Editor’s Note: The following is reposted from the Court of Appeals summary:

“The courts ordinarily do not review the motives of the Legislature when reviewing a legislative enactment unless the evidence establishes that the government body or actor was acting outside its legal boundaries. Actions of a local government body that are legislative in nature, as opposed to quasi-judicial or adjudicative, are subject to a more limited review. The planned unit development approval process in Baltimore County requires both legislative and adjudicative processes, which involve separate standards for judicial review. The Baltimore County resolution at issue was a legislative act and thus not subject to ordinary judicial review beyond the limited inquiry of whether the County Council was acting within its legal authority in adopting the resolution. As such, the Board of Appeals was correct in concluding that it and the Administrative Law Judge lacked the authority to review an alleged appearance of impropriety in the initiation process underlying the resolution.”

Kenwood Gadens Condominiums, Inc. v. Whalen Properties, 2016 WL 4411306 (MD 8/19/2016)

Plaintiff Lawrence Miller challenged under both state and federal law the manner in which the Town of Wenham, Massachusetts chose not to prohibit a company named 110, Inc. from operating a substance abuse treatment facility on land that abutted Miller’s residence. After Miller filed this lawsuit in Massachusetts Superior Court, the defendants removed it to federal court, and then moved to dismiss Miller’s complaint. The district court determined that the complaint failed to state a claim under 42 U.S.C. § 1983 for the deprivation of property without due process, dismissed one state law claim as moot, and remanded a remaining state law claim to state court.

Specifically, Miller alleged that in making three decisions under color of state law, the Town violated his rights under the Due Process Clause of the Fourteenth Amendment. Those decisions were: the decision by several Town officials that 110, Inc.’s proposed use of the abutting property was an educational use under the Dover Amendment, and therefore lawful under the zoning ordinance; the decision by the Building Inspector to accede to 110, Inc.’s claim that federal law required the Town to accommodate 110, Inc.’s desire to operate as intended; and the decision by the Town to enter into the Settlement Agreement with 110, Inc., pursuant to which the Town agreed to recognize the lawfulness of 110, Inc.’s use of the property as a reasonable accommodation under federal law, and to make no effort to obstruct or impede 110, Inc.’s operation of the facility on the property.

The court found that Miller’s briefs on appeal did not clearly identify precisely the property interest of which he claimed to have been deprived. Even construing Miller’s claim to suggest the Town deprived him of a constitutionally protected interest without prior notice or an opportunity to be heard, the court still found no due process violation, as Town never deprived Miller of any right to obtain enforcement of the zoning laws against 110, Inc. Here, Miller retained the ability to seek such enforcement on his own under the above-described remedial scheme provided by Massachusetts law, and was deprived only of the ability to enlist the support of Town administrative officials in this effort – a deprivation which the court found not to be the type of action that requires prior notice. While Miller may have lost the advantage of having the Building Inspector on his side, which may have shifted a greater burden of persuasion to him, the court found that he had no property interest in having such an advantage.

The second claim Miller alleged on appeal was his declaratory judgment count, which sought to invalidate the September 26, 2014 Settlement Agreement between the Town and 110, Inc. Finding that this claim had been rendered moot by the June 2, 2015 decision of the ZBA, the district court dismissed it without any further discussion. Because this case was removed by the Town solely on the basis of Miller’s federal procedural due process claim under § 1983, and the court affirmed the district court’s dismissal of that claim, the court was likewise left with a complaint alleging two state-law claims. Furthermore, because the district court correctly decided to remand Miller’s zoning challenge, the court found no reason for having the district court decide the mootness issue under state law. Accordingly, the court affirmed the district court’s dismissal of the procedural due process claim.

