The following information is excerpted from the NYS Department of State’s Office of Renewable Energy Siting website:

On April 3, 2020, New York State enacted the Accelerated Renewable Energy Growth and Community Benefit Act (the Act), landmark legislation aimed at improving the siting and construction of large-scale renewable energy projects in an environmentally responsible and cost-effective manner. The Act establishes the first-of-its-kind Office of Renewable Energy Siting, housed within the Department of State, which will consolidate the environmental review of major renewable energy facilities and provide a single forum to ensure that siting decisions are predictable, responsible, and delivered in a timely manner along with opportunities for input from local communities.  

All large-scale, renewable energy projects 25 megawatts or larger will be required to obtain a siting permit from the Office of Renewable Energy Siting for new construction or expansion. Projects already in the initial phases of the current Article 10 siting process through the State’s Siting Board may remain in Article 10 or opt to transfer into the new siting process. New projects sized between 20 and 25 megawatts may also elect to apply for a siting permit. The Office of Renewable Energy Siting has the authority to issue a single permit for the construction of major renewable energy facilities from both a state and local law perspective, but applicants will still be required to obtain any approvals necessary under federal law, including federally-delegated permits.

The Office of Renewable Energy Siting has 60 days from the date of its receipt of a permit application to make a completeness determination. An application will not be complete without proof of consultation with the host municipalities and communities. After a completeness determination, draft permit conditions will be issued by the Office of Renewable Energy Siting for public comment. Within the established comment period, the host municipalities must submit a statement indicating whether the proposed renewable energy facility complies with applicable local laws. The Office of Renewable Energy Siting must issue a final decision on the siting permit within one year of the date on which the application is deemed complete and within 6 months if the facility is proposed to be located on brownfield, former commercial or industrial, landfill, former power plant, and abandoned or underutilized sites.

Within one year of the Act’s passage, the Office of Renewable Energy Siting is required to promulgate regulations to implement the Accelerated Renewable Energy Growth and Community Benefit Act. 
On September 16, 2020, the Office of Renewable Energy Siting issued draft regulations and uniform standards and conditions for public comment pursuant to the State Administrative Procedure Act (SAPA).  

The draft regulations, and draft uniform standards and conditions are available here:  

As part of the State’s ongoing commitment to community engagement, the Office of Renewable Energy Siting will seek public comment on the draft uniform standards and conditions Chapter XVIII Title 19 (Subpart 900-6), through public hearings across the state, while complying with public health and safety guidelines due to the circumstances presented by the COVID-19 pandemic. To find more information on the public hearings, click here

All stakeholders and the public have an opportunity to formally submit comments on the draft regulations Chapter XVIII Title 19 (Subparts 900-1 – 900-5; 900-7 – 900-15), and the draft uniform standards and conditions, Chapter XVIII Title 19 (Subpart 900-6), until December 7, 2020. The original deadline to submit comments on the draft regulations, Chapter XVIII Title 19 (Subparts 900-1 – 900-5; 900-7 – 900-15), was November 16, 2020; the Office of Renewable Energy Siting has extended this public comment period until December 7, 2020.

Stayed tuned for more updates at the start of 2021.

This post is initially appeared in the Municipal Minute Blog by Ancel Glink and is reposted with permission.

An Illinois Appellate Court recently upheld the dismissal of a complaint against a municipality, finding that the landowner had no lawfully vested right and that his regulatory takings claim was precluded by a claim that had already been litigated in federal court. Storey v. City of Alton.

In 1999, Michael Storey bought property in Alton in order to develop it into a mobile home development. The property was annexed into the City by a 1986 pre-annexation agreement. Storey claims the annexation agreement provided for rezoning of the land to allow for the placement of manufactured homes and that he would be entitled to subdivide the property.

Storey sought to subdivide the property and submitted a request to the City for approval in 2008, which the City denied, at least in part because the available water supply did not meet fire safety standards. Five years later, Storey submitted two proposed plats of subdivision , but the City notified him that they were defective due to various problems and omissions related to the application.

