 (AZ App. 6/30/2015).

Mark Slusarczyk was cited for violating City of Eagle River, Wis., Zoning Ordinance § 106–683, which provides: “Off-premises signs are allowed by a conditional grant. One double-sided sign is allowed per business with a maximum size of 180 square feet per side.” The citation he received stated that Slusarczyk had an “off premise sign on property promoting other business activity.” The City of Eagle River, Wis., Zoning Ordinance § 106–631 defined an off-premises sign as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” Slusarczyk appealed a trial court judgment finding he violated a City of Eagle River sign ordinance. Slusarczyk argued the ordinance did not apply because his sign did not meet the definition of an off-premises sign, and that the City’s ordinance conflicted with a preemptive state statute, and that the ordinance, as applied, violated his constitutional rights.

The State of Wisconsin has preempted the field of traffic regulations, and our supreme court has stated that no local authority may enact any traffic regulation unless such regulation is not contrary to or inconsistent with the Wisconsin Motor Vehicle Code. Wisconsin Stat. § 346.55(4) provides, in part: “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.” Thus, the court found statute and ordinance are in conflict because Slusarcyzk’s sign specifically prohibiting Synergy and its customers from parking on his property is allowed under the state statute, but forbidden by the Eagle River ordinance.

While the City insisted that there was no conflict because “Wis. Stat. § 346.55(4) permitted the sort of sign Mark Slusarczyk put up in this matter, and City of Eagle River Ordinance § 106–683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.” The court disagreed, and found that because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. Accordingly, the court reversed and held that the Eagle River ordinance conflicted with a preemptive state statute and was thus unenforcable.

City of Eagle River v Slusarczyk, 2015 WL 4079137 (WI App. 7/7/2015)

Plaintiff, a non-profit organization that operates residential programs for people with disabilities, sought to establish a residence for 24 people who are recovering from alcoholism and substance abuse. Plaintiff’s proposed residence was located in the R2A zone according to the City’s Zoning Ordinance. Under the Zoning Ordinance, “only single and two family residences and houses of worship are permitted in” an R2A zone. Certain multi-unit residences, such as dormitories, nursing homes, and bed and breakfasts, may obtain a special use permit to operate in an R2A district; however, other multi-unit dwellings, including Plaintiff’s planned residence, must obtain a use variance in order to establish a residence in an R2A zone. Though individuals seeking a special use permit must also go through an application process, and need not show “unnecessary hardship” in order to obtain a permit. Plaintiff filed the present action, alleging that the City’s Zoning Ordinance constitutes a facial violation of both the FHA and the ADA.

At the outset, the court noted that an organization may bring suit on behalf of its members by demonstrating that: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Here, standing was found because Plaintiff’s allegation that the Zoning Ordinance required it to comply with application requirements that are more burdensome than those required of multi-member dwellings serving people without disabilities, and that the ordinance has prevented Plaintiff from opening the proposed residence to serve its members, was sufficient to show an injury in fact that is “fairly traceable” to Defendant’s actions. Furthermore, the organization had standing to bring this action on behalf of its members, since “(1) it serves a class of individuals with discrimination claims-individuals recovering from substance abuse; (2) the interests of the class are germane to the organization, which is in the business of developing and operating sober homes; and (3) no individual participation of class members is necessary because the instant litigation involves a facial challenge” to the City’s Zoning Ordinance.

While the defendants alleged that this case was frivolous because it could be brought in an Article 78 proceeding, the relief Plaintiff sought in the Article 78 proceeding was not “substantively identical” to the relief sought in the instant case, nor could Plaintiff have raised the instant claims in an Article 78 proceeding. Plaintiff’s Article 78 Petition sought review of the BZA’s decision to deny Plaintiff a use variance for Plaintiff’s proposed residence, but here the Plaintiff sought a ruling on the constitutionality of the Zoning Ordinance itself. Defendant next argued that Plaintiff failed to make out a prima facie case of disparate treatment because Plaintiff did not alleged facts suggesting that it was denied a use variance permit because of the individuals it serves, and because the BZA had legitimate reasons to deny the permit. The court found however, that the Plaintiff’s allegation that multiple-person dwellings serving people with disabilities were not allowed as of right in residential districts in the City, and that other multiple-person dwellings such as dormitories and nursing homes were subject to a less burdensome process to establish residences in the City than are homes serving people with disabilities, should survive a motion to dismiss because it was a claiming that the Zoning Ordinance itself was facially discriminatory, rather than challenging the BZA’s denial of its permit. The Court therefore found that Plaintiff had alleged facts sufficient to state a claim under the FHA and ADA. 

