Plaintiff Vosse sued the City of New York alleging that her right to free speech was violated when she was fined, pursuant to the City’s Zoning Resolution, for affixing an illuminated peace symbol to the exterior frame of a seventeenth-floor window in her condominium unit on the Upper West Side of Manhattan. Previously, the Court held that the Plaintiff lacked standing to challenge the relevant regulations as content-based, but remanded to the district court to address whether the zoning regulations “constituted an unduly restrictive time, place, [or] manner restriction on speech.” Vosse v. City of New York, 594 F. App’x 52, 53 (2d Cir. 2015). On remand, the district court rejected Plaitoff’s argument that, even if the regulations are considered content-neutral, they still do not pass constitutional muster based on the manner of restriction. Vosse v. City of New York, 144 F. Supp. 3d 627 (S.D.N.Y. 2015).

The Circuit Court of Appeals affirmed finding that the content-neutral restriction on speech was  narrowly tailored to serve a significant government interest, namely the City’s interest in “maintaining an aesthetically pleasing cityscape and preserving neighborhood character;” and it left open ample alternative channels for communication, noting that the height restriction in the Zoning Resolution does not prohibit non-illuminated, non-commercial signs and both sides agreed that the Plaintiff was free to display the same sign in her window, as long as it is not illuminated.  The Court noted that while the Plaintiff argued that an unilluminated sign would be harder for passers-by to see at night, “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

Vosse v The City of New York, 2016 WL 6037372 (2nd Cir. CA 10/14/2016)

Posted by: Patricia Salkin | October 25, 2016

FL Appeals Court Finds Rezoning of Island Property was Not a Taking

Gordon and Molly Beyer purchased an undeveloped island in Monroe County for $70,000. At the time of purchase, the island was zoned “General Use,” which allowed one single-family home per acre. The property was just under nine acres. In 1986, the County adopted a Comprehensive Land Use Plan that downzoned the Beyers’ property to “Offshore Island,” allowing a new development density of one unit per ten acres. Since the Beyers’ property was less than ten acres, this 1986 Plan essentially eliminated their development possibilities. The 1986 Plan included an administrative process known as a “Beneficial Use Determination.” This process provided landowners with a means of challenging the Plan’s unconstitutional effects on property, but the administrative remedy was problematic because it only allowed for the minimum necessary relief to raise the value of the property to forty percent of its pre-regulation value. Further, the beneficial use provisions required property owners to attempt to sell their property for forty percent of its pre-regulation value before being eligible to apply for relief.

The Beyers, having exhausted their administrative remedy, brought an inverse condemnation action against the City, alleging that they “have been deprived of all or substantially all, reasonable economic use of the subject property.” The circuit court granted final summary judgment in favor of the City concluding that the statute of limitations had run on the Beyers’ taking claim, and the Beyers appealed. The court reversed and remanded, finding that the Beyers did not bring a facial taking challenge but rather an as-applied taking challenge for which the statute of limitations had not run. On remand, the circuit court again granted summary judgment in favor of the City and State on the ground that the Beyers failed to establish reasonable investment-backed expectations and, alternatively, under the laches doctrine, and the Beyers again appealed. The court concluded that the laches doctrine did not bar the Beyers’ claim, but nevertheless affirmed summary judgment on the basis that the Beyers failed to establish reasonable investment-backed expectations. The Beyers filed a timely motion for rehearing en banc.

Since the Beyers obtained a beneficial use determination that specifically considered the permitted economic uses of their property under the 2010 Plan, the court determined that inquiry into the economic impact was straightforward. According to the Special Master, “other than the Applicant being allowed to enter into the property to camp, there was absolutely no allowable use of the property under the City of Marathon Land Development Regulations.” In essence, the Beyers were required to leave their property in its natural state. As these were distinct property interests, the Beyers did not need to establish a vested right for there to be a taking that requires “full compensation.” Moreover, the court found the Beyers’ failure to provide evidence of their particular investment-backed expectations made summary judgment in favor the City appropriate.

