This abstract appears in the USDOJ’s newsletter, Religious Freedom in Focus (May 2020).

On May 20, the Justice Department filed a lawsuit against the Township of Jackson and its planning board, alleging that they violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA) by targeting the Orthodox Jewish community through zoning ordinances restricting religious schools and barring religious boarding schools.

“Using zoning laws to target Orthodox Jewish individuals for intentional discrimination and exclude them from a community is illegal and utterly incompatible with this Nation’s values,” said Eric Dreiband, the Assistant Attorney General for the Civil Rights Division, on the day the suit was filed.  “Let me be clear. The Department of Justice will use the full force of its authority to stop such anti-Semitic conduct and prevent its recurrence.”

Craig Carpenito, the U.S. Attorney for the District of New Jersey, also remarked on the suit filing, stating:  “Religious discrimination has no place in our society and runs counter to the founding principles of our nation.  No religious community should ever face unlawful barriers or be singled out for inferior treatment. This complaint reflects our continued commitment to combat discrimination and unequal treatment.”

The complaint, filed in the U.S. District Court for the District of New Jersey, alleges that the township passed and applied two zoning ordinances in a manner that discriminated against the Orthodox Jewish community.  The ordinances prohibit dormitories throughout Jackson, making it impossible for religious boarding schools such as Orthodox Jewish yeshivas to operate there. Although Jackson passed these ordinances to prevent dormitories anywhere in Jackson, the planning board has since approved, without requiring a variance, plans for two nonreligious projects with dormitory-type housing.

The complaint further alleges that the township and planning board enacted the ordinances against a backdrop of extreme animus by some Jackson residents and township decision-makers toward the Orthodox Jewish community and a movement by residents to keep Orthodox Jewish individuals from settling in Jackson.  The complaint alleges that the township and planning board’s actions towards the Orthodox Jewish community violate RLUIPA’s non-discrimination and equal-terms provisions, as well as the FHA.

 

This post was authored by Jacob H. Zoghlin, Esq., Senior Associate Attorney at The Zoghlin Group, PLLC.

In Gasparino v. Town of Brighton Zoning Board of Appeals, E2019011432 (Monroe Co. May 18, 2020), homeowners brought an Article 78 proceeding challenging the Town of Brighton Zoning Board of Appeals’ (the “ZBA”) decision to grant an area variance for a neighboring residential property. While acknowledging that “local zoning boards have broad discretion in considering applications for area variances,” the Court nonetheless found that the ZBA’s decisions violated the law and lacked a rational basis, and so vacated and annulled the ZBA’s decision.
 
The Court explained that, even though local zoning broads have discretion in reviewing area variance applications, they are still required to consider five factors, under Town Law §267-B, in weighing “the benefit to the to the applicant” from the variance against the “detriment to the health, safety and welfare of the neighborhood or community by such a grant.”
 
Here, the Court held that “the ZBA failed to make a finding with respect to factor five, whether the alleged difficulty was ‘self-created.’ By that omission alone it cannot be said that the decision of the ZBA had a rational basis or was consistent with law.” The Court went on to find that the applicants’ hardship was self-created because the applicants knew when they purchased the property that the homes’ layout was inconsistent with the way that the applicants wanted to use the home, and that these issues were not of the type that “became apparent over time with the changing needs of the family.”
 
While noting that the finding of self-created hardship is not dispositive, the Court explained that the ZBA nonetheless should have considered this factor in weighing the benefit to the applicant against the detriment to the community, “especially where the benefit barely stands on its own.”
 
The Court further held that the ZBA’s decision lacked a “ration basis” because it ignored evidence of the detriment to the neighborhood. Specifically, the Court chastised the ZBA for summarily rejecting the evidence presented by petitioners at the administrative level: “While the ZBA is well within its mission to make credibility findings, its statement that there was no ‘actual evidence,’ (whatever ‘actual’ means) is not accurate, because it contradicts testimony by residents…, testimony that was no less authoritative than the [applicants’] unsubstantiated testimony.”
 
The Court also found that the ZBA, in granting the variance from property setback limits, misstated a major purpose of setbacks, which is to “ensure adequate distances between structures and the residential neighborhood.”
 
Additionally, with respect to the variance’s detriment to the community, the Court found that the ZBA failed to consider, and therefore failed to balance, the imposition of the proposed structure on green space and the character of the neighborhood.
 
Similarly, the Court held that the ZBA’s finding that the variance was not “substantial” lacked a rational basis because the ZBA failed to consider whether the variance would result in an encroachment on green space.
 
Based on the foregoing, the Court granted the Article 78 Petition in its entirety, annulled the ZBA’s decision, and vacated the area variance.