Miller v Town of Wenham, 2016 WL 4206375 (1st Cir. CA 8/10/2016)

Editor’s Note: This posting originally appears on Julie Tappendorf’s Municipal Minute blog and reposted with permission. See: http://municipalminute.ancelglink.com/2016/08/the-governor-recently-signed.html

The Governor recently signed legislation (PA 99-714) to further amend the Open Meetings Act regarding the time period that an individual has to file a lawsuit to enforce an alleged OMA violation. Currently, a lawsuit must be filed within 60 days of the date of the meeting being challenged or within 60 days of discovery of the violation. The new law would allow an individual to file a lawsuit within 60 days of issuance of an Attorney General opinion where that person had filed a request for review with the Attorney General (PAC office). The new provision is contained in section 3 of OMA (new language is underlined):

(5 ILCS 120/3)  (from Ch. 102, par. 43)
Sec. 3. (a) Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 60 days of the meeting alleged to be in violation of this Act or, if facts concerning the meeting are not discovered within the 60-day period, within 60 days of the discovery of a violation by the State’s Attorney or, if the person timely files a request for review under Section 3.5, within 60 days of the decision by the Attorney General to resolve a request for review by a means other than the issuance of a binding opinion under subsection (e) of Section 3.5.

Editor’s Note: This blog is reposted with minor edits from the Northwest Land Law Forum published by Garvey Schubert Barer and authored by Carrie Richter: http://www.northwestlandlawforum.com/2016/08/demolition-of-3000-oregon-landmarks-averted-after-state-supreme-courts-ruling-in-lake-oswego-preservation-society-v-city-of-lake-oswego/#more-5044

The City of Lake Oswego added the Carman House to its inventory of historic landmarks in 1990, pursuant to Statewide Planning Goal 5.  The oldest extant residential structure within the City, the Carman House is considered a rare and valuable example of a territorial Oregon residence.  The owners at the time, Mr. Wilmot and Mr. Gregg filed an objection to the designation.  However, since the city could designate a property as historic without a property owner’s consent, the property was designated over the owners’ objections.

The respondent in this case, the Mary Caldwell Wilmot Trust was the successor in interest to Mr. Wilmot. In 2013, the Trust filed an application to remove the Carman House’s historic designation, in order to facilitate proposed redevelopment of the property.  On January 7, 2014, the city council issued a final written decision granting the request to remove the historic designation concluding, in part, that ‘property owner’ as used in ORS 197.772(3) is not limited to the owner at the time the property was designated.

This case was appealed by the Lake Oswego Preservation Society (LOPS), a local preservation group, to the Land Use Board of Appeals.  LUBA concluded that the term “a property owner” as used in ORS 197.772(3) was not intended to include persons who become owners of a property after it is designated as historic and reversed the city’s removal decision.  The Trust sought judicial review of this order from the Oregon Court of Appeals.  The Court of Appeals disagreed with LUBA’s interpretation of the statute and reversed.  The decision turned on use of the term “a” as referring to an “unidentified, undetermined or unspecified” object coupled with no finding that the legislature intended to exclude successors-in-interest from utilizing the removal provision.  The result was to give the provision an extremely broad reading to allow de-designation by any owner of property on which a local historic designation had been imposed.

The Supreme Court’s decision turned entirely on legislative intent.  This is done by examining “the statutory text in context, along with its legislative history, applying as needed relevant rules and canons of construction.”  Considering the text alone, the Supreme Court agreed with the Trust that the term “a” can sometimes be synonymous with the term “any” but on the other hand, the term “a” is often used quantitatively to suggest a limitation in number i.e. those owners who owned the property at the time of designation.  In other words, with the absence of any express narrowing language, the legislature could have intended an expansive definition of “owner” or the lack of specificity could suggest that the legislature did not perceive the need to address it.

Finding either interpretation plausible, the court went on to examine the regulatory context provided by Goal 5.  Goal 5 makes no mention of owner consent and although the program ordinarily provided an opportunity for public input in the decision-making, the decision of whether to designate a historic resource was up to the local government.  The legislative history suggests a concern over the involuntary nature of the designation process that led to the adoption of ORS 197.772.  The amici argued that most of Oregon’s historic designation decisions occurred before the adoption of ORS 197.772. Allowing the removal right to run to subsequent owners, when they had notice of the designation, would compromise local governments’ abilities to achieve Goal 5.  The Supreme Court agreed and concluded that “nothing about the context of ORS 197.772(3) suggests that the legislature intended to eliminate local governments’ use of historic designations to protect and preserve historic properties long-term and therefore meet their obligations under Goal 5.” The court went on to explain that subsequent owners have notice of the designation and obtained the property at a price that takes the designation into account.  Therefore, the legislature did not intend to “dismantle” the protections for historic properties, as the Court of Appeals had concluded.

