In this case, Plaintiff Phantom Ventures, LLC, appealed the City of Chelsea Zoning Board of Appeals’ denial of a building permit to renovate a building for a live nude dancing venue with the sale of food and alcohol.  The Zoning Board found that live nude dancing was not permitted where the building was located. Plaintiff’s Amended Complaint sought a declaratory judgment that the decision of the Zoning Board was incorrect, or that the proposed use was grandfathered based on the prior owner’s use of the property. In the alternative, Plaintiff challenged Chelsea’s Code of Ordinances as unconstitutional.

At the outset, Defendants first argued that Plaintiff’s suit was mooted by the City of Chelsea’s adoption of a revised definition of “adult entertainment establishment.” The court rejected this argument, finding that Plaintiff was continuing to seek redress for the denial of the permit in 2015, and continuing to challenge the constitutionality of the Code so that it may obtain a permit in the present. As such, the issues presented were live and the parties were found to have legally cognizable interests in the outcome. Plaintiff first argued that it was entitled to a building permit when it applied because live adult nude dancing was not specifically delineated as an activity within the Code prior to the recent amendment, and the Zoning Board should have found that adult live nude dancing was an “Art use” permitted as of right in the Industrial District. The court determined that the Zoning Board did not err in rejecting Plaintiff’s contention that nude dancing fell within the definition of Art use, because Art use was defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction.” The court found that this definition referred to the creation of physical objects, rather than performance art such as dancing.

Plaintiff next argued that the business should be allowed as of right as a pre-existing use under state law. This argument was rejected by the court since the “grandfather” provision of the Massachusetts zoning enabling statute explicitly stated it “shall not apply to establishments which display live nudity for their patrons…” As to the constitutional claims, the court noted that Plaintiff failed to demonstrate that the Code was an unconstitutional total ban on “adult entertainment establishments”, as there was no evidence indicating that there was no available land in the Highway Business or Shopping Center Districts. The court also rejected the Plaintiff’s argument that the Code was facially unconstitutional because the special permit process vests too much discretion in the Zoning Board.  Here, the Board’s discretion was not unbridled due to the Code’s requirement that the Zoning Board consider six mandatory criteria and that the decision be written.

Lastly, the plaintiff claimed that the Code was an unconstitutional time, place, and manner restriction because it allowed “adult entertainment establishments” only in certain districts within the City. Here, the City failed to show that the Code’s requirements limiting “adult entertainment establishments” to the Highway Business or Shopping Center Districts were enacted as a means of ameliorating the secondary effects of adult entertainment. The court found this provision was severable, as striking the “adult entertainment establishment” portion of sections 34-300 of the Code would not render the remaining code contradictory or incoherent. Accordingly, the court remanded the case to the Zoning Board for further consideration.

Phantom Ventures LLC v. DePriest, 2017 WL 903456 (D. Mass. 3/7/2017)

Editor’s Note: The following information appears in the USDOJ’s March 2017 Religious Freedom Focus Newsletter available:

On March 10, a federal court in Michigan approved a settlement of the United States’ suit against the City of Sterling Heights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which alleged that the city illegally denied a mosque approval to build in the city.

The United States had filed suit on December 15 alleging that the city discriminated against the American Islamic Community Center (AICC) on the basis of religion when it denied AICC zoning approval for a mosque. The suit also alleged that the denial imposed a “substantial burden” on AICC’s religious exercise in violation of RLUIPA. The AICC, currently located in Madison Heights, Michigan, sought the Sterling Heights location because it is more centrally located for its members and its current space has become too small to accommodate its worship, educational and social needs.

This case involved the consolidated appeals of Aram K. Jerrehian, Jr. and of Jeffrey and Marsha Perelman, who challenge a land use order of the Court of Common Pleas of Montgomery County. The Perelmans challenge the trial court’s holding that Jerrehian’s lot had been created by a valid subdivision and had not merged into an adjacent lot, and that he could not build a house on the lot without a variance from the dimensional requirements for a buildable lot. The trial court affirmed the order of the Zoning Hearing Board of Lower Merion Township without taking additional evidence.

