This post was authored by Edward Sullivan, Esq.

San Francisco SRO Hotel Coalition v. City and County of San Francisco, No. A151847 (Cal. App., 1st Dist., October 15, 2018) involved a takings claim under the California Constitution arising out of a 2017 amendment to the City’s Administrative Code that required that there be a minimum term of 32 days for hotel stays in single room occupancy (SRO) hotels. The Code had already been amended to prohibit SRO rentals of less than seven days and the 32 day minimum term would now bring into play the City’s rent control laws. The appellate court noted that an SRO is a small hotel room that typically lacks a private kitchen or bathroom, similar to a college dormitory room. Many low-income, elderly and disabled persons reside in SROs throughout the City. The City sought to preserve these hotels to prevent more “rough sleeping” in City streets and public places and had adopted a moratorium on conversion of SROs to tourist hotel housing in 1979 and adopted further permanent legislation in 1981 to make it economically difficult to make such conversions.  However, tenant protections at that time extended only to those renting for 32 days or more.

Plaintiffs, an association and individual hotel owners, sought invalidation of the amendment and sought review of the trial court’s denial of a preliminary injunction.  Among other allegations, certain Plaintiffs contended that the amendments amounted to a taking because they foreclosed rentals of seven to thirty-one days, which had previously been permitted as a lawful land use, and violated the Due Process and Equal Protection Clauses and sought declaratory and injunctive relief under the Federal Civil Rights Act.  Plaintiffs argued that by requiring SROs to be offered for an initial rental period of at least 32 days, the City was effectively forcing them out of the hotel business and into the landlord/tenant business, “subject to the onerous requirements of the Rent Ordinance, including eviction controls.”  The trial court denied the preliminary injunction finding no deprivation of a vested right and concluding Plaintiffs were unlikely to prevail on the merits and did not reach the question of whether Plaintiffs were entitled to contend that the balance of harms militated in favor of the grant of the preliminary injunction. The likelihood of prevailing and balance of harm analysis were the two requirements for the grant of this type of injunction.

The court concluded that because 32-day rentals are subject to San Francisco’s rent control ordinance, this would change the nature of their business in significant and detrimental ways. The court agreed that the City could eliminate an existing land use by adopting a new regulation by added that it the law effected “an unreasonable, oppressive or unwarranted interference with an existing use, it may be held to be invalid as applied as a taking without just compensation or amortize the use.  The Court concluded:

The ordinances or zoning laws analyzed by each of these decisions had the effect of rendering it impossible to continue operating a legal, existing business; accordingly, the local government was required to either pay compensation or provide a reasonable amortization period for the business owners. The 2017 Amendments do neither. True, they do not require plaintiffs to shut their doors completely. But they do, on their face, require owners of SROs to forego more classically styled hotel rentals in favor of more traditional tenancies. This changes the fundamental nature of their business, by making them landlords rather than hotel operators.

The Court distinguished the rent control results of the 2017 regulations, which could be challenged separately, emphasizing that this case involved solely the forced change in Plaintiffs’ businesses with neither just compensation nor a reasonable amortization process and remanded the matter to the trial court to determine whether the balance of harm factors favored Plaintiffs.

Two things are of note regarding this case.  First, while this was a decision under the California Constitution, the result is unusual – even for California.  The prospect of changing one or more uses allowed in a general zoning ordinance to be the basis for a takings claim should be worrisome to local governments, who should follow this case closely.  If amortization is the alternative to a taking, the basis for calculating amortization would be either the cost of improvements that commit a structure to SRO hotel (as opposed to other hotel) uses and the price paid for the property based on an SRO status.

Second, it is an unpublished decision, which cannot be cited as precedent.  Unpublished decisions in California are most often used when the law is settled.  However, another common reason for an unpublished decision is that the court wants a certain result but does not want its analysis exposed to public scrutiny.  That may be the case here, because the case clearly isn’t based on settled law.

