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)

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)

Garden City decided to rezone a parcel of land, the “Social Services Site,” that had been previously occupied by governmental offices. It rezoned the Social Services Site “Residential-Townhouse” (“R-T”). Townhouses were defined as single family dwelling units, and the development of multi-family dwellings was limited to less than 15% of the Social Services Site. MHANY, which was then known as New York Acorn Housing Company (“NYAHC”), complained that the R-T zoning would not allow for any affordable multifamily housing, but still submitted a bid to build a nonconforming multi-family development on the Social Services Site, “in protest.” After the contract was awarded to another development company, NYAHC prepared four proposals under the R-M zoning control. The trial court found that Garden City identified several legitimate nondiscriminatory interests, but failed to meet its burden in demonstrating “the absence of a less discriminatory alternative.” The Circuit Court remanded with instructions to determine whether the Plaintiffs MHANY Management, Inc. and New York Communities For Change, Inc. proved at trial that the “substantial, legitimate, nondiscriminatory interests” advanced by Garden City in support of its zoning shift “could be served by another practice that has a less discriminatory effect.”
On remand the court first found that was unable to re-examine the Plaintiffs’ prima facie case because the Second Circuit explicitly affirmed the finding that the Plaintiffs met their prima facie burden, and the law of the case prevented the court from relitigating the issue. Next, the court determined that the Plaintiffs met their burden in showing that R-M zoning would have served the Defendants’ interests in not overburdening public schools, and reducing traffic. The court previously held that R-M zoning would have provided for a significantly larger percentage of minority households than the pool of potential renters in the R-T zoning. As such, the court held that R-M zoning controls would have a less discriminatory effect than R-T zoning controls.

Utilizing HUD’s interpretation and implementation of the FHA discriminatory effects standard, the court found that it was not required to find that the less discriminatory alternative must be equally effective in serving the defendant’s interests. Here, R-T zoning was not necessary to create a transition zone because R-M also accomplished it, and Garden City’s eventual plan did not include transition. Furthermore, the court found that neither R-M zoning nor R-T zoning would have overburdened or strained the public schools, and that both the R-M zoning and the R-T zoning would have reduced traffic levels. Accordingly, the court affirmed the holding that the adoption of R-T zoning instead of R-M zoning had a disparate impact on minorities in Garden City.

MHANY Management, Inc. v County of Nassau, 2017 WL 4174787 (EDNY 9/19/2017)

Posted by: Patricia Salkin | September 15, 2017

New Report on Inclusionary Housing in the US

The Lincoln Institute of Land Policy published a new report on Inclusionary Housing.  The following is the abstract:

“Inclusionary housing refers to any programs or policies that require or incentivize the creation of affordable housing when new development occurs, including impact or linkage fees that generate revenue for affordable housing. Through the most comprehensive investigation on inclusionary housing conducted to date, this study identifies 886 jurisdictions with inclusionary housing programs located in 25 states and the District of Columbia at the end of 2016. The vast majority of jurisdictions with inclusionary housing are located in New Jersey (45 percent), Massachusetts (27 percent), and California (17 percent). These places have state-wide inclusionary housing policies or state policies that promote the local adoption of inclusionary housing policies. Many jurisdictions reported having more than one inclusionary housing policy; a total of 1,379 were identified in 791 jurisdictions on which this information was available.

Although comprehensive data on impact and program characteristics was not available for the majority of programs, the study did find that 373 jurisdictions reported a total of $1.7 billion in impact or in-lieu fees for the creation of affordable housing. Jurisdictions also reported creating a total of 173,707 units of affordable housing, which predominantly excludes additional units created with the $1.7 billion in fees:

• 443 jurisdictions reported creating 49,287 affordable homeownership units;

• 581 jurisdictions reported creating 122,320 affordable rental units; and

• 164 jurisdictions reported an additional 2,100 affordable homes.

Due to missing data, these numbers substantially underestimate the total fees and units created by the entire inclusionary housing field.

Of the 273 inclusionary housing programs for which information on program characteristics was gathered, over 70 percent were developed after 2000, and 71 percent of programs applied to the entire jurisdiction. The most common program type was mandatory, and policies applied to both rental and for-sale development in 61 percent of programs. Approximately, 90 percent of all programs reported affordability terms of at least 30 years. The most common ways that developers could provide affordable housing was through on-site development in 90 percent of programs or through paying in-lieu fees or providing off-site affordable housing in roughly half of all programs. The most common incentives offered to developers were density bonuses (78 percent), other zoning variances (44 percent), or fee reductions or waivers (37 percent).

This study supports that inclusionary housing programs are an increasingly prevalent tool for producing affordable housing. Additionally, local inclusionary housing programs are: (1) prioritizing on-site affordable housing development, which may be an effective strategy to place affordable housing in neighborhoods of opportunity; and (2) ensuring long-term affordability, which is an effective way to maintain community assets and the affordable housing stock.”

To view the complete report see:

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

A federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored. The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny.

The Bedford sign ordinance was challenged by an individual, Sam Shaw, who sought to display political signs, which were characterized by some as “offensive and mean-spirited,” in his yard. The ordinance contained sign classifications based on certain physical characteristics, i.e. flags, temporary signs, and permanent signs, with size, height, and setback requirements. The sign ordinance also prohibited permanent signs in residential yards. Although the plaintiff conceded that the ordinance was content neutral, he challenged the law based on the underlying governmental interests and narrow tailoring.

Reviewing the plaintiff’s motion for preliminary injunction, the district court agreed that the government’s stated interests in aesthetics and traffic safety were sufficient to support the sign ordinance. Although the plaintiff argued that the total prohibition on permanent signs was not narrowly tailored to the city’s interests, the court deferred to the city’s aesthetic and traffic safety judgments that permanent signs could have greater impact than temporary signs. The court also found that the ordinance provided ample alternative channels for communication, because the ordinance allowed the display of temporary signs.

Shaw v. City of Bedford, 2017 WL 2880117 (S.D. Ind. Jul. 6, 2017).

Posted by: Patricia Salkin | September 13, 2017

Fifth Circuit Court of Appeals Upholds Restrictions on Park Structures

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


The Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment. The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others. To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles. The riddles are intended to attract people to stop by and ask him about them. The park rules prohibit structures larger than four feet by four feet without a permit. Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park. In 2015, he received a criminal trespass warning. After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.

The district court denied Moore’s motion for a preliminary injunction. On appeal, the Fifth Circuit determined that the structure rule was content neutral. The court further determined that the city’s interests in public safety and coordinating uses of the park were substantial, and that the rule was narrowly tailored and Moore had alternative locations at which to conduct his activity (a nearby park area allowed his sketch board). The court also found that the permitting requirement was not unconstitutional as a prior restraint, because the structure regulation did not have a close nexus to expression. The court’s analysis concluded with a finding that the rule was not unconstitutionally vague.
Curiously, the court treated the regulation as one of speech instead of conduct. Although the court’s analysis of the prior restraint claim noted that regulation lacked a close nexus to expression, the court could have disposed of the case by reviewing it under United States v. O’Brien, in which the court would not have been required to conduct the usual intermediate scrutiny analysis, reviewing the government’s interest in the regulation and narrow tailoring. Regulations of conduct that have only incidental effects on speech need not be reviewed under that standard.

Moore v. Brown, 868 F.3d 398 (5th Cir. 2017)

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