On appeal, the Perelmans first argued the Zoning Board erred in finding the right-of-way to the Pool Lot actually existed, since it was not listed in subsequent deeds that transferred property burdened by the right-of-way. In response, Jerrehian claimed the right-of-way was listed in the 1961 Lot Location Plan and in the 1968 and 1972 Subdivision Plans, which were approved by the Township. As these findings were supported by the record evidence, the court rejected the Perelmans’ assertion that a right-of-way to the Pool Lot did not exist.

The Perelmans next alleged that the Zoning Board erred in holding that the Pool Lot was a lawfully existing separate lot, since it was not created by a valid subdivision. Here, the record indicated that in 1961, the Township engineer reviewed the subdivision and approved it. Furthermore, the Township engineer examined the surveys done on the four lots created, one of which was the Pool Lot, in the estate distribution. The Township Engineer then approved the Lot Location Plan, which depicted the courses and distances of the four lots, including the Pool Lot. Accordingly, the court found that the Zoning Board did not err in concluding that the Pool Lot was a valid and lawful lot.

Lastly, the Perelmans argued that even if the Pool Lot actually existed, it merged with another lot (103 Cherry Lane). The Perelmans presented evidence that the Pool Lot (115 Cherry Lane) and 103 Cherry Lane were used as a single lot by the O’Malley family from August 2003 through January 2005, who installed a circular driveway that used the common boundary line of the two lots. The two lots were also conveyed to the O’Malleys by a single deed in 2003. Despite this, the Zoning Board found that even though the O’Malleys took title to the property by a single deed, that deed separately described each lot. Moreover, each lot had a separate tax parcel number. Additionally, the O’Malleys sold 103 Cherry Lane in 2005, and then sold the Pool Lot to Jerrehian in 2006. The court found that the O’Malley’s “use of a driveway in the easement area” did not satisfy the Perelmans’ heavy burden of proof, and no merger took place. Accordingly, the Court sustained the appeal of Jerrehian and rejected the appeal of the Perelmans.

In re Jerrehian  2017 WL 875287 (PA Cmlth 3/6/2017)


Kerley Family Homes, LLC was granted a variance by the City of Cumming’s Board of Zoning Appeals, and neighboring homeowners aggrieved by the variance sought to appeal the BZA’s decision by filing a complaint seeking a writ of mandamus and an injunction in the superior court. The defendants argued that they were entitled to summary judgment against the homeowners because the zoning variance decision was a quasi-judicial decision that could be challenged in the superior court only by a petition for certiorari under OCGA §5-4-1. The superior court denied summary judgment and granted both sets of defendants’ requests for certificates of immediate review. The City defendants and Kerley defendants the filed applications for interlocutory appeal in the Court of Appeals, which was transferred to the Supreme Court of Georgia.

At the outset, the court noted that the inconsistency between the local-ordinance requirement and general principles of appellate procedure law created “a trap for unwary litigants, lawyers, and judges trying to determine if appeals of zoning decisions to the superior court properly proceed by certiorari or mandamus”. The court found that the determination of whether a decision is quasi-judicial must be made under the local-ordinance requirement, because a decision that is not quasi-judicial cannot be appealed by certiorari under OCGA § 5-4-1 even if the local ordinance explicitly provides for certiorari. Moreover, the stare decisis factors weighed heavily in favor of disapproving other cases that had expressed the local-ordinance requirement in the context of zoning variances or conditional or special use permits, to the extent that these cases held that a quasi-judicial decision of a local zoning board could be appealed to the superior court by mandamus rather than certiorari based on what the local ordinance said about such appeals.
Setting aside the local-ordinance requirement, the court found that OCGA § 5-4-1 applied in this case and that the Homeowners were entitled to seek review of the BZA’s quasi-judicial decision granting a zoning variance to Kerley by petition for certiorari in the superior court, as certiorari was available and mandamus was not. As such, the court found the trial court erred in denying the City and Kerley defendants’ motion for summary judgment and allowing the Homeowners’ petition for mandamus to proceed. The court also reversed the trial court’s ruling denying summary judgment and allowing the Homeowners’ claim for an injunction to proceed, since a petition for certiorari provided an adequate legal remedy.

