In 1994, the New York City Department of City Planning (DCP) conducted an “Adult Entertainment Study”, which concluded that adult entertainment establishments, particularly when concentrated in a specific area, tended to produce negative secondary effects such as increased crime, decreased property values, reduced commercial activities, and erosion of community character. As a result, the City adopted an amended zoning resolution in 1995 that barred any “adult establishment” from all residential zones and most commercial and manufacturing districts, mandating that adult businesses had to be at least 500 feet from houses of worship, schools, and day care centers. The 1995 Resolution defined an “adult establishment” as a commercial establishment in which a “substantial portion” of the establishment includes “an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof”. In response to claims from owners and operators of adult establishments that the resolution’s operative phrase, “substantial portion,” was fatally vague, the Department of Buildings and the City Planning Commission determined that the “substantial portion” provision meant that any commercial establishment with “at least 40 percent” of its accessible floor area or stock used for adult purposes qualified as an adult establishment.

The New York City Council adopted and ratified Text Amendment N010508 ZRY to the 1995 Resolution (the 2001 Amendments) to address the concern that some commercial establishments were subverting the 1995 Resolution by superficially complying with the 60/40 formula but retaining their predominant, ongoing focus on sexually explicit materials or activities. The 2001 Amendments modified the “substantial portion” standard to provide that non-adult material would not be considered stock-in-trade for the purpose of the “substantial portion” analysis where one of several additional factors were present. Plaintiffs For the People Theatres, a movie theater that showed adult films, and JGJ Merchandise Corp., an adult video store, brought an action against the City, seeking a judgment declaring the 2001 Amendments to be facially unconstitutional and unenforceable, as well as for injunctive relief. In October 2002, plaintiffs Ten’s Cabaret and Pussycat Lounge commenced similar actions, which were later consolidated. The Supreme Court, New York County, entered judgment for owners, and the Appellate Division reversed. The Court of Appeals, affirmed as modified and remanded for further proceedings. On remand, the Supreme Court, New York County, entered judgment for city with respect to adult bookstores and video stores, and the Supreme Court, Appellate Division, reversed in part, vacated in part, and remanded. On remand, The Supreme Court, New York County, entered judgment for owners, and city appealed.

The Court of Appeals held that the City met its initial burden of showing that the 2001 Amendments were justified as a measure to eradicate the potential for sham compliance with the 1995 Ordinance, and thus to reduce negative secondary effects to the extent originally envisaged. The Court also found that because the plaintiffs met their burden to furnish evidence that disputed the City’s factual findings, the burden shifted back to the City to supplement the record with evidence renewing support for a theory that justified the 2001 Amendments. The City argued that despite any changes allowing for formal compliance with the 60/40 rule, the identified establishments clearly retained a predominant, ongoing sexual focus. However, at many of these adult stores the signs were modified, and signs advertising non-adult stock have been added so as to limit, if not eliminate, any emphasis on adult material. Furthermore, the evidence was not indicative of a predominant sexual focus in most of the stores, since nearly half of the stores did not restrict the admittance of minors at all. Finally, ample evidence that most of the stores kept the non-adult materials in the front of the stores, making them easy to access. Therefore, the court found that the City did not meet its burden with respect to the adult video and book stores.

As to the eating and drinking establishments, the evidence indicated that topless dancing took place daily for approximately 16–18 hours a day and that lap dances were provided in both public and private areas of the club. The City contended that this focus on sexually explicit activities and specified anatomical areas was not mitigated by the clubs’ non-adult sections where the non-adult use was a restaurant or bar that served adult-section customers or even where it is independent of the adult business but takes place in a separate part of the premises. Despite this, there was no evidence as to the size of the signs of these establishments or how they compared to signs advertising non-adult activity or those of surrounding non-adult businesses, which was not enough to show that the signage indicated a predominant sexual focus in most of the clubs. Accordingly, the judgment of the Supreme Court, New York County, declaring the 2001 Amendments to New York City’s adult use zoning regulation as to adult eating and drinking establishments and adult video and book stores an unconstitutional violation of the First Amendment and permanently enjoining the City from enforcing the amendments was affirmed.