Finally, the court considered the legislative history and found that although there was nothing definitive, the testimony weighed in favor of interpreting the phrase “a property owner” as referencing only the owners at the time of designation.  The court traced the history of adoption noting that it was intended to aid property owners who had been “coerced into the historic property designation” and were awaiting a statutory remedy.  When asked whether the provision could apply to a subsequent purchaser, the Yamhill County bill drafter responded that they “frankly hadn’t thought about that.”  Since there was no indication that the legislature knew that the provision would be interpreted broadly but intended to narrow it.  Therefore, the legislature “sought to create a system where, to the extent possible, historic designations are not placed on properties unless the owner at that point in time agrees.”

Based on the foregoing, the Oregon Supreme Court determined that the right to remove a historic designation under ORS 197.772(3) applies only to those persons who owned their properties at the time that the designation was imposed and not to those who acquired them later, with the designation already in place.  The Court of Appeals decision was reversed and LUBA’s decision was affirmed.

Lake Oswego Preservation Society v City of Oswego, 2016 WL 4141012 (OR 8/4/2016)

Posted by: Patricia Salkin | August 7, 2016

D.C. Circuit Overturns Approval of Wind Farm Due to Bat Concerns

Editor’s note: This post is shared with minor edits from the Perkins Coie website here: https://www.perkinscoie.com/en/news-insights/d-c-circuit-overturns-fws-approval-of-wind-farm-due-to-bat.html#

The U.S. Court of Appeals for District of Columbia Circuit held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all reasonable alternatives for reducing deaths to the endangered Indiana bat. However, the FWS prevailed on a separate ESA claim, in which the court held that the FWS’s interpretation of the ESA was entitled to deference.

The endangered Indiana bat is a mouse-eared bat with habitats in the Eastern and Midwestern United States, including Ohio.  Although wind farms pose a potential threat to bats generally—either through collisions with the turbines or decompression sickness caused by pressure changes around the turbines—there had been only five known Indiana bat deaths associated with wind farms as of April 2013.

Buckeye Wind LLC sought to build and operate a commercial wind energy facility in Champaign County, Ohio.  The proposed project would include up to 100 wind turbines, for a total generating capacity of approximately 250 MW.  Buckeye began consulting with the FWS, which worked with Buckeye to draft a Habitat Conservation Plan to address the impacts of Buckeye’s proposed project.

The FWS issued Buckeye an incidental take permit subject to the terms of the HCP, which proposed numerous steps to reduce impacts on the Indiana bat and its habitat.  Among other measures, the HCP included operational restrictions in which Buckeye committed to both “turbine feathering” and increased “cut-in speeds.”  Turbine feathering is a reduction in the blade angle to the wind to slow or stop the turbine from spinning until a particular cut-in speed is reached.  A cut-in speed is the wind speed at which the rotors begin rotating and producing power.  The HCP varied the cut-in speeds up to 6.0 meters per second (m/s) based on the location of the turbine, the season and the time of day—resulting in a 2.5% reduction in clean energy production and $980,000 in lost annual revenues (totaling $24.5 million in lost revenues over the permit’s term).  The HCP estimated that without any of the operational restrictions, approximately 6.9 to 25.4 bats would be killed per year.  With the operational restrictions, an estimated 5.2 bats would be killed per year, with no more than 26 bats in a 5-year period.  The FWS determined that this level of take would not have significant consequences for the Indiana bat.

Union Neighbors United Inc. filed a complaint seeking declaratory and injunctive relief, alleging that the issuance of the incidental take permit was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law under NEPA and the Endangered Species Act.