City of Cumming v. Flowers, 2017 WL 875041 (GA 3/6/2017)


Friends of the Motherhouse, a nonprofit corporation, and Raymond Foote and Barbara Weed appealed from a summary judgment entered by the Superior Court in favor of the defendant City of Portland and intervenors Sea Coast at Baxter Woods Associates, LLC, and Motherhouse Associates LP (collectively “Sea Coast”). Following the Council’s rezoning action, Sea Coast applied to the Planning Board for a four-lot subdivision of the entire property, as well as a subdivision in the Motherhouse consisting of sixty-six affordable and twenty-two market-rate senior housing units. Friends filed a two-count complaint for declaratory judgment in the Superior Court seeking to invalidate the Council’s rezoning action. The complaint asserted that the comprehensive plan required that R–5A zones be created only by contractual or conditional rezoning, and that the map and textual amendments were “substantively inconsistent with the Comprehensive Plan’s goals and policies for the Deering Center/Stevens Avenue neighborhood.” The trial court denied Friends’ complaint that the Portland City Council’s rezoning of a parcel owned by Sea Coast was invalid.

At the outset, the court noted that a zoning or rezoning action may be in basic harmony with the comprehension zoning plan so long as it strikes a reasonable balance among the municipality’s various zoning goals or overlaps considerably with the plan. On appeal, Friends argued that the amendments were inconsistent with the comprehensive plan because the Council did not employ conditional or contract zoning. The court disagreed, finding that the comprehensive plan did not specify a particular method for rezoning a property as R–5A, and was silent regarding conditional or contract zoning in the section defining the R–5A zone. Instead, the comprehensive plan merely stated that “the R–5a is applied though rezoning when a site and development proposal meets the intent of this zoning classification.”

The court determined that basic harmony with the comprehensive plan, rather than harmony with the former zoning ordinance, was the test that the court should apply when reviewing the Council’s zoning decision.  Because that test was satisfied in this case, the court affirmed the trial court’s holding that Sea Coast was entitled to judgment as a matter of law.

Friends of Motherhouse v. City of Portland, 152 A.3d 159 (ME 12/8/016)


The Environmental Driven Solutions, LLC (“EDS”) received a permit from the Commission for a waste oil treating plant in Dunn County, which allowed EDS “to recycle and treat waste crude oil obtained from drilling operations, pit oil, swab oil, acid oil, tank bottoms, oil spills, pipeline breaks, skim oil from saltwater disposal tanks, and other waste crude oil related to oil and gas exploration and production.” After EDS began constructing the treating plant, the County issued notices of “violation and order to abate,” claiming the treating plant could not be constructed on the site because the property was zoned “Rural Preservation,” and “Salt Water Storage Tank & similar facilities” were not an “allowed use.” EDS then applied to the County to rezone the property, but the County denied the application because its Land Development Code required 120 acres to rezone and EDS’s property comprised only 118.58 acres. Next, EDS applied for a conditional use permit, but the County denied the application. Following this denial, EDS brought a declaratory judgment action against the County, and the district court held that the Commission had exclusive jurisdiction to determine the location of the oil and gas waste treating plant and the County’s zoning ordinances were preempted by state law.