For the People Theaters of N.Y. Inc. v City of New York, 2015 WL 4429048 (NYAD 1 Dept. 7/21/2015)

At issue was whether Ingrid Anderson could keep a miniature horse at her house as a service animal for her disabled minor daughter, C.A. The daughter suffered from a number of disabilities that affected her ability to walk and balance independently, and the horse enabled her to play and get exercise in her backyard without assistance from an adult. In 2013, the City passed a municipal ordinance banning horses from residential property and then criminally prosecuted Anderson for violating it. Anderson’s defense was that the Americans with Disabilities Act (“ADA”), 42 U .S.C. 12101, et seq., and the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3601, et seq., both entitled her to keep the horse at her house as a service animal for C.A. Rejecting those arguments, the Hamilton County Municipal Court found Anderson guilty. Anderson then brought an action against the City in federal district court, arguing under the ADA and FHAA that the City intentionally discriminated against her because of C.A.’s disabilities, and that the City’s ordinance has had a disparate impact on C.A. and other disabled individuals, in violation of the FHAA. The district court granted summary judgment to the City, finding that Anderson’s claims were barred by claim and issue preclusion stemming from her Municipal Court conviction.

The City contended that both claim preclusion and issue preclusion barred the plaintiffs’ lawsuit because of: Anderson’s administrative appeal to the Blue Ash City Council in 2012, and her convictions for violating Ordinance 2013–1. Anderson’s administrative appeal to the Council dealt with two different miniature horses at a different location. These distinctions were significant because the ADA and FHAA regulations governing miniature horses call for a fact-specific inquiry into the characteristics of the particular animals in question, including their type, size, weight, and training, as well as the adequacy of the facilities where the horses are kept. Therefore, the court found that proceeding had no preclusive effect on this lawsuit. Similarly, the court found that Anderson’s convictions for violating Ordinance 2013–1 had no preclusive effect on her ADA and FHAA claims because the qualitative differences between the instant civil proceedings and her criminal trial in Municipal Court had different effects on her willingness and ability to litigate fully those issues in the prior proceeding.

As to the ADA claim, the court noted that other courts have typically found that to qualify for a reasonable modification, an animal must be specially trained to perform tasks directly related to a disability, contrasted with animals that have received only general training, provide only emotional support, or otherwise perform tasks not directly related to a disability. Here, Anderson testified that Ellie was trained to assist C.A. to overcome her mobility limitations by steadying her as she walks and helping her stand after she falls, tasks specifically listed by the ADA regulations as examples of ways that miniature horses can assist the disabled. Viewing all facts and drawing all reasonable inferences in Anderson’s favor, and given the “highly fact-specific” nature of the reasonableness inquiry, the court concluded that there were disputed issues of material fact as to the reasonableness of Anderson’s requested modification. However, even if the City’s procedures for compliance with federal regulations had a negative impact on its disabled citizens generally, this was insufficient by itself to support the inference that the City’s actions were motivated by C.A.’s disability because “acts and omissions which have a disparate impact on disabled persons in general are not specific acts of intentional discrimination against the plaintiff in particular.” Thus, the intentional discrimination claim and disparate treatment claim were dismissed.

Under the FHAA, plaintiff contended that by refusing to permit her to keep Ellie at her dwelling the City failed to make a reasonable accommodation. The fact that the horse allowed C.A. to play independently and exercise in her backyard and that, without the horse, C.A. could not do so for any significant length of time, and would effectively be denied the equal opportunity to play in her own backyard as non-disabled children can, was sufficient to satisfy the equal opportunity and necessity elements. The court also found that genuine disputes of material fact existed as to whether Anderson’s requested accommodation was reasonable and necessary to afford her and C.A. an equal opportunity to use and enjoy their dwelling. Accordingly, the court reversed the district court’s grant of summary judgment to the City on the plaintiffs’ FHAA reasonable-accommodation claim.

Anderson v. City of Blue Ash, 2015 WL 4774591 (6th Cir. CA 8/14/2015)

Adam McNeice (“McNeice”) (Plaintiff–Appellant) applied for a permit to add another floor to his vacation house in Waterford, Connecticut. His permit application “authorized the Planning & Zoning Commission, Building and Health Department and its staff to enter upon the property for the purpose of inspection and enforcement” of the zoning, building, and health laws. During the pendency of the application, town officials learned that McNeice’s house suffered from a variety of issues. The town demanded that McNeice stop work on the house, McNeice’s wrote a letter stating:“I retain every homeowner’s right of exclusion and specifically forbid Steve Cardelle from entering the property anytime. This is not a request. If the Waterford building department cannot send someone else, then the state officials will handle all inspections.”

