The Plaintiffs, Gary and Jennifer Hunter, owned property abutting a 100-foot undeveloped stretch of Jillian Court on the north. To the west of the Hunters’ property was 13 acres of undeveloped land which Defendant JAYSAC Company, LLC purchased in 2014. Prior to that purchase, the City of Highland Heights Planning and Zoning Committee voted to allow the 100-foot unpaved grass portion of Jillian Court “to be treated as a driveway unless there are more than two lots developed, in which case it would have to be developed as a public right-of-way according to the City’s subdivision regulations.”

The court found that use of the term “driveway” was an erroneous characterization, as the area in question remained an unpaved street. When Plaintiffs and their neighbors became upset with JAYSAC accessing its 13 acres by crossing the 100-foot unpaved section of Jillian Court, they filed open records requests and drafted a signed petition asking City officials to either create a cul-de-sac or other turnaround at the end of Jillian Court or leave it in its current grass form. In response, the City spent $9,369.69, and JAYSAC spent some of its own money, to extend the paved portion of Jillian Court by 10 feet, add a drainage area at the end of the street, remove bushes and trees, add dirt and level the unpaved portion of the street, plant grass, and place a temporary block at the end of the paved portion to prevent vehicles from driving on the freshly planted grass. The Plaintiffs then filed this action under 42 U.S.C.A. § 1983 alleging violations of the Fifth and Fourteenth Amendments, along with two Kentucky state law claims and a claim for declaratory relief.

Here, the original plat map for the subdivision indicated that this area was a City street. Even though City of Highland Heights employees referred to this area as a “driveway,” the record demonstrated that the City of Highland Heights maintained the stretch as an unpaved public street, which JAYSAC or any person was free to use. For the street to have been closed, the City would have had to bring an action under KRS 82.405. This action was never filed, nor did the City cut off access to the unpaved portion to create an informal closure. As such, a taking never took place. The Court then dismissed the remaining state law claims without prejudice. Hunter v. City of Highland Heights Jaysac Company, LLC, 2017 WL 1028568 (2017) Court of Appeals of Kentucky Holds Failure to Name Property Owner was a Fatal Omission to Complaint

In 2014, AT & T filed for permission to construct a cell phone tower in a neighborhood zoned as B–1 (Neighborhood Business). Pursuant to Kentucky Revised Statute (KRS) 100.9865(12), contiguous landowners and landowners within 500 feet of the proposed tower were duly notified of the application. The Hill ‘N Dale Neighborhood Association (of which Carlin Robbins and Rebecca Lutz are members) opposed the tower as inappropriate, unnecessary, and damaging to property values. The Planning Commission approved the cell tower application, and the Circuit Court affirmed. In this case, Robbins and Lutz appealed from the opinion and order of the Fayette Circuit Court dismissing their claim against the Lexington–Fayette Urban County Planning Commission and New Cingular Wireless, PCS, LLC d/b/a AT & T Mobility. Robbins and Lutz first contended that the circuit court erred in holding that KRS 100.987 did not provide for an independent grant of authority to appeal separate and apart from KRS 100.347. Here, Robbins and Lutz conceded that KRS 100.347(2) conferred jurisdiction and venue in Fayette Circuit Court but dispute that the procedural requirements of KRS 100.347(2) must be followed to vest jurisdiction, and that there were no procedural requirements set forth in KRS 100.987. Moreover, the court found that Robbins and Lutz were aware prior to or at the Planning Commission hearing of the property owner’s identity, yet they chose not to name the owner as a party to the complaint or appeal filed 30 days later. The court held that this omission was fatal to their cause of action.

Robbins and Lutz next argued that the trial court erred in not granting leave to amend their complaint to include the property owner. They cited CR 19.01 in support of this argument, but the court found that the civil rules did not apply in this type of litigation until after the appeal had been perfected. Here, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it was required to dismiss the appeal for want of jurisdiction. Accordingly, the order of the Fayette Circuit Court was affirmed.

