Posted by: Patricia Salkin | November 13, 2017

Local Food Movement

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

Posted by: Patricia Salkin | October 24, 2017

Environmental Justice Bill Introduced in US Senate

NJ Senator Cory Booker has introduced legislation to address EJ.

According to the Senator’s website the bill:

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

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

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

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

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

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

For more information see:

In this case, Christopher and Clare Phillips Tayback challenged the Teton County Board of County Commissioners’ decision granting Four Shadows, LLC a Basic Use Permit (BUP) to use its property in Teton Village for temporary construction storage/staging. Four Shadows’ application stated that the need for construction storage/staging areas would continue until the planned construction of Teton Village was complete, which it estimated would take about twenty years. The district court ruled that the Taybacks had standing, but affirmed the Board’s decision. On appeal, the Taybacks argued the Board erred by granting the permit because Four Shadows’ use was not temporary and the Board did not consider alternative sites.

At the outset, the court noted that the Taybacks’ allegation that the dust and noise emanating from the staging site six days per week, for twelve hours per day, interfered with their ability to enjoy their property was sufficient to confer them standing. Having established standing, the court next addressed the Taybacks’ claim that the Board’s decision imposed “two decades or more of this continuing nuisance”. Here, the court determined that the Board granted Four Shadows a two-year permit to use the Granite Ridge site for construction storage/staging. When the permit expired, Four Shadows’ right to use the site would no longer be established. The court therefore found the fact that Four Shadows could potentially apply for a new permit when the current one expired was irrelevant to whether the Board properly granted this BUP for temporary use.

Lastly, the Taybacks contended the Board acted arbitrarily and capriciously by failing to consider alternative sites for Four Shadows’ construction storage/staging operation. The court rejected this contention as the Taybacks did not point to any provision in the LDRs or Master Plan that required the Board to consider alternative sites for construction storage/staging. Without any authority requiring the Board to consider alternative sites, the court held that the Board did not act contrary to law or arbitrarily and capriciously by failing to do so.

Tayback v Teton County Board of County Commissioners, 2017 WL 4296349 (WY 9/28/2017)

Posted by: Patricia Salkin | September 27, 2017

NY Appellate Court Upholds Imposition of Conditions on Parking Variance

Petitioner Bonefish Grill, LLC sought to demolish the existing structure on its property and build a 5,400 square foot restaurant. The Village’s Zoning Code required the petitioner to have 54 off-street parking spaces. Since the property did not have any off-street parking spaces, petitioner proposed to merge the subject property’s lot with the adjoining property it also owned. This merger would allow it to utilize an exception to the Zoning Code’s off-street parking requirement for “interior restaurants that abut municipal parking fields,” as the adjoining property was adjacent to a municipal parking lot. When the petitioner’s restaurant was substantially completed, the Building Department discovered that the proposed merger between the subject property and the adjoining property had never taken place. Because of this, before issuing a certificate of occupancy, the Building Department directed the petitioner to apply for a parking variance. The petitioner applied, relying on a license agreement which allowed the petitioner access to the adjoining property’s 40 exclusive parking spaces between 4:00 p.m. and 12:30a.m. on Mondays through Fridays. The Village’s Zoning Board of Appeals (ZBA) granted the parking variance but imposed the conditions that the restaurant’s operating hours be restricted to the times set forth in the lease agreement, and that valet parking be mandatory. The petitioner commenced a CPLR article 78 proceeding to annul these conditions, and the Supreme Court granted petitioner’s request.

On appeal, the court found the ZBA’s conditions were proper because they “related directly to the use of the land and were intended to protect the neighboring commercial properties from the potential adverse effects of the petitioner’s operation, such as the anticipated increase in traffic congestion and parking problems.” The ZBA’s rationale was supported by empirical and testimonial evidence, as petitioner’s own expert stated that there was a high demand for parking in the area of the subject restaurant. Accordingly, the petition to annul the conditions restricting hours of operation and requiring valet parking was denied.

Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 WL 4275872 (NYAD 2 Dept. 9/27/2017)

Immanuel Baptist Church was notified by the Assistant Commissioner for the City’s Department of Planning and Development, Patrick Murphey, that certain parking requirements were required to be met prior to permitting the Church’s operation at the property. The parking requirements for the property were governed by 17-10-0207 of the Chicago Zoning Ordinance, which set forth requirements for 23 different “Parking Groups.” Pursuant to this Ordinance, the City demanded that the Church have one off-street parking spot for every eight seats. However, also under the Ordinance, other nonreligious assembly uses had different parking requirements. Specifically, Parking Group F for cultural exhibits and libraries, required no parking for facilities up to 4,000 square feet, and only one parking space per each additional 1,000 square feet over 4,000. The Church’s attempts to negotiate other parking arrangements with its neighbors were unsuccessful, and it had therefore been unable to purchase and operate the property as a church.
The Church contended that the City’s parking regulations violated the “equal-terms” provision of RLUIPA. The court found that the burden was on the Church to present evidence sufficient to support a reasonable inference that at least the principal uses of “churches” were comparable to at least the principal uses of “libraries” or “theaters” as they related to the need for off-street parking. However, regardless of whether the parking needs of churches and theaters were comparable, the court found that the Church could not show less equal treatment than theaters because theaters were not permitted in that area. As to libraries, the City claimed that the Church failed to present any facts demonstrating that a library of 4,000 square feet “creates regular assemblages of people, akin to church congregations.” Since the Church failed to meet this burden, the court denied the Church’s motion for summary judgment on its facial RLUIPA claim, and granted the City’s motion for summary judgment on that claim. The Court did, however, grant leave to the Church to file an amended complaint asserting an as-applied RLUIPA claim.
The Church next argued that the parking ordinance violates its equal protection rights under the 14th Amendment, both facially and as-applied. The court first noted that because the City’s Ordinance did not discriminate among religions and did not severely interfere with or regulate the ability of the Church’s members to adhere to the central tenets of their religious beliefs, rational basis review applied rather than strict scrutiny review.  The City contended, it is rational to distinguish among the land uses when determining parking requirements, since churches, theaters, and libraries draw different sized crowds, at different times in the day, and in different areas of the city. The court agreed, finding the Church failed to present any evidence rebutting this claim, and therefore granted the City’s motion for summary judgment on the equal protection claim.
Immanuel Baptist Church v City of Chicago, 2017 WL 4224617 (ND IL 9/22/2017)

Plaintiffs purchased Thorpe Farm in 2007, which was zoned CM–Conservation Management. In 2000, the previous owners entered into conservation easements that restricted Thorpe Farm to agricultural uses. Tony Gardner, the operator of the Festival of Fears, submitted an application to operate a haunted house inside a pole barn on Thorpe Farm; however, the permit was denied because the barn was less than 150 feet from Stoneybrook Road, which would require a zoning variance as set forth in an October 2007 Amendment to the Joint Municipal Zoning Ordinance (“JMZO”). Neither Gardner nor the Thorpes applied for a variance, and the Fire Marshal also advised Gardner that a fire suppression system would be required. Instead of applying for a variance, Gardner applied for a zoning permit for a hayride and corn maze on Thorpe Farm. When this permit was denied, plaintiffs Dale and Renee Thorpe filed suit alleging they were discriminated against on the basis of ethnicity in violation of their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and suffered tortious interference with contractual relations.

As to the Due Process claim, the court found that even if it were to accept Plaintiffs’ arguments that Defendants acted unfairly toward them in the enforcement of zoning and other land-use regulations, Plaintiffs failed to produce any evidence from which a reasonable jury could conclude that it acted with corrupt motives or racial bias. Furthermore, there was no evidence that Dale Thorpe’s Native American heritage motivated the actions of Defendant Kuhns or anyone associated with the Township. Without a basis for concluding that Defendants acted with discriminatory intent, the court held that Plaintiffs failed to show Defendants’ actions shocked the conscience.