On August 25, the Assistant Building Official inspected the house prompting McNeice, after further wrangling in the local government, to sue the Town of Waterford and more than a dozen of its officials (Defendants-Appellees) in federal court, alleging violations of the United States Constitution. Specifically, Murphy’s inspection constituted an unreasonable search in violation of the Fourth Amendment. The United States District Court for the District of Connecticut granted defendants’ motion for summary judgment and McNeice appealed to the to the United States Court of Appeals, Second Circuit who affirmed.

On appeal, the court stated that although “the Fourth Amendment generally prohibits the warrantless entry of a person’s home,” that limitation “does not apply to situations in which voluntary consent has been obtained.” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).  A consenting individual “may of course delimit as he chooses the scope of the search to which he consents.” Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “The standard for measuring the scope of consent under the Fourth Amendment is that of ‘objective’ reasonableness, what would the typical reasonable person have understood by the exchange between the state actor and the consenting party?” Id. at 251, 111 S.Ct. 1801. “To ascertain whether consent is valid, courts examine the totality of the circumstances to determine whether the consent was a product of that individual’s free and unconstrained choice, rather than a mere acquiescence in a show of authority.” United States v. Garcia, 56 F.3d 418, 422 (2d Cir.1995).

Here, the Court stated that McNeice’s permit application provided express consent for town officials to enter and inspect. His letter partially revoked consent as to any search conducted by Cardelle personally, but it left the consent intact, articulating McNeice’s assumption that the Town would simply “send someone else.” Because this is exactly what the Town did, the search was within the scope of McNeice’s consent, as any reasonable person would understand.

McNeice v Town of Waterford, 607 Fed Appx 103 (2d Cir CT 2015)

Posted by: Patricia Salkin | September 2, 2015

Fed. Dist. Court in Illinois Dismisses Some, But Not All, RLUIPA Claims

Editor’s Note: The following summary appears on the RLUIPA Defense Blog: http://www.rluipa-defense.com

A federal court in Illinois, in Church of Our Lord and Savior, Jesus Christ v. City of Markham, Illinois (N.D. Ill. 2015), dismissed some of the Church’s religious land use claims while allowing others to proceed. The case is important for a couple of reasons. First, it serves as a welcome reminder for local governments that “RLUIPA does not authorize any kind of relief against public employees.” Second, its interpretation and application of RLUIPA’s substantial burden provision appears to go against a recent Seventh Circuit decision applying the same provision in a prisoner case, Schlemm v. Wall (7th Cir. 2015).

The Church, which had been operating at its current location for 10 years “without issue,” brought the lawsuit after the City issued a summons for the Church to cease its operations due to safety violations or else obtain a conditional use permit. According to the Church, building and fire inspectors approved the Church’s use of the property, but the City’s Planning Board denied the Church a permit without explanation. The Church alleged violations of RLUIPA’s substantial burden and nondiscrimination provisions, the First Amendment’s Free Exercise Clause, Illinois’ Religious Freedom Restoration Act, and other state law. The City of Markham, its mayor, and several of its aldermen were sued in their individual capacities and were named as defendants.

First, the Court dismissed all RLUIPA claims against the City’s mayor and aldermen because the statute does not authorize relief against public employees. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011) (citing Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)). The Court also dismissed the RLUIPA nondiscrimination claim against the City. RLUIPA’s nondiscrimination provision provides that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2). Because the Church failed to allege any facts to support its nondiscrimination claim, the Court dismissed this allegation.

Next, the Court considered, and declined to dismiss, the Church’s RLUIPA substantial burden claim. The Court noted that the availability of alternative locations for the Church to operate and the City’s reason for denying the Church’s permit were not clear and, therefore, dismissal of the substantial burden claim would be premature.

The Court’s interpretation of RLUIPA’s substantial burden provision is significant. As we reported in our prior post, the Seventh Circuit, in Schlemm, recently appeared to alter the substantial burden standard for courts considering claims within the circuit. Schlemm concluded that the Supreme Court’s decisions in Holt v. Hobbs and Burwell v. Hobby Lobby Stores, Inc., articulated a substantial burden standard “much easier to satisfy” than that used in another RLUIPA case, Eagle Cove Camp & Conference Center, Inc. v. Woodboro (7th Cir. 2013) (“to be substantial, a burden must be ‘one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise … effectively impracticable.’”) (prior post about Eagle Cove available here). It is interesting to note that the Court did not even refer to Schlemm when allowing the Church’s substantial burden claim to proceed, and instead operated under the traditional standard used to assess such claims in the Seventh Circuit.