San Francisco SRO Hotel Coalition v. City and County of San Francisco, No. A151847 (Cal. App., 5th Dist., October 15, 2018)

This post was authored by Matthew-Loeser, Esq,

Appellant Timothy Martin appealed from a judgment dismissing his §1983 action against the Town of Simsbury and various town officials. Martin owned a property which he intended to build a one-family home on. Appellees informed Martin that he first needed to conduct an inland-wetlands investigation. Believing his property did not contain any inland wetlands, Martin instead applied for a building permit. Appellee Michael Glidden informed him that no building permit would be issued until Martin completed the wetlands investigation. Additionally, Martin was told that he could not build on his property because the lot did not have the requisite street frontage. Glidden suggested that Martin apply for a special permit under the town’s rear-lot regulation. Martin instead appealed to the Simsbury Zoning Board of Appeals (“ZBA”), which affirmed. Martin then sought a variance from the frontage requirement, which was denied. Finally, Martin filed this action, claiming that Appellees’ actions effected an unconstitutional taking of his property, denied him due process, and violated equal protection. The district court dismissed Martin’s claims, finding that Martin had failed to meet the final-decision prong of Williamson County.

On appeal, Martin contended that pursuing a special permit under this regulation would have been futile. Under Article 7(C)(8) of the Simsbury Zoning Regulations, a prospective developer could seek a special exception allowing a lot to be divided to create a new lot that can be developed, notwithstanding the newly created lot’s failure to meet the frontage requirement, provided certain conditions are met. The court determined, however, that this regulation applied to the dividing of a lot, required that the lot have been in its current configuration since 1969, and applied only if the current lot met the applicable frontage requirements. Here, Martin was not looking to divide his lot. Additionally, his lot did not meet the applicable frontage requirements, and was created in 2011. Thus, on its face, the regulation was inapplicable to Martin’s property, and pursuing this course would therefore have been futile. Accordingly, Martin’s failure to seek such an exception did not affect the finality of the ZBA’s decision.

Next, appellees argued that Martin could have merged his property with an abutting lot and then sought a permit to build an accessory structure, such as a swimming pool or a tennis court. The court rejected this, finding that requiring Martin to exhaust all the potential uses of his property before bringing his constitutional claims would have conflated prudential ripeness with the merits. Accordingly, the court found that the district court erred by ruling that Martin failed to satisfy the first prong of Williamson County, and vacated the district court’s judgment dismissing Martin’s amended complaint.

Martin v Town of Simsbury, 735 Fed. Appx. 750 (2nd Cir CA 2018)

This post was authored by Matthew Loeser, Esq.
In January 2013, the City of Brookhaven enacted a code to “regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City.” One month later, Stardust applied for an occupation tax certificate, as required by Article II of Chapter 15 of the Code of the City of Brookhaven, describing its business as “Retail—Smoke Shop, Tobacco; related accessories; gifts.” Stardust denied in its application that it would operate a sexually oriented business as defined by the Code. The City then brought a 255-count accusation against Stardust in Brookhaven Municipal Court, alleging Code violations. Stardust raised constitutional defenses to the charges, and filed a civil suit in the Superior Court of DeKalb County, Georgia, seeking to enjoin enforcement of the Code on the grounds that it violated provisions of the United States and Georgia Constitutions. Several months after filing suit in state court, Stardust filed suit against the City in federal district court, challenging the City’s denial of Stardust’s application for a sign permit. The district court granted the City’s motion for summary judgment, and Stardust appealed.
On appeal, Stardust contended that the Code was unconstitutional under the Constitution’s First Amendment because it operated as an impermissible restriction on Stardust’s constitutionally protected commercial speech. Specifically, Stardust challenged the definition of sexual device shop as a commercial establishment that “regularly features” sexual devices. The court found that the Code represented a time, place, and manner restriction that regulated where and when adult businesses may operate. Additionally, the City had a substantial interest in regulating negative secondary effects of adult businesses. Here, the City identified 73 sites inside its city limits where a licensed sexually oriented business could operate. As such, the Code left open sufficient alternative avenues of communication. The court therefore held that the Code was a zoning measure, and did not impermissibly infringe Stardust’s First Amendment right to display and arrange its products. Moreover, as the Code neither banned the sale or use of sexual devices in the City nor impeded any individual’s ability to engage in private, consensual sexual activity, the court rejected Stardust’s argument that the Code violated a substantive due process right to private sexual intimacy.
Stardust next claimed that its right to equal protection under the Fourteenth Amendment was violated because the City allowed Pink Pony, which was also a sexually oriented business operating within 100 feet of another sexually oriented business, to continue to operate while the City continued to issue citations to Stardust. Stardust further contended that Pink Pony was a similarly situated business because it was a sexually oriented business and both businesses were in existence when the City added the spacing requirements to the Code. The record reflected, however, that Pink Pony had lawfully operated in its location for more than 20 years before the City enacted the Code, whereas Stardust opened its doors after the Code was passed. Accordingly, the court affirmed the district court’s grant of summary judgment to the City.
Stardust, 3007, LLC v City of Brookhaven, 899 F3d 1164 (11th Cir. CA 2018)

This post was authored by Matthew Loeser, Esq.