In finding for the City, the court relied on the Special Master’s finding that the Beyers have “been adequately compensated by the issuance of 16 ROGO points.” Although it was not clear what the Special Master considered the points compensation for, if they were compensation in the takings context, the court found that the Constitution required not that the compensation merely be adequate, but that the compensation be “just”. However, the only evidence as to the valuation of these points in the record was from the beneficial use hearing. At the hearing, the Assistant City Attorney testified that a “two point ROGO dedication lot can generate anywhere from 25 to $40,000” but conceded that he was not a real estate expert and that this figure was arrived at anecdotally and not derived from any economic analysis of the current marketplace. Despite this ambiguity, the court affirmed the holding that the Beyers failed to establish reasonable investment-backed expectations.

Ganson v. City of Marathon, 2016 WL 5404070 (FL. App. 9/14/16)

In August 2014, the Bank applied for two variances from Minot zoning regulations for off-street parking after incorrectly calculating the size of an addition to its bank building. The Bank’s application sought to reduce the required number of off-street parking spaces for its building from 131 to 110 and to reduce the required width of each parking space from 10 to 9 feet. Sixteen Minot residents living near First Western Bank and Trust appealed from a judgment dismissing their appeal from a Minot City Council decision granting the Bank’s application for zoning variances. The residents argued the district court erred in ruling they lacked standing under N.D.C.C. § 40–47–12 to appeal the City Council’s decision granting the variances.

Under N.D.C.C. § 40–47–08, an appeal from an order by an administrative official to the board of adjustment “may be taken by any person aggrieved or by any officer, department, board, or bureau of the city” within the time prescribed by board rule by filing a notice of appeal specifying the grounds for appeal with the officer from whom the appeal is taken and with the board of adjustment. The language of N.D.C.C. § 40–47–12 authorized “the proper local authorities of the city” to “institute any appropriate action or proceeding” ostensibly to restrain, correct, or abate zoning violations if “any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or … used in violation of” N.D.C.C. ch. 40–47, or ordinances enacted under that chapter. Here the residents were not “proper local authorities of the city,” and they did not bring an action or proceeding to restrain, correct, or abate a zoning violation for “any building or structure … erected, constructed, reconstructed, altered, repaired, converted, or maintained or … used in violation” of N.D.C.C. ch. 40–47. Instead, the residents appealed a City Commission decision granting the Bank’s application for two variances. The residents’ appeal sought appellate review of a decision rendered by the City Council. Accordingly, the court concluded that N.D.C.C. § 40–47–12 did not apply to the residents’ appeal, and the district court erred in dismissing their appeal under that statute.

Section 40–47–08, N.D.C.C., authorizes “any person aggrieved” by a decision by a city administrative official charged with enforcement of an ordinance adopted under N.D.C.C. ch. 40–47 to appeal to a board of adjustment. The 1985 legislation specifically used the term “aggrieved applicant” to describe the entity statutorily authorized to appeal a board of adjustment decision to the governing body of the city. The term “person” used in N.D.C.C. § 40–47–08 for appeals to a board of adjustment was different from the term “applicant” used in N.D.C.C. § 40–47–11(1) for appeals to the governing body of a city. The court found that the legislature’s use of those different terms demonstrated an intention for a different meaning for the entities statutorily authorized to appeal variance decisions. The court construed the term applicant to mean the entity applying for a variance, and therefore concluded the residents were not “aggrieved applicants” under N.D.C.C. § 40–47–11. Moreover, despite the residents’ claim construing N.D.C.C. § 40–47–11 to deny them an appeal resulted in potential constitutional infirmities, the court noted that there was no constitutional right to an appeal. Accordingly, the district court’s holding in favor of the City was affirmed.

Schmidt v. City of Minot, 2016 WL 4536665 (ND 8/31/16)

Harold and Kathy Owens owned and operated a cattle and poultry farm on the Property prior to and following a 2001 amendment, which required a special exception permit for poultry. The Owens sold the Property to the Ethertons, who continued to operate the poultry and cattle farm. The Ethertons decided to sell the Property in January 2014; however, in June 2014, potential buyers Dale and Sherri Jones contracted to purchase the Property from the Ethertons for $850,000. In July 2014, Richard Gibson, the City’s Revenue and Zoning Officer, informed the Joneses that they would have to apply for a special exception in order to raise chickens on the Property. As a result, the Joneses became no longer interested in the Property, and the Ethertons released them from their contract.