Because the RFRA and free exercise claims are subject to virtually the same analysis as the RLUIPA substantial burden claim, the Court also allowed those claims to proceed. The Court dismissed the Illinois Open Meeting Act claim as time-barred, but allowed the Church to move forward with its claim that the City’s decision was arbitrary and capricious in violation of Illinois’ constitution.

Church of Our Lord and Savior, Jesus Christ v. City of Markham, Illinois,  No: 15 C 4079 (N.D. Ill. 8/19/2015)

Metro Bank planned to build new branch and sought judicial review of the calculation township’s board of commissioners used to assess transportation impact fee for new development, asserting that township should not have included “pass-by trips” when calculating the number of new peak-hour trips generated by the development. The Court of Common Pleas affirmed board’s calculation, and the Bank appealed.

The Commonwealth Court held that the statute providing transportation impact fee calculation for a new development based, in part, on the estimated number of peak hour trips to be generated by the new development does not exclude pass-by trips. Pass-by trips are only excluded when evaluating whether a municipality can assess an additional transportation impact fee.

Metro Bank v. Board of Commissioner of Manheim Township., 2015 WL 4130405 (PA Commwlth 7/9/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1707387.html

Editor’s note: This summary appeared in Bond Case Briefs at: http://bondcasebriefs.com/2015/08/04/cases/metro-bank-v-board-of-comrs-of-manheim-tp-3/

The County of Sarpy revised an overlay zoning ordinance to exempt properties platted before the effective date of the original ordinance. In effect, the overlay ordinance imposed additional regulations on land along a specified road corridor. An owner of nonexempt property sought a judgment declaring the exemption unconstitutional as special legislation. The District Court, Sarpy County, entered judgment for county, and the owner appealed.

In considering whether the exemption in the revised ordinance is special legislation, the court first considered whether it created a closed class. The court reasoned that because the real property was alienable, the composition of any class consisting of owners of property in a certain area is subject to constant change. Because the future transfer of property within the exemption’s geographic area was probable, the class was not closed.

The court next addressed the issue of whether the class benefited by the exemption was arbitrarily selected. Here, the evidence established substantial differences between those exempted and those who were not. Only those property owners who filed a plat prior to enactment of the overlay ordinance were exempt. Because the submission of a plat application entails significant expense and planning, to subject those property owners to the design requirements contained in the overlay ordinance after they had already submitted a plat based on the absence of those design requirements would be harsh and unfair. Thus, limiting the exemption to those property owners who had completed the process of actually submitting a plat was a reasonable distinction. Because the exemption was not unconstitutional special legislation, the court affirmed the district court’s judgment.

Dowd Grain Company, Inc. v County of Sarpy, 2015 291 Neb. 620 (NE 8/14/2015)

The opinion can be accessed at: https://supremecourt.nebraska.gov/sites/supremecourt.ne.gov/files/sc/opinions/scAug14S-14-611.pdf

Relator-landowner Jeffery August owned a 20–acre tract of land located in the Sunrise Township, zoned for agricultural use. August built a fenced-in arena on his property for mounted shooting events, and a public announcement system to use in connection with the events. In 2013, August formed a club, Cowboy Mounted Shooting, and began hosting mounted shooting competitions and clinics. The Sunrise Township Board recommended denying the CUP application under section 8.05 of the CCO due to negative impact and the intrusion of noise caused by the proposed use. The county board then voted to deny the CUP application. August challenged respondent Chisago County Board of Commissioners’ denial of his conditional-use permit (CUP) application. August argued that the county board’s denial was arbitrary and capricious, and the county board erred when it failed to consider certain Minnesota Pollution Control Agency (MPCA) rules.