Plaintiffs Harenton Hotel, Inc., Randy M. Hare, and E. Properties, LLC appealed from a final judgment awarding summary judgment in favor of defendants on plaintiffs’ federal claims and dismissing their state law claims without prejudice. The case arose from Appellants’ attempt to renovate a 50-room luxury hotel a building in the Village of Warsaw, NY that had served as a nursing home. Although plaintiffs were initially granted a building permit and several variances for the nursing home, that permit expired and Appellants were not granted an extension or a new building permit. After determining that further efforts to obtain approval for the project would be futile, Appellants filed the suit, asserting claims under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, for denial of equal protection in violation of the Fourteenth Amendment, and asserting state law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and tortious interference with business relationship.
None of the parties disputed that Hare engaged in speech protected by the First Amendment by contacting the New York State Code Enforcement Office for assistance with getting the project permitted, filing an Article 78 proceeding in New York State Supreme Court, and speaking out against defendants at public hearings. However, plaintiffs failed to introduce any evidence that defendants’ actions were motivated or caused by Hare’s protected speech. The record reflected that Hare’s protected speech was a reaction to an ongoing pattern of the Warsaw Attorney and defendant Code Enforcement Officer Daniel Hurlburt requesting more information from Hare, preventing further work on the project, and denying Hare an extension to his existing building permit or a new building permit. Moreover, by Hare’s own admission, defendant Valerie Duell was motivated to act against Hare due to ill will fostered unrelated to Hare’s relevant protected speech taking place.
In their Fourteenth Amendment equal protection class-of-one claim, plaintiffs pointed to three other projects in Warsaw which they contended were similarly situated to the project. The court rejected this claim, finding that plaintiffs failed to set forth any evidence or argument as to how they were similarly situated to the other projects they identified, all of which were significantly smaller and less complex than the 50-room luxury hotel, and all of which were completed within a year without need to extend a building permit. As the aforementioned federal claims were dismissed, the court held that the district court did not abuse its discretion by declining to exercise jurisdiction over the remaining state law claims.
Harenton Hotel, Inc. v Village of Warsaw, 2018 WL 4293328 (2nd Cir.10/10/2018)

Posted by: Patricia Salkin | September 25, 2018

UNITED STATES SUPREME COURT HEARS IMPORTANT TAKINGS CASE

This post was authored by Edward J. Sullivan, Esq.

Most land use lawyers were unaware that the United States Supreme Court has taken up a significant takings case from Pennsylvania, a case that may revolutionize takings law for years to come.  Since the Hamilton Bank decision in 1985, the Court has generally discouraged federal courts from considering claims for just compensation for government takings of private property arising at the state and local level until after state courts have weighed in.  However, failure to succeed at the state level has usually resulted in the same result in federal courts as well, as discussed below.  Property rights advocates have long sought the means to have federal courts hear more of these takings claims directly without first seeking state court review.   And with this most recent case, they might succeed.

The case, Knick v. Township of Scott, involves a local government’s attempt to deal with the protection of archeological resources.  Noting a great number of “home burials” since colonial times and desiring public access to gravesites, the Township passed an ordinance requiring public and private cemeteries to be open to the public during daylight hours.  A Township inspector then asserted that one or more private gravesites existed on Knick’s property, although there was no evidence of the same, and that town personnel and the public could visit that alleged gravesite by traveling over Knick’s private property.  The inspector threatened penalties under the ordinance if Knick obstructed access to the asserted gravesite area.

Knick filed takings claims against the Township in state and federal courts, but this case only involves the federal action.  Under Hamilton Bank, a takings claimant could not proceed directly in a federal court.  Instead, the claimant was required to “ripen” her claim in two ways.  First, she must obtain a “final” decision from the state or local government.  This means that if there are any available remedies to reduce the scope of the claim (think of seeking a variance to zoning requirements that inordinately increase the costs of development), she must seek that relief  (and the failure to do so may be fatal to the claim).  This step was not at issue in Knick.