After the City’s denial of the proposed subdivision, Storey filed a lawsuit against the City in federal court claiming that the City had used its position to prevent him from subdividing his property under false pretenses, and that the City continuously cited him for ordinance violations while allowing his neighbors to violate the same City ordinances. The federal court ruled in favor of the City, finding that Storey’s equal protection and state law claims were brought too late and were barred by the statute of limitations. The federal court also found that law enforcement officials are entitled to a great deal of discretion in how they choose to prosecute offenses, so it rejected Storey’s equal protection claim that every ordinance violation or criminal act has to be prosecuted. Storey appealed to the Seventh Circuit, which upheld the federal court’s decision. On June 11, 2018, the United States Supreme Court refused to hear his appeal.

A year later, Storey filed a complaint in state court, based on the same factual allegations. The trial court dismissed that complaint and Storey appealed.

On appeal, the Appellate Court also ruled in the City’s favor. The Court reasoned that because there was currently no proposed plat pending with the City for the development of his property, his request for an order to approve a plat (mandamus relief) was not ripe for review and any opinion by the court would be advisory at best. The Court also found that the mandamus action was time barred.

In addition, the Court rejected Storey’s argument that his regulatory takings claim was different from the equal protection claim he had brought in federal court, finding that the underlying transaction or events for each of the claims were identical—both claims sought to challenge the City’s denial of his proposed subdivision plat based on the lack of a water supply to the property. As a result, the Court held that Storey could not relitigate the same issue in state court that he had lost in the federal court.

Storey v City of Alton, 2020 IL App (5th) 200065-U (IL App. 11/23/2020)

This post originally appeared on Otten Johnson’s the Rocky Mountain Sign Law Blog and is reposted with permission.

Simi Valley, California, like many cities, bans mobile advertising displays on public streets.  It also, however, exempts certain authorized vehicles from the general ban.  The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.

A mobile billboard roaming the streets. Source: Wikimedia Commons, SammySosaa

Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation.  Following that conclusion, it returned the case to the district court for further proceedings to determine whether the provision could survive strict scrutiny.

The Ninth Circuit’s opinion is relatively light on facts, but we know this:  Simi Valley’s ordinance prohibits the parking or standing of “mobile billboard advertising display[s] on any public street, alley or public lands in the City.”  A “mobile billboard advertising display” is defined with respect to state law, and is “an advertising display that is attached to a mobile, nonmotorized vehicle, device, or bicycle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising.”  Simi Valley’s general ban on these displays exempts emergency vehicles and vehicles used “for construction, repair or maintenance of public or private property.”  Mr. Boyer found himself on the receiving end of this ban and sued.

While the district court considered the ban content-neutral and its authorized-vehicle exception unremarkable, the Ninth Circuit took issue with that exception.  It agreed that the ban itself was content neutral.  The appeals court struggled, however, to identify how the speaker preference for authorized vehicles could be justified without reference to content, and the city failed to offer much of an argument.  The panel therefore concluded that the city had adopted the exception as a way to spread messages consistent with the city’s aims—a content-based decision.  What’s more, the court concluded that the messages on authorized vehicles were not (all) government speech because Simi Valley didn’t limit the ordinance’s exemption to governmental messages.  It’s not clear why the panel chose not to address the ordinance as a restriction on commercial speech given its application to “advertising.”

In the end, because it concluded the ordinance was content-based, and because the parties hadn’t presented arguments as to whether the ordinance could satisfy strict scrutiny, the Ninth Circuit remanded the case to the district court to explore that issue.

Boyer v. City of Simi Valley, 978 F.3d 618, 620 (9th Cir. 2020)

This post originally appeared on Otten Johnson’s Rocky Mountain Sign Law Blog and is reposted with permission.

In a victory for plaintiff B&G Opa Holdings’s “Klub 24,” a federal district court recently struck down an ordinance used to shutter a strip club that briefly opened in a suburb north of Miami.  Three months after an Opa-locka, Florida licensing clerk stamped “approve” on B&G’s application for a “playhouse,” the city returned to shut down the operation.  Opa-locka explained that it had failed to run that use through its adult-entertainment special use permitting scheme and that Klub 24 was therefore operating without a license.