Robbins v. Lexington-Fayette Urban County Planning Commission, 2017 WL 1034493 (2017)


Plaintiffs installed a privacy fence near the edge of the paved portion of Fox Hollow Road, which ran along the front of their property in the Town of Shandaken, Ulster County. For two years in a row, a snow plow operated by defendant Town of Shandaken allegedly damaged part of their fence, and plaintiffs commenced this action as a result. Plaintiffs asserted two causes of action, each alleging trespass and negligence related to the damage to the fence, and a third cause of action alleging that the Town widened Fox Hollow Road in 2010, taking their property without compensation and, in the process, altering the drainage that caused run-off from the road to contaminate their well. This case was an appeal from an order of the Supreme Court in Ulster County, which granted defendants’ motion for summary judgment dismissing the complaint. On appeal, Plaintiffs argued that the Town’s easement as limited to the width of the paved portion of Fox Hollow Road prior to the 2010 expansion because that is the only portion of the road that had been used by the Town for the statutory period of 10 years. However, the court noted that pursuant to Highway Law § 189, once a roadway is established as a highway by use, a town is permitted to maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Here, it was undisputed that plaintiffs’ fence and the widening of the roadway were within the three-rod width that defendants were statutorily authorized to open. Given that the Town was engaging in permissible uses of its easement, the court found no error in Supreme Court’s dismissal of the second cause of action.

On the third cause of action, the court held that the Supreme Court erred in granting defendants’ motion for summary judgment to the extent that it alleged a de facto taking based upon the contamination of plaintiffs’ well.  The court found that the record established that defendants proffered no proof and, accordingly, did not meet their initial burden concerning this claim.
Hoffman v. Town of Shandaken, 147 A.D.3d 1275 (3 Dept.2017)

After receiving an adverse decision by the Zoning Administrator for the City of Chesapeake, Boasso America Corporation appealed to the Board of Zoning Appeals. The Board of Zoning Appeals had a split vote, which resulted in affirmance of the Zoning Administrator’s decision. The Board of Zoning Appeals made its decision on April 23, 2015.  Boasso next sought to appeal the decision of the Board of Zoning Appeals by filing a petition for writ of certiorari, which it did on May 21, 2015, in the Circuit Court for the City of Chesapeake.

The court found that current case law was consistent with the understanding that that a litigant who appeals the judgment of a board of zoning appeals under Code § 15.2-2314 must identify the governing body as a necessary party in the petition, and must do so within 30 days of the board of zoning appeals’ final decision. Failure to comply with this provision would result in the circuit court lacking the discretion to permit amendment of the petition to add the governing body once the 30 days had passed. Additionally, the court found that if under these circumstances the circuit court was asked to dismiss the case for lack of a necessary party, the court must grant the motion. Accordingly, the court affirmed the judgment of the circuit court.

Boasso America Corporation v. Zoning Administrator of City of Chesapeake, 2017 WL 829688 (2017)

Petitioners, the Preservation Society of Newport County and Newport Catering, Inc., d/b/a Glorious Affairs, Ltd., sought review on certiorari of a decision of the respondent, the City Council of the City of Newport, which denied two applications for victualing licenses. In these applications, the petitioners proposed to sell pre-wrapped food prepared off-site, along with snacks and nonalcoholic drinks, at two historic mansions in Newport: the Elms Carriage House and the Marble House Chinese Tea House. On appeal, the petitioners argued that the Council impermissibly relied upon zoning considerations as its basis for denying their applications for victualing licenses. Additionally, petitioners argued that, pursuant to § 5.72.020 of the Code of Ordinances of the City of Newport, the Council was required to consider only health and safety issues in deciding whether to issue or deny the licenses.

Upon review of the record, the court found that neither the City Clerk’s denial letter to the petitioners nor the transcript of the hearing before the Council contained a statement of the reasons relied upon by the Council for its decision. The court determined that this failure to point to any meaningful evidence in the record relative to health and/or safety concerns was a violation of § 5.72.020 of the Newport Ordinances. Moreover, the record indicated that several members of that Council chose to focus on zoning concerns, which should not have impacted the Council’s decision-making. Accordingly, the petition for certiorari was granted, and the decision of the Council was quashed.

Preservation Society of Newport County v. City Council of City of Newport, WL 1015278 (2017)

Editor’s Note: This blog post was prepared by Devin De Frisco of Touro Law Center

Allegheny Tower Associates, LLC (Applicant), appeals the decision of the Zoning Hearing Board (ZHB) denying a special permit to construct a monopole communications tower. The ZHB technically denied the special exception application by a two-to-two vote because the proposed tower did not meet the standard in the zoning ordinance addressing issues related to traffic, safety, storm water management, and impact on the neighborhood. Applicant appealed to the trial court, which affirmed the ZHB decision.