This post is republished with permission from the RLUIPA Defense Blog.  The post with a link to a more complete article on the case is available here

Absent a petition for certiorari to the U.S. Supreme Court, the Feb. 6, 2020 denial of the plaintiffs’ petition for rehearing en banc by the U.S. Court of Appeals for the Second Circuit will bring to a close almost 13 years of litigation over the school zoning laws of the Village of Pomona. With the issuance of the court’s mandate, the Second Circuit panel decision of Dec. 20, 2019, Congregation Rabbinical College of Tartikov v. Village of Pomona, 945 F.3d 83, is now final. That decision overturned the district court’s finding that two Village zoning laws were enacted in 2001 and 2004 with the intent to discriminate against the Orthodox/Hasidic community, leaving those laws in effect.

This summary was contributed by Knauf Shaw

The City of Ithaca Fire Chief was also chair of the NYSDOS Syracuse Regional Board of Review. He informed a developer of a student housing development in Ithaca that it would require a variance from the Board for the uniform fire code. Though he recused himself from the review of that application before the Board, he presented in favor of that application at the hearing. The Court annulled the grant of a variance because the Fire Chief’s participation in the hearing gave the appearance of impropriety.

Grout v. NYSDOS, Supreme Court Onondaga County, Index No. 009764/2019 (4/17/2020)

 

This post was contributed by Knauf Shaw

Prospective developer of a waste to energy facility challenged an amendment to zoning ordinance which prohibited the proposed project. Though the Town did refer the proposed amendment to County Planning, it subsequently amended the ordinance and did not resubmit the language to County Planning. The Court annulled the legislation, finding that, because “the changes literally added matters of substance to the zoning ordinance,” “a new referral under GML § 239-m was required.”

Circular EnerG v. Town of Romulus, Supreme Court Seneca County, Index Number 20180124 (5/15/2020)

 

This summary was contributed by Knauf Shaw

 

Citizen group challenging a greenhouse development sought to appeal determination of zoning compliance to ZBA ahead of Planning Board hearing on site plan approval. Town attorney refused to hear appeal on basis that no appealable decision had been made. Court annulled all approvals and remanded to ZBA, finding that a determination of zoning compliance was a determination subject to ZBA appeal, and that a planning board was not empowered to determine zoning compliance.

Webster Citizens for Appropriate Land Use v. Town of Webster, Supreme Court Monroe County, Index Number E2019011898 (5/18/2020)

 

This post was contributed by Knauf Shaw

A Neighbor group opposed redevelopment of divinity school campus in the City of Rochester into mixed use project. The Court found that lead agency took the appropriate hard look in issuing negative declaration, and that this decision was not arbitrarily contrary to a decision involving a nearby parcel which resulted in a positive declaration. That parcel was new development of undeveloped land, whereas the project at issue in this case was redevelopment and reuse of already developed land. Spot zoning claim related to rezoning for project failed to satisfy reasonable doubt standard.

Colgate Neighbors v. City of Rochester, Supreme Court Monroe County, Index Number E2019008556 (5/12/2020)

This post is republished with permission from the Rocky Mountain Sign Law Blog.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs.

In a relatively short order, the district court found that the Billboard Act was unconstitutional, both facially and as applied.  Although the court relied on Thomas v. Bright, a recent Sixth Circuit decision that invalidated the Tennessee Billboard Act as applied to noncommercial speech, it still found that the on-premises/off-premises distinction failed intermediate scrutiny.  The court observed that the Lion’s Den billboard did not interfere with aesthetics or traffic safety along I-65, and certainly not in a manner worse than an on-premises sign of the same nature would have.  Because the state failed to provide evidence supporting its arguments that off-premises billboards more seriously injure the state’s interests in aesthetics and traffic safety, the court found the Act unconstitutional.

The court further refused to sever the unconstitutional portions of the law from the remainder of the law, instead choosing to invalidate the entire Kentucky Billboard Act, reasoning that the state would not have enacted the law without the unconstitutional portion.

The decision in this case was issued by Judge Justin Walker, the same judge that recently invalidated Louisville’s ban on religious gatherings during the COVID-19 crisis.  Judge Walker received some media fame when he was nominated for his current seat, as the American Bar Association rated him unqualified due to his age (he is 37) and relative inexperience.  He has now been nominated by President Trump to the federal appeals court of the District of Columbia Circuit.  The results of these cases suggest that Judge Walker takes a strict view of First Amendment liberties, as this case further chips away at commercial speech restrictions.

L.D. Mgmt. Co. v. Thomas, ___ F. Supp. 3d ___, 2020 WL 1978387 (W.D. Ky. Apr. 24, 2020).