Klub 24’s Chained Doors Following City Shut-Down. Source: Miami Times

Litigation followed.  Adopting the magistrate’s recommendation, the district court granted summary judgment on B&G’s claims that the city’s ordinance unconstitutionally prohibited all adult-entertainment uses and also gave the city too much discretion to prohibit such uses.

In what appears to have been some administrative bungling—and perhaps some misdirection from B&G—the city first allowed Klub 24 as an “other club” in January 2018.  When it became clear that Klub 24 was in fact a strip club, consternation followed, and the city put the kibosh on the operation in April 2018.  Per Opa-locka ordinance, adult entertainment uses were required (1) to be located in a “transit corridor” zone district and (2) to hold a special use permit.  Trouble ensued when B&G pointed out that the “transit corridor” zone district did not in fact exist.

B&G’s litigation asserted numerous constitutional claims, among them the ones noted above as well as assertions that Opa-locka’s definitions of adult entertainment were vague and overbroad, and also that its sign code was unconstitutional.  With respect to the vagueness and overbreadth challenges, and in the interest of maintaining at least some degree of decorum, it suffices to say that the city’s definitions of adult entertainment and sexual activities were… adequately detailed.  B&G’s sign code challenge likewise seemed likely to prevail given the code’s many content-based distinctions and the substantial discretion it afforded regarding sign approval.  In an unusual turn, however, the court denied summary judgment on the ground that factual disputes existed about whether B&G had misrepresented its operation and therefore arrived with unclean hands.

On the more substantial claims regarding the core of B&G’s use, the club prevailed.  First, because Opa-locka’s limited adult entertainment uses to a zone district did not exist, the city unconstitutionally failed to provide adequate sites for such businesses under the Supreme Court’s decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).  Second, the court concluded that Opa-locka’s special use criteria gave the city unconstitutionally expansive discretion to prohibit adult entertainment uses.  While those special use criteria would appear unremarkable to any land use practitioner, they were not “precise and objective.”  The city’s code also failed to specify a timeframe for a decision and was therefore unconstitutional in that regard as well.

B&G Opa Holdings, Inc v City of Opa-Locka, 2020 WL 5822312 (S.D. FL 9/11/2020)

This post was authored by Amy Lavine, Esq.

In Condominium Bd. of Mgrs. of Tribeca Summit v 415 PR LLC, a New York appellate court determined that a public parking garage was permitted under the applicable zoning regulations. Before it was purchased by the defendants in 2013, the garage had been used as an “accessory” parking facility solely for residents of the condominium. The zoning regulations were also amended in 2013, however, and public parking became a permissible use in garages that had previously been limited to residential accessory parking. As the court noted, “Specifically, ZR 13-21 provides that, “All accessory off-street parking spaces may be made available for public use.” This section unambiguously applies to accessory parking facilities such as the one owned and operated by defendants….” The condominium claimed that a different section of the ordinance applied, because the garage was “developed” prior to the adoption of the zoning changes, but even if this was a proper interpretation of “development,” the defendants applied for and received approval from the Department of Consumer Affairs in 2014 for the proposed public parking. Moreover, because public parking was a “purpose permitted by Law,” there was no basis to find that the garage was in breach of the condominium’s bylaws.

Condominium Bd. of Mgrs. of Tribeca Summit v 415 PR LLC, 2020 NY Slip Op 07312 (NY App Div 1st Dept 12/8/20).

This post was authored by Zoe Ferguson, JD

A New Jersey zoning ordinance did not violate the Fair Housing Amendments Act (FHAA) in excluding assisted living facilities from a single-family district but explicitly allowing them as of right only in one different district, the Third Circuit held in October. The court reversed the District Court’s previous ruling, which had granted a preliminary injunction blocking enforcement of the ordinance, finding that the ordinance did not constitute facial discrimination against the elderly.