But the second step, which requires a claimant to seek resolution of federal takings claims in state courts, was at issue.  In this case, Knick’s federal case was dismissed because she did not complete her state court takings claim.  Unlike the typical takings claims that arises from action on a permit and requires governmental action, Knick involves a “facial” takings claim that asserts that an ordinance or regulation is unconstitutional in all of its applications.  Lower federal courts have split on whether this type of claim must first be heard by a state court and the Supreme Court has determined to resolve this conflict.

There were several theories under which this claim might proceed.  The Township required access to the alleged gravesites over Knick’s private property and a “physical taking” claim (in the nature of trespass) could be advanced by the allegedly unconstitutional obligation that Knick open her property to the world.  Also, Knick could claim a “facial” taking, that the access obligation was unconstitutional and should be invalidated immediately. Either of these challenges to Williamson County would be a significant departure from the existing practice. It is possible the Supreme Court will go further and reconsider whether it is appropriate to limit federal takings claims to those previously decided in state courts.

Property rights advocates often dislike going to state courts first.  If they lose the federal claims in state courts, the notion of collateral estoppel (that you can’t take two bites at the apple) almost always terminates the federal claim.  Even if the takings claim is raised only under their state constitutions, a loss here will likely also result in a loss of a federal takings claim, because the facts are the same and most states interpret their state constitutional provisions on takings consistent with the  federal takings clause, so the two bites of the apple rule also applies.

Local governments, and their insurance companies, may not have helped their cause by taking advantage of a practice called “removal,” in which a municipal defendant may seek to have a case involving a federal takings claim brought in state court “removed” to federal court, followed by a Motion to Dismiss by the defendant because the case was not “ripe” in that there was no state court resolution of the claim.  Some federal courts have denied the Motion to Dismiss because it reeks of game playing.  Nevertheless, the resultant effects on costs, time and uncertainty have discouraged takings claims from being litigated.

The Supreme Court has several choices to dispose of Knick – it could keep the existing ripeness rule of Williamson County rule and thus greatly limit the number of takings claims brought in federal courts.  Or it could do away with the rule completely and open federal courts to takings litigation.  Neither of these alternatives is likely.  The Court would not have taken this case if it did not desire a serious examination of ripeness.  However, neither is it likely the Court will allow a flood of federal takings claims to be brought in federal courts in the first instance.

What may happen is something in the middle.  The Court could declare that facial takings claims (such as in this case where a local government authorizes a trespass) may be heard in federal courts without ripening those claims in state courts.  Or it may decide that state courts may hear takings cases first if those courts have a constitutionally adequate procedure to examine those claims and continue to insist that those state courts hear those claims first, as Williamson County now provides.  However the court decides this case, the results will be significant.

The complete docket is available here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-647.html

This post was authored by Matthew Loeser, Esq.

 
Ali and Donna Tabrizi wanted to build a house on an undeveloped piece of land. When they investigated obtaining a building permit, they were told by the City that they would need to first obtain a plat, which required them to file a subdivision application. The Tabrizis brought action against city and three of its employees in their official capacity seeking a declaration that municipal land use regulations did not apply to landowners’ subdivision application, that landowners were excepted from platting, and that actions of employees were ultra vires. The district court dismissed claims on defendants’ plea to the jurisdiction and denied land owners leave to amend their petition.

 
Speciffically, the Tabrizis’ suit sought a declaration under the Texas Declaratory Judgment Act (“DJA”), which expressly allows for a “person whose rights, status, or other legal relations are affected by a municipal ordinance to have determined any question of construction or validity arising under the ordinance and obtain a declaration of rights, status, or other legal relations thereunder.” The court noted, however, that the DJA was not a general waiver of sovereign immunity, but only waived immunity for certain claims. Here, the court found that the conflict was academic as it was required to construe the exact same ordinances to resolve the Tabrizis’ ultra vires claims against the City officials.

 
Regarding the ultra vires claim, the Tabrizis contended the trial court erred in overlooking deposition testimony from the City’s chief environmental officer, as it allegedly would have shown he was unable to cite any direct authority for applying the environmental rules to platting applications. The court disagreed, finding that an agency employee’s inability to articulate the construction of a statute in a deposition, or in an affidavit, could not overcome its construction of clear statutory language. Under the terms of the City’s code, the court found that that more than a survey was required for platting. As such, the court overruled Issue Two as it claimed the City officials lacked the authority in applying Chapter 25-8 to a subdivision application.