In August and September 2014, the Ethertons met with City officials including Zoning Officer Gibson, Mayor Nick Jones, and members of the Rainsville City Council. During one meeting, Mayor Jones urged the Ethertons to themselves apply for a special exception; the Ethertons refused. The Ethertons filed a civil rights complaint against the City, Mayor Jones, Zoning Officer Gibson, and members of the Rainsville City Council, challenging the Zoning Officer Gibson’s determination that after the Ethertons sold the Property the new owners would need a special exception in order to continue as a poultry farm. They claimed that their non-conforming use of the Property was a “vested right” that was transferrable to their successors and could not “be divested without compensation”, and that if the new zoning ordinance would be enforced as to the new owners it would interfere with their attempts to sell the Property and force the Property into foreclosure. The district court dismissed all of the Ethertons’ claims.

As to the takings claim, the court found that the Ethertons’ failure to sell to two potential buyers did not suggest that the Property was rendered worthless, as the Ethertons’ farm provided them with “lawful income” and the Property could be sold in a foreclosure sale, albeit at a “considerable discount.” The court next rejected their equal protection claim on the grounds that the Ethertons’ Complaint did not contain sufficient allegations that the comparators, the Owenses, were similarly situated. Here, the Owenses owned the Property and operated a poultry farm upon it before the passage of the 2001 Ordinance. Moreover, the Complaint did not plausibly allege that the City’s different treatment of them was intentional, rather than the result of a mistake.

The due process claims were likewise rejected, as the challenged determination did not deprive the Ethertons of a constitutionally-protected interest in the Property, as it did not itself affect the Ethertons’ use of their property (it only required their successors to seek an exception to operate a poultry farm). Furthermore, to the extent that the determination burdened some cognizable right related to the Ethertons’ contract with the Joneses, the Ethertons could have sought a remedy by challenging Officer Gibson’s determination before the Zoning Board of Adjustment. Lastly, the court found that the individual defendants were entitled to qualified immunity, as these defendants were not alleged to have done anything other than perform discretionary functions of their offices; moreover, the Ethertons have failed to show that their constitutional rights were violated in any way, much less in a way that was clearly established at the time.

Etherton v. City of Rainsville, 2016 WL 5349206 (11th Cir CA 9/26/16)

This case arose out of Plaintiff’s attempt to rezone property in Effingham County. In 2003, Plaintiff Del-A-Rae, Inc. purchased over 700 acres in Effingham County, which was zoned AR-1 and restricted lot sizes to five acres or more. Plaintiff sought to rezone its property because it planned to develop a 350-lot subdivision, which included lots as small as a quarter of an acre. Pursuant to Effingham County policy in place at the time of Plaintiff’s rezoning request, an application for rezoning first went before the County’s zoning board, which granted the applications subject to a forty-foot buffer for future development. Between the first and second readings of the application, however, the Board and staff members added nine conditions. Notably, these new conditions included a half-acre lot-size restriction and prevented certain road access.

Upon learning about the additional conditions, Plaintiff appealed the decision to the Superior Court of Effingham County. The proceeding was apparently stayed because Plaintiff filed for bankruptcy, and on March 31, 2015, Plaintiff voluntarily dismissed its state-court complaint, and initiated this lawsuit on September 25, 2015. Plaintiff’s complaint asserted claims under 42 U.S.C. § 1983 and alleged that Defendants’ actions violated its procedural-due-process rights, violated its substantive-due-process rights, violated its equal-protection rights, and constituted a taking. Plaintiff later abandoned its substantive-due-process and takings claims, and conceded that Effingham County was the proper Defendant in this case. Accordingly, the only issues before the Court were whether Plaintiff’s procedural-due-process and equal-protection claims against the County could survive summary judgment.

The County contended that Plaintiff’s claims were time-barred because they were outside § 1983’s two-year statute of limitations. Plaintiff’s state-court complaint included a § 1983 claim and alleged that “Defendants deprived Plaintiff of rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and have diminished the value of Plaintiff’s property on a temporary or permanent basis.” Although the complaint did not specifically reference procedural due process or equal protection, it alleged a violation of Plaintiff’s Fourteenth Amendment rights, and its factual allegations were essentially the same as those pleaded in Plaintiff’s federal-court complaint. Thus, the court found that Plaintiff properly renewed this action, and the County’s motion for summary judgment on this issue was denied.