The record indicated that the county board voted to deny the CUP based on its conflict with the rural retail tourism use, specifically the small-scale/low-impact requirement and the impact it will have on the neighborhood “by intrusion of noise, glare, odor, or other adverse effects.” The county board relied on the criteria enumerated in the county zoning ordinances and thereby provided legally sufficient reasons for denying the CUP. August next contended that the county board could not consider the effects of noise unless the noise met or exceeded the controlling noise standards as determined by the responsible government entity. The court found that section 7.05 did not establish noise standards different from those promulgated by the MPCA. Instead, the zoning ordinances required that a CUP applicant demonstrate that the noise created by the proposed use will not adversely affect neighboring properties, and the rural retail tourism sections require that the use will not impact the neighborhood by intrusion of noise. Accordingly, section 7.05 was not in conflict with the MPCA noise standards, as it did not define any decibel limits for noise considerations. Here, the county zoning staff report stated that it estimated that noise from the property would not exceed the MPCA decibel limits, but the report did not confirm that noise level was measured in accordance with the statutory and administrative rules’ guidelines.

Moreover, members of the planning commission visited the property and heard, firsthand, the noise caused by the mounted shooting events and relied on these observations when making their recommendation. Thus, the court found the county board reasonably relied on the landowners’ concerns and planning commission members’ observations and therefore had a sufficient factual basis to determine that the increase in noise would adversely affect the neighborhood. Accordingly, the county board’s decision to deny the CUP was not unreasonable, arbitrary, or capricious.

August v Chisago County Board of Commissioners, 2015 WL 4877658 (MN App. 8/17/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/mn-court-of-appeals/1710859.html

Posted by: Patricia Salkin | August 29, 2015

NY Appellate Court Reverses Dismissal of Takings Claim Against Town

The plaintiffs, Blue Island Development, LLC, and Posillico Development Company at Harbor Island, Inc., purchased land in the Town of Hempstead which had formerly been used as an oil storage facility with the intention to remediate the environmental contamination and to develop the property into 172 waterfront condominium units. The Town granted the zoning change for this proposed use; however, restrictive covenants were imposed on the property, including a provision which required Blue Island to sell all the units in the proposed developments as condominium units, but permitted subsequent owners of the units to lease them to the extent otherwise permissible under Town law. By petition, the Town modified the subject covenant to provide that Blue Island was permitted to lease up to 17 of the 172 units for a period of five years after the issuance of the certificate of occupancy or until the delivery of title to the 155th unit, whichever occurred first. In 2013, Blue Island sought a further modification allowing it to sell 32 units and maintain the remaining 140 as rentals, but the Town denied this application without explanation. The trial court determined that Blue Island’s challenge to the zoning action could not be entertained as a CPLR article 78 proceeding because it challenged a legislative act, and converted that claim to a CPLR 3001 declaratory judgment cause of action pursuant to CPLR 103(c). The Town appealed, asserting that the court should have granted those branches of its motion to dismiss the CPLR 3001 and RPAPL 1951 causes of action. Blue Island cross-appealed, asserting that the court should have granted its cross motion for summary judgment and denied that branch of the Town’s motion to dismiss the unconstitutional taking cause of action.

The appellate court found that Blue Island sufficiently alleged that the restrictive covenant was improper because it regulated Blue Island’s ability as the owner of the property to rent the units rather than the use of the land itself. Furthermore, assuming that there was a benefit to be obtained by requiring the units to be sold rather than rented, Blue Island alleged that, because the rental restriction imposed by the restrictive covenant only applied to it and not to any subsequent owner of any of the units in the planned development, it was of no substantial benefit to the Town or its citizens. The Town failed to offer any explanation or evidence combatting this claim. Also unchallenged by the Town was Blue Island’s complaint alleging that the restrictive covenant did not advance any legitimate municipal interest, and that the covenant denied it an economically viable use of the land. Accordingly, the court found that the Supreme Court should have adhered to its prior determination denying that branch of the Town’s motion which was to dismiss the unconstitutional taking cause of action.

Blue Island Development, LLC v Town of Hempstead, 2015 WL 4744517 (NYAD 2 Dept 8/12/2015)

Posted by: Patricia Salkin | August 28, 2015

Fed. Dist. Court of Maryland Denies Motion to Remand Takings Case

Pulte was in the business of residential real estate development. This case involved a civil rights action brought by Pulte Home Corporation and Shiloh Farm Investments, LLC against Montgomery County, Maryland and the Maryland–National Capital Park and Planning Commission (collectively, “Defendants”) for allegedly violating Pulte’s state and federal civil rights by enacting land use legislation that adversely affected Pulte’s ownership interests in approximately 541 acres of land it owns in Clarksburg, Maryland. Before the Court were Pulte’s motion to remand to state court and the Commission’s motion to dismiss.