 
Lastly, the Tabrizis argued that City officials acted ultra vires in denying them an exemption from the subdivision platting requirement under a grandfathering exception. The Tabrizis pleaded that the street gutter abutting the lot qualified as “utility service,” which entitled them to the exception. However, the Tabrizis did not claim that the City officials violated a ministerial duty; instead, they argued the definition of a public utility was sufficiently clouded to create a fact issue, and therefore prevented a summary dismissal of their claim. The court found that this question of whether the City officials acted without legal authority, turned on whether the officials had the discretion to interpret Section 25-4-2(D) as they apparently did: limiting it to electric, water, wastewater, or gas services hook-ups. However, even assuming the officials had some, but not total discretion, to define the otherwise undefined “utility service” term, the Tabrizis failed to plead that the officials’ interpretation conflicted with the ordinary meaning of “utility service” under Section 25-4-2(D). Accordingly, the court held that the Tabrizis had not asserted a valid ultra vires claim for the denial of the exemption.

 
Tabrizi v City of Austin, 551 SW 3d 290 (TX App. 4/29/2018)

This post was authored by Matthew Loeser, Esq.

Landvatter Enterprises, LLC, submitted its application to the the Planning and Zoning Commission’s (PZC) to rezone the tract on which it intended to build the concrete plant. The application sought to convert the “Community Development” zoning district into a “Commercial Activity Community Business” district, which would allow Landvatter to construct the concrete plant on the desired tract. The Commission issued its order adopting the PZC’s recommendation to approve the rezoning application, and Mason and Concerned Citizens appealed the County Commission’s order to the circuit court, which held a hearing and entered judgment in favor of the Commission and Landvatter.
The record demonstrated that the PZC itself referred to its consideration of the Landvatter application as a hearing. Additionally, the PZC solicited input from various interested parties, with the exception of appellants, to assist the PZC in making its decision on whether to recommend approval or denial of the Landvatter application. Furthermore, PZC adhered to Missouri statute section 64.863, which mandates that no county zoning plan or regulation may be amended “without a public hearing and the person or body which conducts the hearing shall give notice, at least fifteen days before the hearing, by regular mail to all owners of any real property located within six hundred feet of the parcel of land for which the change is proposed.”
The court next found that to deny certain interested parties the opportunity to be heard at the critical stage of the zoning amendment process when the PZC was formulating its statutorily-mandated recommendation to be used by the county commission to render its decision on the application, fell short of providing procedural due process because the appellants were denied the opportunity to be heard at a meaningful time and in a meaningful manner. Accordingly, the court reversed the judgment of the circuit court, and held that the County Commission’s rezoning order was void.
Mason v County Commission of Franklin County, 551 SW 3d 54 (MO App. 5/15/2018)

This post was authored by Matthew Loeser, Esq.
In 2012, Da Vinci contracted with Daniel Griffith to purchase a lot. The purchase was conditioned upon approval by the City of a development plan to build a car wash. Pursuant to the planned development zoning, a car wash was a permitted use on the Lot. In February 2013, the City conducted a review and found that the proposed development plan for a car wash was unlikely to have a negative effect on the location and was consistent with the surrounding uses. One month later, Da Vinci and the purchaser submitted a formal development plan application for the lot. A city staff report found that the plan complied with the minimum commercial design standards and would have no impact on traffic; however, there was significant opposition to the development plan from real estate developer Jim Poynter and two former city officials. Ultimately, the planning and zoning commission recommended against approving the development plan because it did not mitigate compatibility problems and it did not enhance the neighborhood. The council voted to deny the development plan application, and Da Vinci filed suit against the City and several other parties in state court. The district court judge granted the City’s motion.
As to the substantive due process claim, the court found Appellants failed to cite any explicit language in the ordinances requiring the city council to grant a development plan application when all guidelines were met. Since there was no “explicitly mandatory language” in the ordinances requiring city officials to approve a development plan, even where a plan met all required guidelines, the city council had discretion to grant or deny the benefit. Accordingly, Appellants did not have a protected property right in the approval of its development plan.
Appellants next contended that their development plan application was treated differently than the application of Cooper Carwash. The district court found that Cooper Carwash was not similarly situated, and, even if it was, the City had a rational basis for the differential treatment. Here, the record indicated that the city council member, who made the motion to deny the application, stated several reasons for denying the development plan, including that the proposed development did not enhance the neighborhood or address the concerns of the neighbors. As Appellants failed to show that the City lacked a rational basis for its decision to deny the development plan, the court held that the district court’s grant of summary judgment was appropriate.
Finally, the court found that athough the value of Da Vinci’s property was undoubtedly reduced by the denial of its development plan application, the zoning and allowable uses of the property never changed. As the zoning of the lot in question had not changed, the court declined to find any reasonably held investment-backed expectations were affected by the City enforcing restrictions in place when such investments were made. Furthermore, Da Vinci could not show the character of the government action was severe enough to justify a compensable taking under Texas law.
Da Vinci Investment, LP v City of Arlington, 2018 WL 4090599 (5th Cir CA 8/27/2018)