The County next argued that Plaintiff was entitled to only post-deprivation process and that state-law remedies adequately provided that process. The court noted that when a deprivation occurs because of state actors’ random and unauthorized actions, post-deprivation, state-law remedies may provide an aggrieved party all the process it is due. However, when state actors act pursuant to an established state procedure, post-deprivation remedies do not provide adequate process. Here, the court was unpersuaded that the County’s actions were random and unauthorized, and post-deprivation state-law remedies would not have provided Plaintiff the process it was due. The County conceded that its practice did not directly violate state law, so its actions were not unauthorized in that sense, but it implemented this policy as part of its delegated zoning authority. Accordingly, the court found that the County had a duty to ensure that its policy did not deprive applicants of property interests without due process. This deprivation, which took place under the authority of the County, therefore occurred as a result of an established state procedure.

Lastly, the court rejected Plaintiff’s class-of-one claim for lack of a similarly situated comparator. Plaintiff alleged that “The Hedges” was one such comparator, however with respect to the lot-size requirement, the Board approved a site plan for The Hedges that did not include lot sizes smaller than half an acre. As the approval of the site plan was binding on the developers, The Hedges could not have contained lot sizes smaller than half an acre. Moreover, because Plaintiff’s planned development was designed to contain roughly three times as many homes as The Hedges, the two projects would not have been essentially the same size and would not have had an equivalent impact on the community.

DEL-A-RAE v. Effingham County, CV 415-259, 2016 WL 5329610 (S.D. Ga. 9/21/2016)

Appellants Sue Karr, Harold H. McCall, James R. Webb, and Carol Ann White (collectively “appellants”) appealed the decision of the Circuit Court of the City of Richmond, which upheld the adoption of Permit(s) by Rule Regulation for the Construction and Operation of Small Wind Energy Projects (“the Regulations”) by the Virginia Department of Environmental Quality (“DEQ” or “the Department”) and approved by the Director of DEQ, David K. Paylor, pursuant to Code §§ 10.1–1197.5–1197.11. In its ruling, the circuit court also found that: DEQ complied with the statutory authority given to it pursuant to Code § 10.1–1197.6; because the term “wildlife” was ambiguous, DEQ’s interpretation of wildlife was to be given special weight; DEQ used its discretion appropriately and reasonably in its interpretation of the term “wildlife” as used in Code § 10.1–1197.6(B)(7); and DEQ used its discretion appropriately and reasonably in determining the appropriate triggers for the creation of mitigation plans.

DEQ first argued that the circuit court erred in overruling the plea in bar based on a failure of the appellants to comply with the 30–day notice requirement of Rule 2A:2(a). After DEQ promulgated the Regulations, the Rules of the Supreme Court of Virginia and the Code of Virginia were amended to clarify when the point of adoption occurs, thus creating the triggering event which begins the 30–day period to note an appeal. DEQ Director Paylor signed the Regulations on October 22, 2010, and one month later,, the Regulations were published in Register of Regulations with an effective date of December 22, 2010. On December 22, 2010, appellants filed their notice of appeal with DEQ. On May 23, 2011, the circuit court found “that the petition [sic] was filed within 30 days of publication of regulation.” The circuit court was correct as the notification of appeal was filed on December 22, 2010, which was thirty days after November 22, 2010, the date the Regulations were published in Register of Regulations. Therefore, the circuit court reasoned, the appellants properly noted their appeal under the first definition of “final adoption”

Regulation 9 VAC 15–40–10, DEQ defined “wildlife” as “wild animals; except however, that T&E insect species shall only be addressed as part of natural heritage resources and shall not be considered T&E wildlife.” Due to the lack of ambiguity in the regulation, the plain language controlled. The court concluded that “wildlife” as used in Code § 10.1–1197.6 referred all living things that were neither human nor domesticated; the mammals, birds, and fishes that were hunted by man for sport or food. Thus, the court found that the circuit court erred in concluding otherwise. It also found it was an error, as a matter of law, for the circuit court to give DEQ’s definition of the term “wildlife” greater weight; however, this error was harmless because the introductory phrase “where relevant” of Code § 10.1–1197.6(B)(7) directed DEQ to determine the relevant wildlife that would be impacted by the project. Additionally, DEQ had the subsequent authority under Code § 10.1–1197.6(B)(8) to determine what constituted a significant adverse impact to wildlife. Accordingly, the court held that the circuit court did not err in finding DEQ used its discretion appropriately and reasonably in its interpretation of the term “wildlife” as used in Code § 10.1–1197.6(B)(7) and in its determination of the appropriate triggers for the creation of mitigation plans.