Plaintiffs next argued that although the other CM–zoned farms also had periodic zoning disputes with Defendants, the owners of these farms were similarly situated and had been treated more favorably. Distinguishing Plaintiffs’ property from these comparators however, was the fact that the owners of the other farms successfully sought variances or otherwise appealed actions taken against them in some circumstances, while the Thorpes did not. As such, Plaintiffs’ equal protection claim failed.
Having granted summary judgment with regard to the federal claims, the Court declined to exercise supplemental jurisdiction over the remaining state-law claim of tortious interference, and dismissed it without prejudice.

Thorpe v Upper Makefield Township, 2017 WL 42609049 (ED PA 9/25/2017)

Editor’s note: This posting originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.  See:


The Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.


Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.


Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes. 


The sign-poster, Gregory Luce, along with one of his fellow sign-posters, filed a lawsuit, alleging that the prohibition on signs, flags, and banners violated the First Amendment.  He also filed a claim under 42 U.S.C. § 1983, alleging the police chief of acting under the color of state law in committing First Amendment violations.  The police chief subsequently resigned.


The Seventh Circuit found that the police chief’s acts did not constitute state action, and thus he was not liable under 42 U.S.C. § 1983 for First Amendment violations.  The court went on to find that the regulation, which was content neutral, was not required to be supported by empirical evidence relating to traffic safety as the plaintiffs contended.  The Seventh Circuit observed that the Supreme Court never required speech regulations to be supported with empirical evidence, and that, in many cases, speech regulations have been upheld where supported by non-empirical evidence.  The court stated:

“It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time.”


While the court upheld the district court’s grant of summary judgment to the town with respect to overhead signs, the Seventh Circuit noted that the town had not offered any evidence to support the 100-foot buffer from the interstate highway.  The appeals court thus remanded to the district court for additional findings as to whether the 100-foot buffer was supported by a significant governmental interest and narrow tailoring.


Luce v. Town of Campbell, 2017 WL 4216238 (7th Cir. Sept. 22, 2017).


Members of Newton’s City Council proposed discussing the possibility of regulating drones for the principal purpose of protecting the privacy interests of Newton’s residents. One resident, Michael S. Singer, challenged portions of the Ordinance that required that all owners of pilotless aircraft (referred to as “drones” or “UAS”) register their pilotless aircraft with Newton, and prohibited the operation of pilotless aircraft out of the operator’s line of sight or in certain areas without permit or express permission. Singer contended that the Ordinance was preempted by federal law because it attempted to regulate an almost exclusively federal area of law, in a way that conflicted with Congress’s purpose.

Singer first argued that because the federal government regulates unmanned aircraft and local aircraft operations, there was federal intent to occupy the field. Specifically, the FAA stated that, “State law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.” As the FAA explicitly contemplated state law, the court rejected Singer’s argument that the entire field was exclusive to the federal government.
Singer next contended that the challenged sections of the Ordinance obstructed federal objectives and directly conflicted with federal regulations. First, the FAA explicitly has indicated its intent to be the exclusive regulatory authority for registration of pilotless aircraft. Here, since Newton intended to register all drones, the court found the Ordinance’s registration requirements were preempted. Next, because the FAA mandated that drone operators keep drones below an altitude of 400 feet from the ground or a structure, Newton’s restriction of any drone use below this altitude eliminated any drone use in the confines of the city, absent prior permission, was likewise preempted. Lastly, the court found that the subsection of the Ordinance that limited the methods of piloting a drone, beyond that which the FAA has already designated, was preempted. Accordingly, these portions of the Ordinance were severed by the court.

Singer v Newton, 2017 WL 4176477 (D. MA 9/21/2017)

This case arose from the Moab City Council’s denial of Mary and Jeramey McElhaney’s application for a conditional use permit to operate a bed and breakfast in their residential neighborhood. At issue in this case is the fact that the Council did not make explicit findings on whether the proposal met the requirements the Moab Municipal Code imposes. The McElhaneys appealed to the district court, which reversed the Council’s decision.