In May 2015, the Applicant filed an application with the Zoning Hearing Board seeking a special exception to construct a 140-foot high monopole communications tower that would replace an existing 120-foot high tower in a Light Industrial District. Applicant presented evidence showing that its proposed tower would comply with every requirement of the zoning ordinance. Objectors testified in opposition stating that the tower would be much larger in diameter and this would have a negative impact to the value of the neighborhood and could be dangerous if it fell. The ZHB based its denial on the concerns of the objectors finding that the proposed use did not meet one standard required by the zoning ordinance.

Applicant argues that once it satisfies the burden by presenting evidence that the tower would comply with all the requirements, the burden then shifts to the objectors to show that the tower would be detrimental to the health and safety of the community. Applicant maintains that the objectors did not satisfy their burden because they produced no sufficient, credible evidence and instead relied on speculation and opinions. The ZHB’s decision did not clearly detail what it based its denial on, but the Court stated that it appears to be based on the factual findings from the objectors’ testimony. The Court noted that while the testimony of the objectors supported the ZHB’s findings, they cannot justify the denial of the special exception application.

The Court stated that “the law is clear that objectors cannot meet their burden by merely speculating as to possible harm.” The Court reinforced this point saying that “testimony based on specific past experiences could satisfy this burden, but bald assertions and personal opinions and speculation will not.” After reviewing the ZHB’s hearing transcripts the Court found that the objectors’ concerns were based on bald assertions, opinions, and speculation. Therefore, the objectors showed no high probability that the tower would have an adverse effect not normally produced by other commercial communication towers. The Court went on further to break apart the objectors’ testimony by showing they did not even attempt to substantiate the risk of the tower falling over onto a nearby gas station. While the burden is currently placed on the objectors, the Applicant testified with past experience to rebut the objectors’ speculative concerns. He explained that in the past 30 years none of the 200+ towers he built have fallen over. He further explained that their design considers the local area’s wind speed, but that it is also built to handle much higher wind speeds than those.

After analyzing each of the objectors’ points and finding they were all speculative or based on opinion, the Court found they could not meet their burden. Although the majority of this opinion focuses on poking holes in the objectors’ weak arguments, the Court mentioned that the objectors’ concerns seem to be “directed more at the language of the zoning ordinance, which permits a communications tower by special exception in the J-L District, rather than Applicant’s specific proposed use.” Since the testimony could not defeat the Applicant’s special exception application, the ZHB erred in its denial. The Court reversed the denial of the Applicant’s special exception application.

Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118 (Pa. Commw. Ct. 2017)


Editor’s Note: This summary was prepared by Shannon Q. Sullivan of Touro Law Center.

In 1998, Oregon voters approved the Oregon Medical Marijuana Act (OMMA), legalizing under state law the production and sale of marijuana for medical purposes. The OMMA was codified in ORS chapter 475B. In 2004, Oregon voters approved Ballot Measure 91, which legalized the production and sale of marijuana for recreational use under state law. Following the passage of Ballot Measure 91, the legislature adopted additional legislation enacting changes to both medical and recreational marijuana statutes. Ballot Measure 91 and the subsequent enactments were also codified in ORS chapter 475B.

The two statutes at issue in this case are ORS 475B.370 and ORS 475B.340. ORS 475B.370 establishes that marijuana is a “crop” as the term is used in various farming and agricultural statutes, including ORS 215.203, which authorizes local governments to adopt exclusive farm use zones and defines “farm use,” in part, as the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting, and selling crops. ORS 475B.340 authorizes local governments to adopt ordinances that impose “reasonable regulations” on business licenses to produce and process marijuana and sell marijuana wholesale or retail under Oregon’s recreational marijuana scheme. The statute defines the term “reasonable regulations” to include, among other things, reasonable limitations on where a premises for which a license or certificate for recreational marijuana production, processing, wholesale, or retail sale may be located.