Two developers, 431 East Palisade Avenue Real Estate LLC and 7 North Woodland Street LLC, sought to build a 150-bed assisted living facility in the city of Englewood, New Jersey to serve memory impaired patients in a residential district labeled a “one-family residence district,” or R-AAA zone, under the city’s zoning ordinance.

The city zoning ordinance does not expressly prohibit or discriminate against disabled or elderly people in the R-AAA zone, but it allows assisted living facilities to be built as of right only in one district, the “Research, Industrial, Medical (RIM) District.” To build an assisted living facility outside the RIM zone, a developer would need a use variance.

Under the FHAA, it is unlawful “to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or the provision of services or facilities in connection with such dwelling, because of a handicap of […] (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available […].” The FHAA defines a “handicap” as “a physical or mental impairment which substantially limits one or more of [a] person’s major life activities.”

The developers sought a preliminary injunction barring enforcement of the ordinance against their facility, arguing that the ordinance was facially discriminatory. They brought a disparate treatment claim under the FHAA, claiming the ordinance intentionally discriminated against people with handicaps because it impliedly prohibited any developer from building a living facility for elderly people in the R-AAA zone.

The District Court granted the preliminary injunction, agreeing that the ordinance was facially discriminatory because it expressly allowed assisted living facilities only in the RIM zone and therefore effectively excluded them from residential zones.

The Third Circuit reversed, holding that the ordinance did not violate the FHAA for two reasons: first, the ordinance does not identify assisted living facilities on its face in the relevant R-AAA section, and second, allowing the facilities in the RIM zone as of right does not make the ordinance facially discriminatory.

Though the Third Circuit was “not entirely persuaded” that an assisted living facility “necessarily” refers to a facility covered by the FHAA, the court said that even if it does, “the mere fact that some general terms in the ordinance operate to disallow assisted living facilities and other terms expressly permit assisted living facilities as of right in another district, does not transform the ordinance into one that discriminates on its face.”

The court explained that the developers had not shown the required intent for facial discrimination under the FHAA—that the restriction on development is “because of” discrimination—because they found “no indication that disabled status […] is the dispositive trait, singled out for different treatment.” Id.

Reversing the District Court’s grant of a preliminary injunction, the Third Circuit suggested that the developers might have found success had they chosen a different path: while their claim that the restrictions made it practically impossible to operate their business in the R-AAA zone did not meet the disparate treatment standard, it was “more in line with a disparate impact claim.”

431 East Palisade Avenue Real Estate, LLC v. City of Englewood, 977 F. 3d 277 (3rd Cir CA 2020).

This post was authored by Matthew Loescher, Esq.

Eureka Building, Inc. filed two applications to rezone a vacant 1.2-acre parcel in the City of Troy from “One Family Residential” to “One Family Attached Residential” for a townhouse development project. These applications would allow Eureka to build ten townhouses on the parcel instead of the then maximum of four. Eureka’s first application was a “conditional” rezoning application, which offered certain voluntary conditions as part of the request. The second application was a “straight” or “traditional” rezoning application, which did not attach any conditions beyond simple rezoning. The Troy City Council denied both applications, and Eureka filed this action against the City.

 At the outset, the court noted that Eureka could not plausibly allege that it had any property interest in rezoning approval because Michigan law and the Troy Zoning Ordinance granted total discretion to the City Council to approve or reject a rezoning request. As such, Eureka could not plausibly allege a constitutionally protected property or liberty interest to state the first element of a substantive due process claim.

The court further found that even if the law permitted Eureka to allege a freestanding claim without a constitutionally protected property interest, Eureka’s complaint did not allege any conduct by the Troy City Council that would plausibly “shock the conscience.” Moreover, undisputed public records prevented Eureka from plausibly alleging that the Troy City Council’s decision was arbitrary and capricious. These undisputed public records indicated that Troy City Council members denied both of Eureka’s rezoning applications for a variety of reasons based on public health, safety, and welfare, consistent with their authority under the city zoning ordinance. Accordingly, the court granted the City of Troy’s motion to dismiss.