As pertinent to this case, Utah’s Municipal Land Use Development and Management Act (MLUDMA) provides that conditional uses “shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards.” Here, the Council made no explicit findings that supported its assertions that the proposed use did not meet the conditions of approval set forth in the Moab Municipal Code. Instead, the councilmembers merely expressed their concerns as they announced their votes. The court determined that further explanation from the Council was needed; without it, it would difficult find how placing a bed and breakfast in an area zoned R-2, which specifically permitted bed and breakfasts, was inconsistent with Moab’s general plan. Additionally, a reviewing court would need to know which impacts the Council believed would be more than “clearly minimal.”

However, instead of remanding the case the district court took it upon itself to examine Google Maps and draw conclusions about the traffic that the bed and breakfast might bring, even no councilmember explicitly cited traffic as the reason for the decision. Thus, while the district court correctly concluded that the Council failed to issue findings sufficient to support its denial of the McElhaneys’ application for conditional use permit, it erred in overturning the Council’s decision without remanding to permit the Council to make findings of fact and conclusions of law capable of appellate review.

McElhaney v City of Moab, 2017 WL 4216543 (UT 9/21/2017)

In this case, relators, Rocky Ridge Development, L.L.C., and Custom Ecology of Ohio, Inc., d.b.a. Stansley Industries, Inc., sought a writ of prohibition against respondent, Ottawa County Common Pleas Court Judge Bruce Winters. This case arose from the Ohio Environmental Protection Agency (“OEPA”) approving a Land Application Management Plan (“LAMP”), which permitted Stansley to use spent lime in a soil blend as general fill to increase elevation and improve drainage on its property. Benton Township filed a complaint for declaratory and injunctive relief against Rocky Ridge and Stansley in Ottawa County Common Pleas Court, alleging that the companies were violating the terms of the LAMP, were in violation of Benton Township local zoning ordinances and state law, and were creating a public nuisance. Judge Winters issued a temporary restraining order, and enjoined the relators “from operating in Benton Township until and unless they are in compliance with the Benton Township Zoning Resolution and the laws of the State of Ohio.”

Rocky Ridge first argued that prohibition was appropriate in this case because the matters before Judge Winters fell within the exclusive statutory jurisdiction of the Environmental Review Appeals Commission (“ERAC”). Here, the township contended that the LAMP was issued to an improper party, that Rocky Ridge violated the express terms of the LAMP, and that Rocky Ridge was conducting operations in violation of state law. The court found that all of those allegations directly challenged the validity of the LAMP or Rocky Ridge’s compliance with the LAMP, and therefore fell under ERAC’s exclusive jurisdiction. As such, the court held that Judge Winters lacked jurisdiction to consider these matters, and an issuance of a writ of prohibition was warranted as to these allegations.

The court next held that even assuming that Benton Township’s zoning regulations were preempted, it could not grant a writ of prohibition on that basis, because preemption does not create a jurisdictional defect in the trial court. As one of the parties to this case alleged preemption of local zoning ordinances due to conflict with state law, the trial court had jurisdiction to determine whether such a conflict existed. Accordingly, the court denied the requested writ as to any claims based on violations of the Benton Township Zoning Resolution.

Rocky Ridge lastly argued that ERAC had exclusive jurisdiction to consider Benton Township’s complaint, as it alleged that operations at the site were causing various nuisances. The court rejected this contention, finding that the Revised Code expressly preserved the traditional authority of the common pleas courts to hear nuisance suits. Thus, Judge Winters did not lack jurisdiction to determine whether the alleged nuisances were a result of permissible operations or a consequence of Rocky Ridge breaching the conditions in its LAMP.

State ex rel Rocky Ridge Development v Winters, 2017 WL 4182961 (OH 9/21/2017)

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