Karr v. Virginia Dept. of Envtl. Quality, 789 S.E.2d 121 (Va. App. 2016)


This § 1983 action was brought in response to the City of Pittsburgh Department of Permits, Licenses and Inspections’ (“PLI”) issuance of a “Stop Work Order / Cease Operations” notice (“Order”) to Plaintiff South Allegheny Pittsburgh Restaurant Enterprises, LLC at its East Carson Street establishment Mother Fletcher’s. Mother Fletcher’s “Southside Party Joint” was billed by its proprietor as “the biggest and most out-of-control Under-21 party on this side of the United States,” but was shut down by PLI at the conclusion of its grand opening because it was not operating as a restaurant as permitted under the City’s Zoning Code—as it was offering only a “chip buffet” and “soft drink bar” to its patrons. Before the Court was a Motion for Temporary Restraining Order/Preliminary Injunction that was opposed by Defendants, the City of Pittsburgh, (the “City”) and PLI.

Plaintiff claimed that the Order was defective and issued improvidently under circumstances that did not constitute an emergency, as is allegedly required under the Zoning Code. The court found that Plaintiff had not met its high burden to avoid the finality rule because it initiated a federal lawsuit challenging a land-use decision by PLI a mere five days after it was rendered, without even attempting to invoke any formal procedures that were available under the City’s Zoning Code. In the City of Pittsburgh, the Zoning Board of Adjustment is the “primary controlling authority” tasked with hearing appeals, interpreting zoning ordinances and special exemptions and evaluating the uses that are authorized on the property. However, the decision challenged in this case had not been presented to the Zoning Board for a final ruling, as was required. The court therefore found that Plaintiff’s due process claims were premature and not likely to succeed on the merits.

Plaintiff next complained that the Order was issued without strict adherence to §§ 924.05.A. and B of the Zoning Code because there was no “emergency” situation at Mother Flecther’s at the time it was shutdown. However, the court noted that the Third Circuit held that the mere fact that local authorities strayed from established procedures did not produce a “mature constitutional injury” that was actionable without first obtaining a final decision from the local adjudicative body. Beyond the failure to appeal the Orderthe court determined that the due process claims were not yet ripe because Plaintiff never filed for a special exemption, variance or conditional use permit with the Zoning Board seeking to alter the use of the property to permit dancing as would be required if the property was properly designated as either a “restaurant (limited)” or “restaurant (general)” under the Code. The court also noted that even if it assumed that Mother Fletcher’s “soft drink bar” and “chip buffet” constituted a “restaurant” under the Code, Plaintiff would need approval of the Zoning Board to change the use of the property in order to permit dancing at that location. Accordingly, Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction was denied and the court sua sponte dismissed Plaintiff’s § 1983 due process claims.

Rest. Enterprises, LLC v. City of Pittsburgh, CV 16-1393, 2016 WL 4962926 (W.D. Pa. Sept. 16, 2016)


This appeal arose from a land use dispute between Jeffrey DePolo, a federally licensed amateur or “ham” radio enthusiast, and the Township of Tredyffrin. DePolo attempted to have the Township’s Zoning Hearing Board of Appeals (“ZHBA”) approve a 180-foot radio antenna tower on his property so that he could communicate with other ham radio operators around the world. The property was surrounded by mountains or hills, and he claimed a shorter tower would not allow him to reliably communicate with other ham radio operators. The ZHBA denied permission for a 180-foot tower, but agreed to a tower that was 65-feet tall. The ZHBA viewed that intermediate height as a reasonable accommodation under the applicable zoning ordinance.