 Eureka Building, Inc v City of Troy, 2020 WL 6887373 (ED MI 11/24/2020)

This post was authored by Georgia Reid, Touro Law Center

Mike Bickers, a property owner in Terre Haute, Indiana, was denied a special use permit to operate an adult business.  Bickers sued the City of Terre Haute Board of Zoning Appeals (“BZA”), the members of the BZA, and the City of Terre Haute, challenging the zoning and licensing scheme that regulates the permitted locations of adult businesses.  Bickers then moved for a preliminary injunction.  The District Court granted the motion, because, it held, the permit scheme controlling adult businesses seeking to operate in Terre Haute confers “unfettered discretion on the City and lacks time limits for decision[s].”  The Court found that the zoning ordinance was an over-broad time, place, and manner regulation, and an arbitrary prior restraint.

A preliminary injunction is a legal remedy that must meet a three-pronged test.  A plaintiff must show (1) that he will suffer irreparable harm absent preliminary relief; (2) that traditional legal remedies are inadequate; and (3) that he has some likelihood of success on the merits.  The district court in this case found that Bickers satisfied each element of this test, with the bulk of the Court’s analysis on the third prong.  In relation to the third prong, he Court analyzed the merits of the facial challenge to the zoning ordinance. 

The Court stated that licensing regulations are time, place, and manner restrictions that limit the First Amendment right to freedom of expression.  A time, place, and manner regulation is subject to intermediate scrutiny.  The law must meet a three pronged test: it must (1) serve a substantial governmental interest, (2) be narrowly tailored to serve that interest, and (3) allow for reasonable alternative avenues of communication.  The Court held that Bickers had persuasive arguments on his facial challenge that the zoning ordinance and licensing scheme were unconstitutional. 

The Court found that the denial of Bicker’s application was arbitrary and was not narrowly tailored to serve any objective, legitimate government interest. The ordinance amounted to a prior restraint because it granted the BZA unfettered discretion in deciding whether to grant or deny a special use.  Any licensing scheme must bound the government’s discretion using  narrow, objective, and definite standards.  These standards were lacking in this case.  The BZA claimed they denied the permit due to a mistake on Bicker’s application, but the Court found that BZA did not show a reason, other than the opinions of citizens, to deny Bickers a special use permit.  Thus, the BZA was disfavoring his speech arbitrarily, based on subjective criteria. 

Bickers said the ordinance operated as an illegal prior restraint because it did not place a time limit on the BZA’s decision. The Court agreed with this as well and found this was unconstitutional.  Additionally, Bickers argued the ordinance did not leave any alternative avenues for communication for his expression.  The Court agreed that this was entirely plausible. Finally, Bickers argued that Terre Haute’s requirement that adult businesses obtain a second permit from the City’s Board of Public Works also amounted to a prior restraint.   

The factual and procedural background to this case highlights how essential it is that zoning board decisions are not arbitrary, and decisions are not based on unfettered discretion.  If the city wanted to restrict adult businesses, then it needed to do so in a way that was based on narrow and objective standards.  Many citizens of the town, parents, a pastor, and businesses did not want Bickers to open up this strip club.  The zoning ordinance was open-ended, leaving decisions to be based on subjective criteria.  In order to constitutionally restrict adult businesses, a more objective, evidence-based approach would better serve the town of Terre Haute in the future.  Otherwise, the City is essentially asking the Court to presume that it is acting in “good faith” and not simply denying permits in order to suppress the content of adult businesses’ speech. 

Bickers V. Saavedra, et al., 2020 WL 6905310 (S.D. Ind. 11/24/2020).

This post was authored by Matthew Loescher, Esq.

In this case, Darren Powlette appealed from a judgment of the Montgomery County Court of Common Pleas, which affirmed an adjudication order of the Board of Building Appeals (“BBA”). The adjudication order upheld the Montgomery County Building Regulation Division’s (“MCBRD”) stop work order addressed to a barn on Powlette’s property.