On appeal, the County contended that the district court erred because the Commission did not have the power to permit oil waste treating facilities that were barred by a county’s “properly-enacted zoning ordinance and land use comprehensive plan.” The court found, however, that the Commission had the express authority under N.D.C.C. § 38– 08–04(2)(a) to regulate “all other operations for the production of oil or gas,” and a “treating plant” qualified as an “other operation” for the production of oil and gas. Furthermore, the comprehensiveness of the state laws and regulations suggested that the Legislature intended to preclude enforcement of local laws on the siting of waste treating plants. While the County claimed it had “shared jurisdiction” with the Commission over the location of the treating plant based on the permit’s requirement that the treating plant “comply with all applicable local … laws and regulations,” the court determined that the Commission’s order would supersede any county zoning requirements. Accordingly, the court affirmed, holding that the County had no authority through its zoning regulations to veto the Commission’s siting of an oil and gas waste treating plant.

Environmental Driven Solutions, LLC v. Dunn County, 2017 WL 899992 (ND 3/7/2017)

Appellants Cornell Restaurant Ventures, LLC; MJP & JCW, Inc.; Jilco, Inc.; and MRG of South Florida, Inc. were the owners and operators of the adult-entertainment clubs known as “Pure Platinum” and “Solid Gold,” appealed the district court’s grant of summary judgment to the City of Oakland Park on the Owners’ complaint challenging the City’s sexually oriented business licensing regulations. On appeal, the Owners alleged that the enforcement of the licensing regulations against Pure Platinum was barred by a permanent injunction entered by a United States district court in 1987; and there was a genuine issue of material fact as to whether the regulations violated the First Amendment.

According to the Owners, the 1987 injunction “enjoined the City of Oakland Park from prohibiting the operation of a ‘Group D Cabaret,’ which included non-obscene nude dancing” and the sale and consumption of alcoholic beverages. Specifically, since the licensing regulations prohibited full nudity and alcohol, the Owners alleged that forcing them to comply violated their rights under the 1987 injunction. The court found, however, that the “right” created by the 1987 injunction was narrower in scope, and only provided that the establishment be protected from enforcement of the 1977 zoning regulations contained in § 24-28A.2 of the Oakland Park Code based on the zoning regulations’ grandfather clause: prohibiting strip clubs from operating within 1,000 feet of a school. Accordingly, the court found that the 1987 injunction had no force with respect to the licensing regulations at issue.

Owners next argued that there were genuine issues of material fact regarding whether the licensing regulations advanced a substantial government interest. In response, the City asserted that its licensing regulations served the substantial government interest of reducing the negative secondary effects associated with sexually oriented businesses.  The Owners did not dispute that this was a substantial government interest. As such, the court found that the owners failed to cast doubt either on the City’s findings that sexually oriented businesses contributed to urban blight and negatively impacted property values, or its concern with public health and the spread of sexually transmitted diseases. Thus the City’s licensing regulations were reasonably designed to serve the substantial government interest of reducing the negative secondary effects associated with sexually oriented businesses. The court therefore affirmed the district court’s grant of partial summary judgment in favor of the City on the Owners’ challenge to the 2004 licensing regulations on sexually oriented businesses.

Cornell Restaurant Ventures v City of Oakland Park, 2017 WL 908196 (11th Cir. CA 3/8/2017)


Editor’s Note: This blog post by Brian Connolly, Esq. originally appeared on the Rocky Mountain Sign Law Blog here:

In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine.  That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.

In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store.  That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses.  The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down.  Taboo was located in one of the restricted areas, and continued to operate for the amortization period.  At the end of the amortization period, Taboo sued the city under the First Amendment.

The district court entered summary judgment in favor of the city.  On appeal, the Fourth Circuit agreed with the district court’s analysis and applied the three part standard from City of Los Angeles v. Alameda Books, finding that the regulation did not completely ban adult businesses, was aimed at the secondary effects of adult businesses, and served the city’s substantial interest in ameliorating such secondary effects.