Jackson County, Oregon approved two ordinances, Ordinance 2016-3 and Ordinance 2016-4, which are referred to together as “the ordinance.” The two ordinances are identical, except that Ordinance 2016-4 was enacted as an emergency ordinance of temporary duration and has been superseded by the permanent Ordinance 2016-3. The ordinance amended the county’s Land Development Ordinance (“LDO”), which regulates land use within the county, to include various regulations on marijuana-related land use. Among other changes, the ordinance established the types of land on which medical and recreational marijuana production would be allowed and on which types it would be prohibited. Section 2 of the ordinance, states that, as a result of the recent legislative enactments, recreational and medical marijuana production are considered a “farm use.” The Board of Commissioners found the Jackson County LDO did not allow a “farm use” to occur within the rural residential and rural use districts. The ordinance amended the LDO to allow marijuana production on lands zoned exclusive farm use (“EFU”), forest, and general and light industrial. Marijuana production was not authorized on land zoned rural residential, rural use, urban residential, and commercial.

Petitioner Sandra Diesel, a resident of Jackson County, argued against the ordinance before the Jackson County Board of Commissioners. After the Board of Commissioners adopted the ordinance, Petitioner appealed to the Land Use Board of Appeals (“LUBA”), arguing that the ordinance was unlawful because it conflicted with the County’s comprehensive plan. Additionally, Petitioner argued that the ordinance was invalid because it was not a “reasonable regulation” as described and authorized under ORS 475B.340. Specifically, she argued that the County had to demonstrate that it had a “substantial government interest” in adopting the regulation in order for it to be reasonable. LUBA ultimately rejected Petitioner’s arguments and affirmed the County’s adoption of the ordinances.

On appeal, Petitioner presented three arguments: First, that LUBA erred as a matter of law when it concluded that the ordinance did not conflict with the County’s comprehensive plan; Second, that LUBA erred when it concluded that the ordinance was a “reasonable regulation” authorized by ORS 475B.340; and Third, that LUBA made a mistaken interpretation of applicable law when determining what a “reasonable regulation” as applied to the facts existing in Jackson County. (Emphasis in original). The standard of review used by the court states that, on review, the court may reverse or remand a LUBA order only if it is “unlawful in substance or procedure,” “unconstitutional,” or “not supported by substantial evidence in the whole record as to facts found” by LUBA. ORS 197.850(9).

As to Petitioner’s first argument, that the ordinance’s prohibition of marijuana production on rural residential lands directly conflicted with the County’s comprehensive plan, which states that the purpose of rural residential land is to allow small-scale agriculture, the Court of Appeals disagrees, stating that the language cited by the Petitioner from the comprehensive plan is not one of requirement. The quoted paragraph by the Petitioner makes a broad descriptive statement, but does not instruct or require the County to take any particular action. The court states that even if the paragraph cited by the Petitioner were to be read as requiring the County to encourage a variety of types of agriculture in areas where residential development occurs, the County’s decision not to allow marijuana production on rural residential lands – a one particular type of agriculture –would not violate the command, because requiring the county to encourage a variety of type of agriculture is not the same as requiring the county to permit all types of agriculture. (Emphasis is original).

Petitioner’s second argument is that because the County did not make a finding in the ordinance declaring “[the] substantial government interest” the ordinance is supposed to promote, the County failed to sufficiently justify its decision not to authorize marijuana production on lands zoned rural residential, making that restriction invalid. Here, the court found that the Petitioner failed to cite authority that the County’s decision to prohibit marijuana production in some zoning districts, but not others, should be subject to heightened constitutional scrutiny. The County’s zoning decisions are authorized, both generally and specifically, but statutes that the Petitioner does not contend are unconstitutional or otherwise invalid, and thus Petitioner’s argument fails.

The third argument presented by Petitioner, not fully developed before LUBA, is that ordinance, at least as applied to the facts that exist in Jackson County, is unreasonable because, by making the overwhelming majority of grow sites in Jackson County illegal, the County has managed to effective eliminated grow sites in Jackson County. According to Petitioner, there are approximately 650,000 acres of land zoned for EFU, forest uses, and industrial uses. In 2015, of the 650,000 acres, only four properties zoned EFU were either sold or listed for sale. Petitioner contends that just because there is land eligible to grow marijuana does not mean that it is available to grow marijuana. (Emphasis in original). The court found that Petitioner failed to cite sufficient evidence to support her assertion that land is insufficiently available. The only evidence cited by the Petitioner was a letter that she herself had written to the Jackson County Board of Commissioners, stating that there were only four EFU-zoned properties sold or listed during 2015. The court found the Petitioner’s assertion said nothing about whether other land was available for rent or lease under some other agreement, not did it mention the availability of other lands zoned for the production of marijuana.