Rehabilitation Support Services, Inc v City of Albany, 2015 WL 4067066 (NDNY 7/2/2015)

Two boathouses were constructed without building permits on the shoreline and in the waters of Lake Placid in the Town of North Elba, Essex County. As is relevant here, William H. Grimditch Jr. began construction of a three-slip boathouse on his unimproved lakefront property on Lake Placid in September 2010, and his children undertook similar construction of a one-slip boathouse on their nearby vacant lakefront property. In response, plaintiff James E. Morganson, the Code Enforcement Officer for the Village of Lake Placid/Town of North Elba, immediately issued the first of three stop work orders, and Morganson and plaintiff Town of North Elba moved for a preliminary injunction to halt construction by Grimditch and the children. The supreme court initially allowed construction of both boathouses to continue to the extent of permitting the installation of the caissons and decking, but issued a limited preliminary injunction requiring defendants to apply for building permits pursuant to the New York State Uniform Fire Prevention and Building Code Act (hereinafter SBC) and to comply with the provisions of the Village of Lake Placid/Town of North Elba Land Use Code (hereinafter LUC). On appeal, the court reversed the award of summary judgment to defendants, holding that because “Lake Placid is not owned by the State in its sovereign capacity and most of the lake is within the Town’s boundaries, the Town’s zoning authority includes that portion of the lake, making the LUC applicable to structures constructed therein,” including defendants’ boathouses.

On remand the court ordered defendants to “abate their violation of the [SBC and LUC] … by dismantling the two boathouses … to the point where all that remains are the caissons and decking initially authorized” and denied the Town’s request that civil penalties be imposed. Defendants appealed, and plaintiffs cross-appealed from that part of the order that spared the caissons and decking. Because the offending premises were immediately adjacent to the neighbors’ property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury” Here, the neighbors demonstrated that the children’s boathouse violated various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building. The neighbors were therefore found to have standing to maintain a private common-law action to enjoin zoning violations.

Defendants next alleged a vested rights claim, which argued that at the time that construction began, the provisions of the LUC did not apply to the boathouses. According to defendants, due to their expended construction costs they were afforded certain vested rights relative to the boathouses in question. This argument failed, however, because prior to construction defendants did not obtain the required permit from the Town pursuant to the SBC. Nothing in any of the prior judicial or administrative decisions suggested that an SBC permit and/or compliance therewith was not required; moreover, the court noted that “defendants’ boathouses are structures subject to the SBC”. LUC provisions notwithstanding, the defendants undertook and completed construction without obtaining the required SBC permits or securing and/or complying with Town approvals, in violation of stop work orders. Because of this, the court found that the defendants’ vested rights argument failed.

The court found that “it was defendants’ own actions that precipitated their treatment by the Town”—namely, in completing construction without obtaining the required building permits and, following the denial thereof, ignoring an initial stop work request and order, pursuing construction in violation of a conditional permit to erect only the caissons and decking, subsequently ignoring further stop work orders and preventing Town agents from coming onto their properties to inspect. Therefore, the defendants’ actions provided a rational basis for the Town’s disparate treatment of them, and their reliance upon speculation to demonstrate the Town’s malevolent intent is insufficient to overcome the presumption that the Town’s enforcement of its laws was “undertaken in good faith and without [impermissible] discrimination” Accordingly, the court reversed the order denying the plaintiffs’ motion for summary judgement, and ordered the removal of the caissons and decking.

Town of North Elba v Grimditch, 2015 WL 39998898 (NYAD 3 Dept. 7/2/2015)

Aug 4, 2015

1:00 – 2:30 PM ET

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 Housing and Takings: A Look at the U.S. Supreme Court’s Inclusive Communities Project and Horne Decisions on Tuesday, August 4, 2015 from 1:00 to 2:30 p.m. ET. Registration is $20 for PLD members, $40 for nonmembers, and $45 for the webinar and PLD membership.

In June, the U.S. Supreme Court decided two cases which are likely to have significance for planners. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Court upheld the use of disparate impact analysis in Fair Housing Act claims. Among other groups, local governments will continue to have potential disparate impact liability, particularly now that the federal Department of Housing and Urban Development has finalized a rule requiring increased scrutiny of zoning and other local regulatory practices as a condition of local governments’ receipt of funds through HUD grant programs. In Horne v. Department of Agriculture, the Court found that a raisin producer was entitled to compensation for a taking of property where the federal government fined the raisin producer for failing to turn over raisins as required by a price control law. The Court held that the forced turnover of raisins could be considered a physical invasion of property. The Horne decision represents an expansion of takings law, and it could have a ripple effect on other government regulatory programs requiring the turnover of private property as a condition of market participation. The webinar will cover both cases, including a description of each case’s background and holding, the likely consequences for practicing planners.