Union Neighbors claimed the FWS did not satisfy NEPA’s requirement to consider a reasonable range of alternatives.  Under NEPA, the discussion of alternatives must rigorously explore and objectively evaluate all reasonable alternatives.  Union Neighbors claimed the FWS failed to include among the alternatives an economically viable plan that would have taken fewer Indiana bats than Buckeye’s compliance with the HCP.

During scoping, the FWS considered six alternatives to Buckeye’s proposal, and three of these were analyzed in depth:  (1) a no action alternatives; (2) a maximally restricted operations alternative (Max Alternative); and (3) a minimally restricted operations alternative (Minimal Alternative).

Under the no action alternative, the FWS would not issue the permit, Buckeye would not construct the project and no bats would be taken.

The Max Alternative would shut down all turbines at night when the Indiana bats are active, thus eliminating the take of any bats.  However, this would result in a 22.7% reduction in clean energy production and $8.65 million in lost annual revenues (equating to $216.5 million in lost revenues over the permit’s term).

The Minimal Alternative would feather all turbines to a cut-in speed of 5.0 m/s during the fall migration period during hours when the bats were most active, resulting in a higher estimated take of 12 bats per year.

In its comments on the Final EIS, Union Neighbors asked the FWS to consider a cut-in speed of 6.5 m/s as another alternative to Buckeye’s proposal.  The FWS responded that, because of the “infinite combinations” of cut-in speeds higher than the proposed action that could reduce bat mortality further, the Max Alternative was a reasonable alternative to consider in lieu of Union Neighbors’ proposed speed.

The D.C. Circuit disagreed: “Viewing the range of alternatives through the lens of its stated goals, the [FWS] failed to consider a reasonable range of alternatives because it did not consider any reasonable alternative that would be economically feasible while taking fewer bats than Buckeye’s proposal.”

As the court explained, the only alternative the FWS considered that would take fewer bats than Buckeye’s proposal was the Max Alternative.  All parties conceded, however, that the Max Alternative was not an economically feasible alternative.  The court pointed out that the FWS knew the Max Alternative was not economically viable, and it was aware that other, more viable measures would take fewer bats than Buckeye’s proposal—especially since Union Neighbors had repeatedly suggested using a cut-in speed of higher than 6.0 m/s.  Nevertheless, the FWS failed to consider any higher cut-in speed in either the Draft or Final EIS.  The court seemed particularly swayed by the fact that the FWS’s own responses to Union Neighbors’ comments reflected the potential for a higher cut-in speed to more effectively align with its stated goals.

The FWS argued that it did not need to consider another alternative because there would be an “infinite array of potential protective measures that could be varied depending on habitat, feathering, cut-in speed and season, among many other factors.”  The court rejected this argument, explaining that the FWS “would not need to examine an ‘infinite array,’ nor even examine Union Neighbors’ proposed 6.5 m/s speed.  An analysis of a realistic mid-range alternative with a cut-in speed that would take materially fewer bats than Buckeye’s proposal while allowing the project to go forward would suffice.”

The court therefore determined that the FWS had violated NEPA by failing to consider a reasonable range of alternatives, because it did not consider any reasonable alternative that would have taken fewer Indiana bats than Buckeye’s plan.  The court reversed the district court on Union Neighbors’ NEPA claims.

Union Neighbors also claimed that the FWS had failed to comply with Section 10(a)(2)(B) of the ESA, which requires a finding that the applicant for an incidental take permit “will, to the maximum extent practically, minimize and mitigate the impacts of such taking.” 16 U.S.C. § 1539(a)(2)(B)(ii).

The FWS made an official finding that Buckeye minimized and mitigated the impact on the Indiana bat to the maximum extent practicable.  After considering the text, legislative history and prior interpretations of the ESA, the court was persuaded that the “minimize and mitigate” language in section 10(a)(2)(B)(ii) refers to populations of the species as a whole, rather than the discrete number of individual members of the species that are taken.  Looking at the interplay between the phrases “to the maximum extent practicable” and “minimize and mitigate such impacts,” the court also determined that if the minimization and mitigation measures fully offset the take, the ESA requirements have been met, and there is no need to do more to satisfy the ESA’s “maximum extent practicable” test.