DePolo did not appeal that decision to the Chester Court of Common Pleas as permitted under state law, but instead filed suit in the U.S. District Court for the Eastern District of Pennsylvania. He claimed that the Township’s zoning ordinance, which prohibited any building taller than 35-feet, was preempted as enacted and as applied under the applicable federal regulation, 47 C.F.R. § 97.15(b), and the closely related FCC declaratory ruling, known as PRB–1. The District Court granted motions to dismiss by the Township’s Board of Supervisors (“BOS”) and the ZHBA based upon its conclusion that the 65-foot variance offered by the ZHBA was a reasonable accommodation. The District Court also concluded that the Township’s zoning ordinance was not preempted by PRB–1.

The court noted that the ZHBA was a state administrative agency acting in a quasi-judicial capacity that resolved this dispute by issuing a written determination containing final findings of fact and conclusions of law. Even though DePolo was aggrieved by the ZHBA’s decision limiting the variance to 65-feet, he had adequate opportunity to litigate the matter beyond the ZHBA by appealing to the appropriate Court of Common Pleas within thirty days of the ZHBA’s decision. Rather than make this appeal, DePolo filed this suit in the District Court, and allowed the thirty-day appeal period under state law to expire. The court held this was fatal to his ability to obtain federal review of his claim. Here, DePolo withdrew his request for a variance before the ZHBA and then failed to challenge its factual findings or legal conclusions in the forum provided under state law. Accordingly, the court held that DePolo was bound by the final judgment of the ZHBA, as its ruling was a final judgment on the merits that was entitled to preclusive effect in federal court.

DePolo v. Bd. of Supervisors Tredyffrin Township, 15-2495, 2016 WL 4525228 (3d Cir. 8/20/30, 2016)

Tatiana Marchenko owned a single-family dwelling located at 122 Nicholl Lane in the Township’s R–1 Low Density Residential Zoning District. Michael Tripus, the Township’s zoning officer, issued Marchenko a Notice due to Marchenko’s use of the Property for commercial purposes, vacation rentals, in violation of section 402 of the Pocono Township Zoning Ordinance. The ZHB denied Marchenko’s appeal of a notice of violation, and the trial court affirmed.

Marchenko used the Property as her primary residence, resided at the Property a majority of the time, and was the only family occupying the Property when she resided there. The ZHB did not address Marchenko’s personal use of the Property, concluding only that Marchenko’s rental activity, wherein only one family occupies the Property at a time, was prohibited in the R-1 District. However, the Ordinance’s definition of “single-family dwelling” did not prohibit this type of rental activity, nor was the rental activity encompassed by any other use defined by the Ordinance. Under these circumstances, the court found the ZHB should have broadly interpreted the term “single-family dwelling” to allow this rental activity rather than straining to designate the activity as a prohibited lodge use, which the Ordinance did not define. Therefore, the ZHB erred in concluding that Marchenko’s short-term rentals of the Property were prohibited in the R-1 District.

Next, Marchenko argued that the ZHB erred in concluding that her short-term rentals of the Property constituted use as a lodge, which was not permitted in the R-1 District. Here, the ZHB concluded that three definitions of “lodge” in the Merriam-Webster Online Dictionary accurately described Marchenko’s rentals of the Property. The Ordinance used the term “lodge” as a noun, citing it as an example of a transient dwelling accommodation. The cited definition of lodge as a noun, “a house or hotel in the country or mountains for people who are doing some outdoor activity,” was inapplicable, because the ZHB did not find that Marchenko’s renters use the Property as a base for outdoor activities. Additionally, this definition indicated that providing short-term accommodations was the purpose of a lodge. Instead, Marchenko used the Property as her primary residence and rented it out a minority of the time in order to defray her housing expenses. Therefore, the court reversed, finding the ZHB erred in concluding that Marchenko’s short-term rentals of the Property constituted use as a lodge.

Marchenko v. Zoning Hrg. Bd. of Pocono Township, 2021 C.D. 2015, 2016 WL 4978459 (Pa. Cmmw. 9/19/2016)

If Election Day 2016 was not interesting enough, voters in parts of Vermont will be casting ballots yea or nay for a controversial proposed wind project.  But can their votes be bought?  Apparently so, according to the Vermont AG reports the New York Times here:

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