Speakers include: Brian J. Connolly, Esq., Attorney, Otten Johnson Robinson Neff + Ragonetti, P.C., Denver; David L. Callies, Esq., FAICP, Benjamin A. Kudo Professor of Law, University of Hawaii, William S. Richardson School of Law, Honolulu; Donald L. Elliot, Esq., FAICP, Director, Clarion Associates, LLC, Denver; and Steven G. Polin, Esq., Steven G. Polin Attorney at Law, Washington, D.C.

Register here:

In March 2013, Dale Pahlke applied to the Bismarck–Burleigh County Planning and Development Department to rezone 311 acres of his land in Menoken Township from agricultural use to light industrial use. Pahlke’s application proposed to subdivide his land into five to ten acre lots if his rezoning request was granted. Pahlke’s land is located on the north side of Interstate 94 and on the west side of 145th Street NE, about 1 mile west of the Menoken interchange and just north of an interstate rest area. Except for the interstate corridor, the land is surrounded by property zoned for agricultural use. In 2009, the Dockters purchased land directly north of Pahlke’s land, and they operate a certified organic farm on their land. Thane and Nicole Dockter appealed from a judgment affirming a Burleigh County Board of County Commissioners’ decision to rezone a 311 acre tract of land in Menoken Township from agricultural to industrial use, claiming industrial use of the adjacent land could contaminate their fields and result in loss of certification of their organic farm.

Here, the court found that although Pahlke individually benefited from the zoning change, there was evidence the County Commissioners’ decision benefited Burleigh County as a whole. Moreover, the approval was for land that was proposed to be divided into five to ten lots, which mitigated the claim that the rezoning change involves an individual lot singled out for discrimination, or different treatment. The court therefore concluded the record supported a reasonable basis for the County Commissioners’ decision and did not establish the Commissioners’ decision constituted impermissible spot zoning. The claim that this approval was made arbitrarily and capriciously likewise failed because the County Commissioners found rezoning would be consistent with the comprehensive plan, since the rezoning application promoted quality growth of manufacturing within the county convenient to transportation facilities. The judgement upholding the County Commissioners’’ decision was therefore affirmed.

Dockter v Burleigh County Board of County Commissioners, 2015 WL 4041146 (ND 7/2/2015)

The opinion can be accessed at:

Ware appealed from a judgment affirming the Board’s decision denying her petitions for a special hearing and for zoning variances, both of which arose from her proposal to convert a single family home into a church. The appellees are the People’s Counsel for Baltimore County and 21 nearby residents who appeared before the Board as protestants and participated in the judicial review proceedings. As relevant to this case, a permitted use in a Density Residential zone must comply with section 1B01.1.B, which establishes “[d]welling-type and other supplementary use restrictions based on existing subdivision and development characteristics.” One such restriction pertains to residential transition areas (“RTA”), which are buffer and screening areas. Under this regulation a RTA is a “one-hundred-foot area, including any public road or public right-of-way, extending from a D.R. zoned tract boundary into the site to be developed.”

Ware first contended that the RTA conditions only applied to “dissimilar housing types”, and because she was proposing to change the use of the Property from a residential dwelling to a church, the Property need not comply with any RTA conditions. The court found, however, that If compliance with RTA conditions only would be required when a property owner proposed the development of a “dissimilar housing type,” there would be no need for the four exceptions for church uses, the exception for a child care center, or the exception for transit facility or rail passenger facility. Ware’s next argument, that she was not developing the property, likewise failed because although she did not pave or stripe the parking lot she had built, she poured gravel over the area to establish the lot and planted numerous trees to screen it.

Finally, the court upheld the Board’s finding that Ware’s site plan did not comply with the RTA use requirements because it proposed no buffer and no set back between the parking lot and the eastern boundary of the Property. The fact that the property was not compatible with the character and general welfare of the neighborhood provided even more of a substantial basis for the Board’s decision. Accordingly, the court affirmed the holding that the Board did not err by concluding that the RTA conditions applied to the Property.

Ware v People’s Counsel for Baltimore County, 2015 WL 4067997 (MD 7/2/2015)

The opinion can be accessed at:

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