The Fourth Circuit’s analysis is interesting in three ways.  First, the decision does not discuss or even cite Reed v. Town of Gilbert, which the Third Circuit Court of Appeals applied in a widely-panned decision last year reversing elements of the secondary effects doctrine.  Thus, the Fourth Circuit appears to have followed the Seventh Circuit’s view that Reed has not impliedly reversed Alameda Books or its predecessor cases.  Second, the court did not give much credence to Taboo’s argument that, because the ordinance was passed shortly after it opened for business and was clearly in response to Taboo, the ordinance was inherently content based and targeted Taboo.  The court relied on precedent to hold that “[t]he mere fact that an adult business has prompted a regulation” does not necessitate the conclusion that the regulation is content based.  Third and finally, the Fourth Circuit appeared to follow City of Renton v. Playtime Theatres in holding that the city was not required to make a showing of secondary effects experienced in its neighborhoods; data and experience from other jurisdictions was sufficient to substantiate the city’s interests in the regulation.  This conclusion appears to depart from the Supreme Court’s later decision in McCullen v. Coakley, which several courts have relied on to impart a higher evidentiary burden on local governments enacting regulations of speech.

Cricket Store 17, L.L.C. v. City of Columbia, 2017 WL 360545 (4th Cir. CA, unrep. Jan. 25, 2017).


Posted by: Patricia Salkin | March 17, 2017

IA Appeals Court Finds Landowners Violated City Fence Ordinance

This case arose from a complaint the City of Ames received that homeowners Angela Doss and Duane Huffer were building a six-foot-tall fence in their backyard. The city inspected the fence project and notified the homeowners in a letter that their ongoing project violated the fence ordinance. After another inspection, the city sent a second violation letter. The homeowners appealed to the Ames Zoning Board of Adjustment, which unanimously denied the homeowners’ appeal. The District court then ruled that the homeowners’ partition-fence issue was not preserved for review and resolved the other four alleged illegalities in favor of the Board, annulling the writ.

On appeal, the court noted that any decision reached by a board of adjustment had a strong presumption of validity. Even assuming error was preserved, the court found no merit to the homeowners’ accusation the district court was biased in favor of the city. As to the homeowners’ other claims, the court agree with the district court’s well-reasoned decision to annul the writ. Accordingly, the court affirmed the holding of the district court.

Doss v. Zoning Board of Adjustment for City of Ames, 2017 WL 702373 (IA App. 2/22/2017)

Plaintiff Parkview Homes, LLC proposed its plan to construct new manufactured homes to the City of Lexington in 2014. Soon after this initial proposal, the City informed Parkview that the proposed homes did not meet the building code’s minimum square footage and width requirements, and the City would therefore not approve the requested permits. The City also notified Parkview that it would not approve Parkview’s applications until it satisfied six requirements, including providing a “comprehensive plan” of its “proposed rehabilitation of the park,” including information on lot setbacks and boundaries, construction and utility plans, storm water compliance, disability accessibility, and sewer discharge data.  In response, Parkview sought a declaratory judgment that the City’s refusal to issue the requested permits was improper because it conflicted with federal law regarding the requirements for manufactured homes.  Parkview also asserted a claim under 42 U.S.C. § 1983 alleging that the City “impermissibly attempted to interfere and actually interfered” with Parkview’s property interests in the Community by refusing to issue the requested permits under false pretenses.

As to the federal preemption claim, the court noted that Congress did not intend for the American Homeownership and Economic Opportunity Act (“AHEOA”) to extend preemption to local standards that did not concern safety and construction requirements for manufactured homes. Here, the only specific Code provisions that Parkview identified as preempted by § 5403(d) were those setting minimum width and square footage requirements for manufactured homes. The court declined to find that these provisions were related to construction or safety standards; thus, Parkview’s preemption claim failed as a matter of law.

Lastly, because Parkview’s preemption and § 1983 claims failed, the only question that remained was whether the court should exercise pendant jurisdiction over the remaining state law claims. Here, the court found that because these claims dealt solely with matters of state law, they would be best addressed in state court. Accordingly, the court declined to exercise supplemental jurisdiction over Parkview’s remaining state law claims.

Parkview Homes, LLC v. City of Lexington, 2017 WL 758573 (D. MN 2/27/2017)

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