 Powlette first claimed that since his property received an agricultural exemption, the MCBRD lacked authority to issue the stop work order pursuant to the Ohio Building Code. Powlette further argued that he “is using the structure in a manner that is incident to an agricultural use of the land on which the structure is located,” and that he “uses the barn for hay storage throughout the year.” According to MCBRD, the evidence established that the structure at issue was not being used exclusively for agriculture, but was being used for public assembly purposes as well. Thus, the court found that this multi-purpose use did not grant complete exemption from the Ohio Building Code.

 The court next held that the barn could not retain its agricultural exemption under these circumstances, given the issues of fire safety and life safety for the attendees of the events in the barn. Specifically, the barn was a nuisance, and when MCBRD became aware of the nature of its use it issued the stop work order and essentially negated the exemption. The court found that the trial court did not err in affirming the BBA’s determination that Powlette could not escape application of the Ohio Building Code to his barn, since it was an assembly occupancy and was clearly promoted as such. Accordingly, Powlette’s first assignment of error was overruled.

Alex Carlson, a Township zoning department employee, stated that Powlette submitted a site plan that was not complete. After reviewing the nature of the structure, it was discovered that the property was not designed primarily as a barn. Instead, Wyckoff stated that Powlette represented that the barn was agriculturally exempt, and that MCBRD had no duty to inspect the barn unless a permit was issued for its construction pursuant to the Ohio Building Code. Accordingly, the trial court did not err or abuse its discretion in concluding that Powlette’s estoppel argument was without merit and that MCBRD was not estopped from issuing the stop work order after being made aware of the true nature of the building, The judgment of the trial court was therefore affirmed.

Powlette v Board of Building Appeals City of Dayton, 2020 WL 6817066 (OH App. 11/20/2020)

This post was authored by Chirstine Velia, Touro Law Center

Complaint Women’s Elevated Sober Living LLC operates a sober living home under an arrangement with Constance Swanston (a/k/a Swanson).  Swanston leases property to Elevated, serves as a member of the organization, and works to operate the home.  Since opening, the sober home housed fifteen to nineteen unrelated individuals.  Under a municipal zoning ordinance, the City of Plano limits the number of unrelated disabled persons who may live in a single-family dwelling located in a residential neighborhood to eight.  Plano informed Elevated that they were violating zoning restrictions. On Elevated’s behalf, Swanston applied for a variance for a reasonable accommodation to allow up to fifteen unrelated disabled persons to live in the home.  The Plano Board of Adjustments denied the variance request after a public hearing.  Swanston and Elevated filed a complaint under the Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“ADA”).  Plano subsequently filed a Motion for Summary Judgement, maintaining that Swanston had no individual claims for relief under either the FHA or ADA as a matter of law.

To demonstrate constitutional standing, Swanston must have suffered an injury-in-fact, that is fairly traceable to the challenged conduct of the defendant and that is likely to be redressed by a favorable judicial decision.  In addition, under the FHA Swanston must also show that her interests fall within the zone of interests protected by the law invoked. The court held that the defendant failed to meet its summary-judgment burden as to Swanston’s FHA and ADA claims.  Federal courts have held that the expenditure of time, cost, and effort confers both FHA and ADA standing on an individual such as Swanston.  Swanston satisfied both tests because she personally spends 20 hours a week or more working with the residents of the sober home directly and working on Elevated’s business.  In addition, Swanston herself prepared and filed the Request for Accommodation.  Because Swanston is a provider of housing and services to residents the FHA designated as disabled, she has standing to sue for injunctive relief to prevent Plano’s ordinance from taking effect and these injuries in fact clearly place Swanston in the zone of interest.  Under the ADA, the Court found Swanston to fall within the zone of interests protected by the statute due to her relationship or association with the provision of services to the disabled.  The Defendant’s Motion for Summary Judgement on Plaintiff’s Claims was denied.

Swanson v. City of Plano, 2020 WL 6799173 (E.D. Tex. 11/19/2020)

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