The court therefore held that the FWS’s interpretations of the ESA were persuasive and entitled to deference.  In light of its interpretation, the FWS complied with its ESA obligations.

Union Neighbors United Inc. v. Jewell, No. 15-5147 (D.C. Cir. Aug. 5, 2016).

Plaintiffs, R Bend Estates II, LLC (“R Bend”), Pierre Gaudin, and John Treme, filed a federal civil action against St. John the Baptist Parish and the St. John the Baptist Parish Council. According to the Plaintiffs, the Defendants, on more than one occasion, arbitrarily and capriciously refused to issue to them appropriate zoning permits, which prevented Plaintiffs from developing property they own or control in St. John the Baptist Parish. The Plaintiffs alleged violations of: the Takings Clause of the Fifth Amendment to the United States Constitution and Article 1, Section 4, of the Louisiana Constitution; and the due process and equal protection guarantees in both the United States Constitution and the Louisiana Constitution.

As to the Takings claim, Plaintiffs conceded their property had not been taken but argued they were denied special-use permits such that they are unable to develop their property. Plaintiffs also conceded they “have not availed themselves [of] state court proceedings for compensation in an inverse condemnation action.” As a result, Plaintiffs’ claims under the Takings Clause of the Fifth Amendment to the United States Constitution and Article 1, Section 4, of the Louisiana Constitution for failing to issue special-use permits, and thereby denying Plaintiffs the ability to use and develop their property, were found not ripe for consideration in federal court and were dismissed without prejudice.

The court next noted that that Plaintiffs’ procedural due process claims alleged deprivations “ancillary to” or “arising from” their takings claims; thus, the court could not determine whether the plaintiff suffered any injury until the takings claims were adjudicated. Moreover, the Plaintiffs failed to pursue an inverse condemnation action in state court. As such, these procedural due process claims were also found unripe.

Plaintiffs lastly alleged in their Complaint that “[t]he zoning ordinances and regulations in effect are being interpreted and enforced against plaintiffs in a manner that is arbitrary and capricious and in a manner differently than interpreted and enforced against other citizens in the same or similar circumstances within the Parish.” Here, because Plaintiffs’ allegations appeared to concern rights and privileges not protected by the Takings Clause, the court found Plaintiffs’ substantive due process and equal protection claims were not subsumed by their unripe takings claims. The court did note, however, that Plaintiffs’ substantive due process and equal protection claims may be vulnerable to dismissal by summary judgment, as they were largely unsupported by factual assertions.

R Bend Estates II, LLC v St. John the Baptist Parish, 2016 WL 4087490 (E.D. LA 8/2/2016)

In July 2013, the Romaninis applied for and were issued a building permit to install a pool in the rear yard of their property in Highland Heights, Ohio. After construction was under way, the City’s building commissioner advised the Romaninis that a separate permit was required for the deck. Mr. Romanini then submitted a separate permit application for the pool deck, which was then issued by the City. Following issuance of the permit, a letter was written to Mr. Romanini by the building commissioner, which referenced a conversation informing Mr. Romanini that the deck was in violation of Highland Heights Codified Ordinance (“HHCO”) 1123.18(c) and stated the letter was “to confirm that you have agreed to remove the deck.” Despite this, the City never specifically mandated that the deck be torn down, and after the letter was issued, the Romaninis were advised that construction of the deck could proceed. The City never revoked or rescinded the permit, and construction of the pool deck was completed.

Appellants, who were residents in the neighboring area, appealed the issuance of the building permit for the pool deck. Appellants maintained that the deck was not in compliance with HHCO 1123.18(c), which imposes a minimum rear setback of 40 feet for certain ground features, including a “platform” or a “deck.” The Highland Heights Planning and Zoning Commission denied appellants’ appeal and upheld the issuance of the permit. The BZA then denied the appeal and reaffirmed the issuance of the permit. Appellants then filed an appeal in the Cuyahoga County Court of Common Pleas, which again affirmed the issuance of the permit.