This post was authored by Matthew Loeser, Esq.

Defendant and Counterclaim Plaintiff Sisters was a religious not-for-profit corporation that owned and operated a convent in the Town of Greenburgh, New York. Plaintiff and Counterclaim Defendant S&R was a New York limited-liability company managed by brothers Stephen and Richard Troy, which purchased, and attempted to develop, a parcel of land directly adjacent to the Sisters’ convent into 41 affordable housing units. On March 2, 2013, the Sisters sent a letter to S&R reserving its rights under the restrictive covenant. Following receipt of this letter, S&R commenced a suit against the Sisters in Westchester County Supreme Court seeking to extinguish the enforcement of the covenant. In their counterclaim, the Sisters alleged that in the event that S&R’s FHA claims succeeded, they should be entitled to compensation for any damages suffered as a result of the “extinguishment” of their restrictive covenant.
At the outset, the court noted that the FHA did not contain any language suggesting that owners whose property lost value as a result of the statute were entitled to compensation. Instead, the court found that if enforcing a restrictive covenant violated the results-oriented directive of the FHA, compensating a party for its inability to enforce that restrictive covenant would improper. As such, regardless of whether a violation on the Sisters’ part had been established, the court found that the Sisters would not be entitled to seek compensation under RPAPL § 1951(2). Since there was no way for the Sisters to reformulate the ACC in a way that would not be preempted, any attempt at re-pleading would be futile.
S & R Development Estates, LLC v Town of Greenburgh, 2018 WL 411918 (SDNY 8/29/2018)

 

This post was authored by Matthew-Loeser, Esq.

Plaintiffs Citizens for Free Speech, LLC and Michael Shaw brought an action against the County of Alameda and County-related defendants, pursuant to 42 U.S.C. § 1983, to challenge Defendants’ efforts to enforce certain local zoning ordinances with respect to three billboards that Shaw has allowed Citizens to display on his property. The First Amended Complaint (“FAC”), the operative pleading before the Court, alleged that the County’s enforcement efforts violated Plaintiffs’ right to free speech, due process and equal protection. The pleadings also alleged that the County wass foreclosed from enforcing its ordinances as a result of the judgment entered by District Judge Charles Breyer in Plaintiffs’ prior lawsuit against the County.

The Court found that all of the elements for Younger abstention were clear from the pleadings. The FAC specifically alleged that the County’s administrative abatement proceedings are ongoing. The abatement proceedings implicated important state interests. The Court noted that it is well settled that a local entity’s police power includes the authority to adopt and enforce zoning ordinances. It found no impediment to Plaintiffs’ ability to raise their constitutional issue in the context of the state proceeding, and the record demonstrated that the Plaintiffs were attempting to utilize the action to interfere with a state proceeding. Plaintiffs’ claims, all of which seek to enjoin the administrative abatement proceedings were dismissed.

The court further noted that even if the claims weren’t dismissed under Younger, they would have nevertheless been barred by res judicata. In Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F. Supp. 3d 952, 966, the court found that the zoning Ordinance is content-neutral, and the same procedural requirements do not apply to content-neutral permit schemes. Likewise, the Plaintiffs do not dispute that they fully litigated both their freedom of speech and equal protection claims to judgment in the prior action.

Citizens for Free Speech, LLC v County of Alameda, 2018 WL 427220 (ND CA 9/4/2018)

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