Diesel v. Jackson County, 284 Or.App. 301 (2017)

Editor’s note: This blog entry was authored by Andrew Fillipazzi of Touro Law Center.

Bethany Reformed Church owned property adjacent to the petitioner’s property, both of which are located within zoning district R-1B, zoned for single family medium density residencies. In the R-1B district, the principal permitted uses are single family detached dwelling and houses of worship. The Code of City of Albany § 357-63(A)(1), (2) defines a house of worship as “a structure or part of a structure used for worship or religious ceremonies.” The church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals. The church inquired whether it needed a use variance to establish the home base. The church’s counsel was informed that a use variance and/or special use permit would be required. Following the church’s application and public hearings by the Board of Zoning Appeals, the Board found that the “proposed use is consistent with mission and actions of a house of worship,” and that no additional zoning exemptions were necessary. Petitioner Sullivan filed an action to annul the Board’s determination. The Supreme Court granted the petitioner’s application, annulling the Board’s determination, and this appeal followed.

The Appellate Division stated that a zoning board’s interpretation of a zoning law is afforded great deference and will only be disturbed if it is irrational, unreasonable, or where there is an issue of pure legal interpretation of the underlying zoning law. The court found that none of these reasons were present here and the Board’s determination should be upheld. Furthermore, the court cited to prior decisions that held services to the homeless were judicially recognized as religious conduct and the acts of charity are an essential part of religious worship. The Court reversed the decision below and reinstated the decision of the Zoning Board of Appeals.

Sullivan v Board of Zoning Appeals City of Albany, 144 A.D.3d 1480 (NYAD 3 Dept. 11/23/2016), leave to appeal denied 2017 WL 1094771 (NY 3/23/2017)

Editor’s Note: The following appeared in the USDOJ Religious Freedom Focus Newsletter in December 2016.  It is available:

A federal court in New York entered a consent decree on November 23 resolving allegations by the United States that the City of Port Jervis, New York, violated a church’s rights under RLUIPA when it changed its zoning code to ban places of worship in two zoning districts where they were previously allowed as of right.  The order resolves a lawsuit brought by the United States in the U.S. District Court for the Southern District of New York after the Goodwill Evangelical Presbyterian Church entered into a contract to purchase property within one of those zones to use as a church.

Goodwill Church has a longstanding main location in Montgomery, New York.  In recent years, with a growing congregation, it opened two additional branches in New Paltz and Port Jervis.  Initially, its Port Jervis branch was operating out of a small rented space, which it had access to only on Sunday mornings.  Seeking a permanent and more appropriate space in the City’s downtown area, in mid-2015 the Church located a property in Port Jervis’s Central Business District, which permitted places of worship as of right.

As the Goodwill Church prepared to close on the property in November 2015, the city passed a law removing places of worship as permitted used in the Central Business District, as well as the City’s Service Commercial District.  The law, the United States alleged, was passed out of concern that the presence of the Goodwill Church, or other churches, could discourage commercial development, including discouraging establishments serving liquor due to a state law regulating the proximity of liquor serving establishments to places of worship and schools.

On November 21, 2016, the United States filed suit to enforce compliance with RLUIPA. The suit alleged that the zoning change imposed a “substantial burden” on the religious exercise of the Goodwill Church, and that the city violated RLUIPA Section 2(b)(1), which requires religious assemblies to be treated at least as well as nonreligious assemblies.  The commercial zones permit fraternal organizations and nonprofit membership clubs, preschools, day-care centers, and nursery schools, while excluding churches.

Under the consent order reached with the United States, the city is required to amend its zoning laws and regulations to repeal the ban on the use of property for places of worship in the two zoning districts at issue and to treat religious assemblies or institutions equally with nonreligious assemblies or institutions.  The consent decree also requires the city to provide training on the requirements of RLUIPA to certain city officials and officers, among other requirements.

Plaintiff Southwest Key, a corporate entity, sought to convert a former skilled nursing facility located in a residential zone into a custodial facility for up to 96 unaccompanied alien children (“UAC”). The UAC were taken into custody at the border by Immigration and Customs Enforcement (“ICE”) and subsequently transferred to custodial facilities by the Office of Refugee Resettlement (“ORR”) while awaiting resolution of their immigration proceedings. Southwest Key applied for a conditional use permit from Defendant for its proposed use of the facility, but the Planning Commission denied Plaintiff Southwest Key’s application for the conditional use permit. Plaintiff Southwest Key appealed the decision to the City Council, which affirmed the denial of the conditional use permit. In this case, Southwest Key alleged a violation of the Federal Fair Housing Act; the California Fair Employment and Housing Act; the Equal Protection Clause of the Fourteenth Amendment; and the Supremacy Clause of the United States Constitution.