Pulte contended that the court should abstain and issue a remand order based on the well-established Burford abstention doctrine, or in the alternative decline to exercise supplemental jurisdiction. The Burford abstention doctrine justifies the dismissal of a federal action in a narrow range of circumstances when federal adjudication would unduly intrude upon complex state administrative processes because there exists: difficult questions of state law, whose importance transcends the result in the case then at bar; or federal review would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern. Pulte contended that Defendants acted arbitrarily and capriciously by drafting and adopting amendments to the 1994 Master Plan and by downzoning the Development Land so as to deprive Pulte of its constitutionally protected property interests. Thus, while requiring reference to Maryland land use law, these claims were constitutional in nature. Accordingly, the court denied the motion to remand.

As to the motion to dismiss, the Commission argued that Pulte’s complaint must be dismissed because the Commission did not have the “legal authority to zone, rezone, upzone, or ‘downzone’ property in Montgomery County” and therefore could not have caused Pulte’s injuries. Here, however, Maryland law specifically authorized the Commission to acquire and manage lands for public parks, draft and adopt master plans, draft zoning and subdivision ordinances, adopt development regulations, act on land development applications, and recommend other land use policies to Montgomery County. Thus, while the Commission may not have the authority to formally approve or enact a master plan or amendments thereto, the Commission’s role in land use regulation is nevertheless essential to continued real estate development in Montgomery and Prince George’s Counties. At the motion to dismiss stage of the prosecution, the court found that Pulte sufficiently alleged that the flawed opinions and reports created by the Commission or its agents could have been used to justify the Master Plan Amendment and its downzoning of the Development Land.

Pulte Home Corporation v Montgomery County, Maryland, 2015 WL 4430588 (D. MD 7/17/2015)

The parties to this appeal are two foreign limited liability companies: A Guy Named Moe, LLC (“Moe’s”), appellant, and Chipotle Mexican Grill of Colorado, LLC (“Chipotle”), appellee. Moe’s, a Virginia LLC, leases 122 Dock Street in Annapolis and has operated a restaurant at that location since 2006. On August 27, 2012, Chipotle, a competitor of Moe’s, filed an application for a special exception with the City’s Department of Planning and Zoning, so that it could open a “standard restaurant” at 36 Market Space in downtown Annapolis, a location just four to five hundred feet from one of Moe’s restaurants. Moe’s petitioned for review of decision of city department of zoning and planning, approving application for special exception. The circuit court responded by dismissing Moe’s petition, reasoning that, because Moe’s, as a lessee of the Dock Street property, did not pay any taxes on that property, it lacked standing to challenge the Board’s decision.

The court found that the threshold issue of this appeal was not whether Moe’s was a “taxpayer” or “a person aggrieved,” or neither one at all, but whether the petition at issue was void ab initio, given that, at the time that it was filed, Moe’s had lost its right to do business in Maryland and was nonetheless continuing to do business in Maryland. Moe’s had its right to do business forfeited by the SDAT on November 16, 2006, which occurred because Moe’s “hadn’t filed the proper registration and the fees” in violation of C.A. § 4A–1002 and 4A–1013. That right was not reinstated nearly seven years later, on September 24, 2013. Moe’s nonetheless continued to do business in Maryland during the period of forfeiture and, during that period, it not only opposed Chipotle’s special-exception application before the Board but then filed the petition at issue, in the circuit court, contesting the Board’s decision to grant Moe’s a special exception. The court found that if a domestic LLC could not, by “negative implication,” file or maintain suit, then surely a foreign LLC containing an express bar to such legal action could not file or maintain suit, or its legal equivalent, a petition for judicial review.

Furthermore, the court held that even if Moe’s were a “person aggrieved” under L.U. § 4–401(a)(1) and therefore had standing to petition the court for review as such, Moe’s petition must nonetheless be dismissed because it did not meet Rule 7–203(a)’s 30–day deadline, as it had no right to “maintain suit” under C.A. § 4A–1007(a) during the entire 30–day period and, when it re-attained that right, the thirty-day period had long since lapsed. Additionally, the court found “a person is not ‘aggrieved’ for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business.” As this was the case here, the dismissal of Moe’s claim was affirmed.

A Guy Named Moe, LLC and Chipotle Mexican Grill of Colorado, LLC, 115A.3d 733 (MD 5/29/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/md-court-of-special-appeals/1702502.html

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