The court found that when read as a whole and construed together, the swimming pool ordinances allowed for a pool deck as part of a swimming pool subject to the ten-foot setback of HHCO 1319 .05; because the deck would not exist without the pool, the court found that it would be illogical to read the ordinances as allowing a pool to be ten feet from the rear property line, while requiring an incidental deck providing safe access to a pool to be a minimum of 40 feet from the rear property line. Thus, the court held that the lower court did not err in its application or interpretation of the law or that its decision is unsupported by the preponderance of substantial, reliable, and probative evidence as a matter of law.

Mackat v Romani, 2016 WL 4141797 (OH App. 8/4/2016)

Editor’s Note: This posting appeared originally on the Inverse Condemnation Blog as is reposted with permission from Robert Thomas, Esq. See: http://www.inversecondemnation.com

To state a claim for inverse condemnation in Nevada, the property owner must allege that the government was “substantially involved” in activities that caused the taking of the property.

The Nevada Supreme Court addressed what constitutes substantial involvement. Does it require actual physical “involvement” in the actions which resulted in flooding, or is the government doing governmental things like approving applications enough? In the end, the court set out a test somewhere in between those two poles.

This is a flood case where the property owners alleged that the County approved plat maps and managed the drainage system which ultimately resulted in their property being inundated. As part of that process, the County accepted dedications, and worked with the Nevada DOT to direct where water coming down a mountain would flow. The County asserted the owners didn’t have standing because the majority of these actions by the government occurred before the plaintiffs purchased the property. The trial court agreed with the County, and entered summary judgment in its favor. Next stop, Nevada Supreme Court.

The court reversed, and applying a different analysis than below, concluded that the County’s approval of subdivision plats and acceptance of dedications — even if those actions occurred prior to the plaintiffs’ ownership — qualified as “substantial” government involvement. The court noted that “Nevada caselaw has not clearly and comprehensively set forth the elements of inverse condemnation, but we do so now.” Slip op. at 5. Here are your elements:

As the counterpart of eminent domain, inverse condemnation requires a party to demonstrate the following: (1) a taking (2) of real or personal interest in private property (3) for public use (4) without just compensation being paid (5) that is proximately caused by a governmental entity (6) that has not instituted formal proceedings.

Slip op, at 5. When a private party acts in concert with a government entity, “government responsibility may be established by demonstrating that the government entity was substantially involved ‘in the development of private lands for public use which unreasonably injure[d] the property of others.'” Slip op. at 6 (quoting Cty. of Clark v. Powers, 611 P.2d 1072, 1077 (Nev. 1980)).

Applying that test here, the court concluded that physical involvement isn’t a requirement. Yes, in Powers, the court held that because the government was actually involved in construction, that counted as “substantial involvement.” But the court clarified that isn’t the only situation where liability may attach. Slip op. at 7 (“We have not limited the range of actions that constitute substantial involvement to physical engagement in private activities.”). And while “mere planning” alone isn’t enough, further involvement may be. Here, although there was no involvement by the County in construction, it did more than mere planning.”

The Fritzes alleged that Washoe County did more than approve subdivision maps. The Fritzes provided evidence that, among other activities, Washoe County formally accepted dedications of the streets and developments and entered into an agreement with NDOT to direct water from the developments north into Whites Creek, rather than to allow the water to follow its natural path down Mount Rose Highway. Therefore, unlike the county in Ullery, Washoe County has taken actions beyond merely approving the subdivision maps, and the Fritzes’ inverse condemnation claim here is actionable.

Summary judgment reversed, case remanded for more.