Posted by: Patricia Salkin | April 16, 2020

IL Court Denies TRO to Stop Remote City Council Meeting During COVID

This post is republished with permission from Ancel Glick’s Municipal Minute Blog

In Evans v. City of Joliet, four individuals brought a motion for a temporary restraining order (TRO) and preliminary injunction on Monday asking a judge to issue a TRO against the City to stop it from conducting a meeting on a proposed annexation relating to a controversial warehouse, distribution, and manufacturing development called NorthPoint.
Plaintiffs made two arguments in their TRO motion. First, they claimed that the meeting was not “necessary” under the Governor’s Executive Orders, including the Governor’s stay at home order and the Governor’s order allowing remote meetings of government bodies. Plaintiffs argue that there is no indication that the City will be harmed if the vote on the annexation is postponed until an “open” meeting can be held. Second, they claimed that the proposed remote meeting did not comply with the OMA requirement that meetings be “reasonably accessible.” Specifically, plaintiffs argued that some residents may not have access to cable TV or the Internet to be able to watch the meeting. Plaintiffs argued that the City should have gone further in providing technical assistance to residentsit is  in how to attend the meeting and should have provided a phone number to answer questions and assist residents, or alternatively, should have made accommodations for residents to attend the meeting in person.
The motion was filed on Monday morning, and the Court held a hearing by conference call on Monday afternoon. The Court first determined that the issue of whether a meeting is necessary or not is up to the City and its elected officials, and not the Court, to decide. Second, the Court determined that the City had provided a “reasonable opportunity to participate” to members of the public by announcing the meeting five days in advance, permitting the public to comment by telephone and email, streaming the meeting live on the City’s website and on public access television, and recording the meeting and making it available on the City’s website after the meeting. The Court noted that a very small segment of the population may not have access to the Internet or cable TV but that did not make the City’s meeting illegal.
In sum, the Court did not find a violation of the OMA and denied the request for a TRO to stop the meeting.

This post is republished with permission from the Rocky Mountain Sign Law Blog

A federal district court in Wisconsin ruled that Adams Outdoor Advertising’s claims that the Madison sign ordinance is unconstitutional could not survive summary judgment.  The ruling in the city’s favor is further support for the proposition that Reed v. Town of Gilbert does not upset longstanding commercial speech doctrine.

The Madison sign ordinance generally prohibits billboard advertising in most areas of the city.  Where they are permitted, billboards are subject to strict regulation as to setback, height, sign area, and spacing between signs.  The city also operates an exchange program, whereby owners of signs that are removed due to redevelopment can “bank” their sign area and obtain a permit in another area of the city.  The city also prohibits digital signs.

Beginning in 2016, Adams Outdoor sought permits for billboards in the city.  It first sought to avail itself of the sign exchange program with respect to one of its signs, but the city determined that the sign was not eligible for the banking program.  Adams Outdoor then submitted 26 applications to the city in 2017 seeking to modify or replace existing billboards.  The city denied 25 of the 26 permits on the grounds that the sign ordinance did not permit the modifications in question.  Adams Outdoor appealed 22 of the denials to the city’s Urban Design Commission, while also filing a lawsuit in federal court.  After the filing of the lawsuit, the city adopted a variety of amendments to its sign ordinance, to ensure that the ordinance complied with Reed.

After finding that Adams Outdoor had standing to raise a facial challenge to the billboard ban, although it did not have standing to challenge portions of the sign ordinance that do not apply to its signs, the court considered whether Adams Outdoor’s claims were precluded under the doctrine of res judicata.  In 1993, the city and Adams Outdoor had entered into a stipulated judgment in another case in which Adams Outdoor challenged the city’s billboard ban, but which resulted in the city granting Adams Outdoor 16 billboard permits.  The court rejected Adams Outdoor’s arguments that changes in the city’s sign ordinance and First Amendment law—mostly stemming from the changes wrought by Reed—could defeat the city’s claim preclusion defense.

Although the court found that Adams Outdoor’s claims were precluded, the court continued to evaluate the billboard company’s First Amendment claims.  However, the court found that those claims would have failed anyway.  The court determined that the ban on billboard advertising in the city, as well as the ban on digital advertising, were not content based.  The court observed that Reed did not address regulation of commercial speech, and further observed that Reed did not invalidate the on-premises/off-premises distinction used to regulate billboards.  The court also distinguished Thomas v. Bright, the Sixth Circuit’s recent case that appeared to question the on-premises/off-premises distinction.  The Madison ordinance was then evaluated as a time, place, and manner regulation under intermediate scrutiny, and the court found that it was constitutional under the First Amendment, as it directly advanced the city’s interests in public safety and aesthetic beautification.

The court also rejected Adams Outdoor’s claims that the ordinance was vague, that it constituted an improper prior restraint, and that it violated the Equal Protection Clause of the Fourteenth Amendment.  With respect to the prior restraint question, the court determined that the eligibility criteria for the advertising sign bank program were not so broad as to give the zoning administrator undue discretion.

Adams Outdoor Adver. Ltd. Partnership v. City of Madison, No. 17-cv-576-jdp, 2020 WL 1689705 (W.D. Wis. Apr. 7, 2020).

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