Defendant first contended that the Federal Fair Housing Act (“FHA”) and California Fair Employment and Housing Act (“FEHA”) did not apply to Plaintiff Southwest Key’s custodial facilities because such facilities were not “dwellings” for FHA and FEHA purposes and the UAC were not willing participants. The court found that despite the fact that UAC were provided with education, health care, counseling, and other services at Plaintiff Southwest Key’s facilities until their legal status in the United States was resolved, did not make Plaintiff Southwest Key’s facilities akin to a university or boarding school. Instead, the court found that the main purpose of Plaintiff Southwest Key’s facilities was to detain the UAC after they were apprehended by federal authorities until their release from custody or removal from the United States. Despite this, the court found that there was a triable issue of material fact as to whether the facility was a dwelling under the FHA and FEHA. Thus, the Court denied summary judgment to Defendant on this claim.

Defendant next argued Plaintiff’s second claim should be dismissed because Plaintiff Southwest Key did not have standing to raise equal protection claims on behalf of the UAC. Here, Plaintiff Southwest Key was a corporation, not a member of a protected class, and the FAC did not allege that it had been deprived a right to equal protection other than a statement that the zoning decision hurt its mission. As a corporation, Plaintiff Southwest Key was not entitled to ignore zoning requirements for a non-conforming use. The court rejected Plaintiff Southwest Key’s argument that the UAC could not have filed their own suit due to financial burdens and lack of legal sophistication was belied by class action suits brought by UAC, and thus declined to find third party standing. However, based on its statement in the FAC that Defendant’s actions “hurt its mission,” the court allowed Plaintiff Southwest Key to proceed with its own equal protection claim.

As to the Supremacy Clause claim, the court noted that the federal government declined to assert federal preemption and referred to it as “jurisdiction” in correspondence with Plaintiff Southwest Key. As a result, the Court had reservations over Plaintiff Southwest Key’s expansive notion of field or conflict preemption for the facts of this case. While preemption is an issue of law, the court found that further development of the record would assist the Court in its decision on the Supremacy Clause claim. As such, the court allowed this claim to proceed to trial as well.

Southwest Key Programs, Inc. v City of Escondido, 2017 WL 1094001 (SD CA 3/24/2017)

Posted by: Patricia Salkin | March 30, 2017

Fed. Dist. Court in FL Invalidates Local Sign Ordinance

Editor’s Note:  This post originally appeared on the Rocky Mountain Sign Blog and is reposted with permission. The original post appears here:

A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code.  In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico.  The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:

  • The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
  • The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.

The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals that the café posted on a fence, a plastic panel affixed near a dog bowl that said “Paws for Water,” a sign along a white picket fence that read “No tiptoeing through our tulips,” a small display panel inside a planter that read “Sense of humor required,” and a decorative panel attached to the side of the restaurant that had giant flip-flops where guests could take photos.  The café was also cited for having an “additional parking” sign.

The café removed the local enforcement case to federal district court.

On cross motions for summary judgment, the court found against the town and in favor of the café.  The town argued that the café failed to exhaust its administrative remedies, but the court found that, because the challenge to the sign code was a facial challenge, the café did not need to exhaust administrative remedies.

In reviewing the sign code, the court found that the sign code was content based due to the message-oriented restrictions contained in the code.  Next, the court found that the code did not survive strict scrutiny because it was not narrowly tailored to the town’s proffered interests.  The court additionally found that, because it was unclear from the sign code whether the town would have enacted it without the disputed provisions, the code was not severable and was therefore struck down in its entirety.

Sweet Sage Café is yet another example of a local sign code that contains several familiar content based provisions that did not survive strict judicial scrutiny.  This case should provide further encouragement to local governments to review their sign codes for content based provisions and to make amendments accordingly.

Sweet Sage Café, LLC v. Town of North Redington Beach, No. 8:15–CV–2576–T–30JSS, 2017 WL 385756 (M.D. Fla. Jan. 27, 2016).

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