Fritz v. Washoe County, 2016 WL 4140940 (NV 8/4/2016)

 

The Plaintiffs, Evergreen Presbyterian Ministries, Inc., and Barron Builders of Pineville, Inc., asserted discrimination and retaliation claims against the Defendants the Town of Haughton and its mayor, Carlton Anderson, under the Fair Housing Amendments Act of 1988 (“FHAA”) and the Americans with Disabilities Act of 1990 (“ADA”) for their roles in halting the construction of a home for disabled persons in Haughton, Louisiana. Evergreen is a nonprofit organization that provides home-based care for disabled persons across the Southeast. Evergreen decided to build a home for this purpose in Haughton, Louisiana, and hired Barron Builders as the general contractor to construct the home. The Defendants’ motion to dismiss claims the Plaintiffs’ discrimination claim as unripe because the Town has not yet made a final decision on whether it will allow the Plaintiffs to build the home.

The court noted that in the Fifth Circuit, a reasonable accommodation claim is not subject to the final-decision requirement and is instead ripe “when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.” Although the Fifth Circuit has not defined a first denial for the purposes of this rule, its courts have generally held that a reasonable accommodation claim is not ripe until the plaintiff requests an accommodation through available variance or special use procedures and the defendant denies that request for a variance. Here, the failure of the Plaintiffs to seek an accommodation by applying to the Board of Appeals for a variance meant that their reasonable accommodation claims under the FHAA and ADA were not ripe. As to Plaintiff’s argument that an application would be futile, the conduct of the neighbors and Anderson indicated that they would likely oppose a variance if the Plaintiffs sought one (whether for discriminatory reasons or not), there was no evidence in the record that either the neighbors or Anderson were members of the body authorized to grant a variance, i.e., the Board of Appeals.

The essence of the Plaintiffs’ intentional discrimination claim is that the Defendants issued the stop-work order and insisted that the Plaintiffs apply for a variance not because the Plaintiffs’ proposed use of the home violates the ordinance, but because disabled persons would reside there. The court found that assuming this conduct was actionable under an intentional discrimination theory, it would remain so even if the Plaintiffs were to later receive a variance because it is the very act of requiring a variance that would be discriminatory. The court therefore held that the Plaintiffs stated a ripe claim of intentional discrimination under the FHAA and ADA.

Evergreen Presbyterian Ministries v Town of Babylon, 2016 WL 4133587 (WDLA 8/3/2016)

In April 2015, Signs for Jesus and Hillside Baptist Church applied for a permit to install an electronic sign on Pembroke Street in Pembroke, New Hampshire. When their application was denied, they filed this action against the Town of Pembroke, Pembroke’s Zoning Board of Adjustment, and Pembroke’s Code Enforcement Officer. Plaintiffs alleged that Pembroke’s zoning ordinance, and defendants’ actions, violated the United States and New Hampshire constitutions, as well as federal and state statutes. Defendants moved for leave to file a third-party complaint against the State of New Hampshire and School Administrative Unit 53 (“SAU 53”), which operated Pembroke’s local public high school. In the alternative, defendants would like to add the State and SAU 53 as required parties under Federal Rule of Civil Procedure 19(a)(1).

Both counts of Defendants’ argument rest on the same legal theory—that “the Town has no control over the allowance of … signs for governmental actors [like the SAU 53 and the New Hampshire Department of Transportation], but is instead required to allow them by RSA 674:54.” Therefore, according to defendants, “the State and SAU 53 are responsible for any discrimination among speakers, not the Town.” However, New Hampshire law allows entities, like the State and SAU 53, to install signs that would otherwise violate local zoning regulations. Defendants failed to allege any facts to show that the State and SAU 53 somehow compelled defendants’ conduct. Instead, the defendants independently chose to deny the Church’s application.

The court likewise rejected the defendants’ request for joinder because even assuming that the Church or defendants would question section 674:54’s constitutionality later in this suit, other mechanisms adequately protected the State and SAU 53. The court determined that if any “pleading, written motion, or other paper” draws into question the statute’s constitutionality, then Federal Rule of Civil Procedure 5.1 requires notice to the New Hampshire attorney general, while 28 U.S.C. § 2403 provides an opportunity for the attorney general to intervene. Accordingly, the court found that, if necessary, the State would have its chance to defend section 674:54. The defendants’ motion for leave to file a third-party complaint was therefore denied.

Signs for Jesus v Town of Pembroke, 2016 WL 4083723 (D. NH 8/1/2016)

 

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