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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary judgment reversed, case remanded for more.

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


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

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

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

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

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

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

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

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


Below is a link to the new federal guidance related to consideration of climate change in NEPA reviews. These considerations may end up being considered by local governments in seeking guidance for efforts to consider climate change in land use/zoning and infrastructure projects. https://www.whitehouse.gov/sites/whitehouse.gov/files/documents/nepa_final_ghg_guidance.pdf

The Checkettses owned and operated a custom countertops business. Before 2004, the Checkettses cut the countertops at their customers’ residential and business sites; however, in 2004, the Checkettses began cutting the countertops offsite in a storage building on a residential lot (the Property) they owned in Providence City. In 2005, the Checkettses obtained a building permit from the City to build a commercial addition to the storage building on the Property, and completed construction of the $125,000 addition in May 2006. In 2008, several of the Checkettses’ neighbors petitioned the City to shut down the Checkettses’ business on the Property, and over the next seven years, several administrative proceedings, lawsuits, and negotiations ensued. The Checkettses filed suit in district court, alleging that they were entitled to continue running their business as they have done for the past eight years, based on “zoning estoppel.” In this case, appellants Chris Checketts and Sandra Checketts appealed from the district court’s order dismissing their complaint for failure to exhaust administrative remedies.

On appeal the Checkettses contended that the district court erred in dismissing their complaint for failure to exhaust administrative remedies, because “there were no administrative remedies available to the Checkettses by which they could seek or obtain relief based on a theory of equitable or zoning estoppel.” The court found that the Checkettses’ First Appeal was moot because, by filing three administrative appeals, the Checkettses exhausted their administrative remedies. Thus, the Checkettses received a decision on the merits of their equitable estoppel claim from the Appeal Authority, and the district court, which rejected the Checkettses’ claims on the merits as well. Moreover, even if the district court erred in dismissing the Checkettses’ case for failure to exhaust their administrative remedies, the reversal of the district court’s dismissal could not affect the Checkettses’ rights, since the district court already ruled on the merits of the Checkettses’ claims in the Second Appeal.

The court also found all three elements of claim preclusion were met: this appeal involved the same parties as the Second Appeal – the Checkettses and the City; the argument presented by the Checkettses in this appeal “could and should have” been raised in the Second Appeal; and the Checkettses conceded at oral argument before this court that the Second Appeal resulted in a final judgment on the merits. Finally, the court found the pursuit of this appeal was frivolous, as the Checkettses failed to mention that they had exhausted their administrative remedies and that the Appeal Authority had ruled against them.

Checketts v Providence City, 2016 WL 4074004 (UT App. 7/29/2016)

In February 2011, the Monkton planning commission held its final public hearing on a new set of zoning regulations, which it called the Unified Planning Document (UPD). After approving the UPD, the planning commission presented it to the Monkton Select Board. After approving the UPD, the Select Board submitted it to the Monkton town clerk to be voted on at a special election by town residents, where it was approved. A landowner alleged that the new zoning regulations under the UPD interfered with his long-held development plans and reduced the potential economic return on his property in Monkton. Specifically, the landowner alleged that by increasing the minimum lot size from one acre to two and by increasing the lot frontage minimum, the UPD reduced the number of lots into which landowner can subdivide his property.

The court found that Monkton’s adoption of the UPD was a legislative enactment since: the UPD affected the entire Monkton community by generally detailing how the Town’s land may be developed, and it did not pertain specifically to landowner’s property; and the adoption of the UPD was not concerned with determining underlying facts. Because Monkton’s adoption of the UPD was a legislative enactment, the landowner could not assert a constitutionally protected property interest in the Town’s strict compliance with the statute concerning the adoption of zoning ordinances.

Finally, the landowner argued that he personally had a vested, constitutionally protected property interest in the 1978 regulations. The landowner argued that he “took substantial action in developing his property and preparing for subdivision, in reliance on the 1978 Regulations” and also “relied on the statutory requirement that he would be provided sufficient notice before adoption of any amendment to the 1978 Regulation.” However, the existing regulations at the time of the permit application were the UPD, and the court held that a permit application could not retroactively vest a right in prior regulations.

Gould v Town of Monkton, 2016 WL 4061878 (VT 7/29/2016)

Mark Zweber, an owner of a large parcel of undeveloped land, brought a section 1983 action against Scott County and Credit River Township, alleging that they had deprived him of his property without just compensation and violated his equal-protection rights. Zweber contacted County officials in April 2003 to develop a plan for the development of the parcel, which proposed to divide the parcel into 39 lots and 1 out lot. The district court concluded that it had subject-matter jurisdiction over Zweber’s action, but the court of appeals reversed. According to the court of appeals, the district court lacked jurisdiction because Zweber’s exclusive remedy was to seek a writ of certiorari from the court of appeals.

The court of appeals concluded that it, not the district court, would have exclusive jurisdiction over both of Zweber’s constitutional claims because the County’s decisions on the plat and re-subdivision applications were quasi-judicial and the constitutional claims are not “separate and distinct” from them. The court noted that the district court could review decisions that are legislative: decisions having broad applicability and affecting the rights of the public generally. Here, Zweber’s takings claim presupposed that the conditions placed on his plat application were valid, but alleged that they “constituted a taking for which he must be compensated.” Thus the takings claim did not require an examination into the validity of the County’s decisions because it actually assumes their validity.

Similarly, Zweber did not seek reversal or modification of the County’s quasi-judicial decisions in his equal protection claim, and Zweber’s constitutional claims could be adjudicated without inquiring into the validity of the County’s decisions. Accordingly, the court reversed the decision of the court of appeals and remanded the case to the district court.

Zweber v Credit River Township, 2016 WL 4051613 (MN 7/27/2016)

On April 1, 2016, the County issued a cease and desist letter to Plaintiff KO-ME, LLC, doing business as the Mile High Club (“Mile High”). The letter ordered that Mile High “cease and desist all adult entertainment activities no later than 5:00 p.m. Friday, April 8, 2016.” Mile High filed a complaint seeking a declaratory judgment  two recent County ordinances (CB-46-2010 and CB-56-2011) that restrict adult entertainment businesses were unconstitutional. Mile High purported to file the complaint on behalf of itself; “John Doe,” a representative patron of Mile High; and “Jane Doe,” a representative performer at Mile High. On May 24, an amended complaint was filed, which replaced as a plaintiff Jane Doe with Fantasia Hopkins, an “exotic dancer, who has danced at Mile High for approximately eight (8) years”.

Here, beyond conclusory statements, Plaintiffs made no demonstration that the zoning ordinances are motivated by unconstitutional considerations. Even though Defendant did not present evidence of its motivations either, in an Equal Protection challenge under rational basis review, the government need only demonstrate there is some legitimate justification that could have motivated the action. The court determined that Defendant made its showing under Fourth Circuit jurisprudence to satisfy the First Amendment’s requirement that the law advances a substantial governmental interest and consequently met the Equal Protection’s rational basis standard.

Ko-Me, LLC v Price George’s County, 2016 WL 3997317 (D. MD. 7/26/2016)

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