The plaintiffs, Kobyluck Brothers, LLC, and Kobyluck Construction, Inc., appealed from a judgment of the trial court affirming the decision of the defendant, the Planning and Zoning Commission of the Town of Waterford, which denied the plaintiffs’ special permit and site plan application. On appeal, the plaintiffs claimed that the court incorrectly interpreted the term “manufacturing” as used in the Waterford Zoning Regulations to preclude the production of construction aggregate.

The gravamen of plaintiffs’ contention was that the court’s analysis was flawed and led it to misconstrue the term “manufacturing”, as neither the dictionary definition nor the relevant state case law supported the court’s construction of the term “manufacturing,” and consequently, the court erroneously interpreted the regulations. The court agreed that § 11.2.11 of the regulations was ambiguous. However, although it was clear that the regulations did not treat “manufacture” and “processing” synonymously, and the regulations classified rock crushing as a form of processing, it was less apparent that the regulations were intended to exclude this activity in the “manufacture … of other building materials,” which could include rock crushing. The dictionary definitions of “manufacture” and “process,” coupled with the manner in which “manufacturing” was defined by two legal treatises discussing zoning law, lead the court to conclude that the construction aggregate was manufactured through a series of actions, such as: excavating bedrock (the raw material), crushing the large, unusable rocks with industrial rock crushing machinery, and screening and sorting the smaller pieces of rock. Therefore, through a continuous operation, once the excavated bedrock was crushed, screened, and sorted, the resulting construction aggregate had been given a “new quality or characteristic and adapted…to new uses.”

Accordingly, the court determined that the excavated bedrock was changed in size and shape to produce construction aggregate, which had a new form, quality, and property that was different from the bedrock that was used to produce it. The process clearly fell under the purview of “manufacturing”, and the term therefore included the plaintiffs’ proposed use. Thus, the court held that judgment should be reversed and remanded. 

Kobyluck Bros., LLC v. Planning and Zoning Com’n of Town of Waterford, 167 Conn.App. 383 (CT App. 8/2/16)


Plaintiff AYDM Associates, LLC, commenced this action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 against Defendant Town of Pamelia and Defendant Lawrence C. Longway, arising from Plaintiff’s submitted application for a subdivision to the Planning Board. After submitting its initial application, Plaintiff submitted a revised application for a “cluster” subdivision of fifty townhouse units on 5.471 acres of land located at State Route 37 and Graham Road in the Town of Pamelia (“Emerald Acres” or the “subdivison”). Plaintiff asserted claims for procedural and substantive violations of the Due Process Clause of the Fourteenth Amendment and violations of the Equal Protection Clause of the Fourteenth Amendment as well as claims of conspiracy. Additionally, Plaintiff asserted a state claim for tortious interference with a contract.

Plaintiff first claimed that Defendants’ treatment of its approved, single-family subdivision was both harmful and different from Defendants’ treatment of the Liberty townhouse complex, a similarly situated subdivision. The Court found that Emerald Acres and Liberty Acres were not “roughly equivalent” or “similarly situated” as required in a selective enforcement claim. The subdivision approval for the Liberty townhouse complex required and followed a different procedure than Plaintiff’s subdivision, and the properties were located in different zoning districts. Plaintiff’s property was located in a commercial zone, and the proposed Liberty townhouse complex was located in an agricultural residential zone. As a result, Liberty and Emerald Acres were proposed with significantly different residential development plans. Emerald Acres was approved as single-family dwellings that were townhouses with subdivided property lots. Additionally, Liberty Acres was not the same size as the approved development on Emerald Acres, was approved in 2006 while Emerald Acres was approved in 2010, and Liberty underwent a Type-I SEQR review by Defendant Town prior to approval.

On its Due Process claim, Plaintiff alleged that the Planning Board tried to redo the SEQR review as a Type-I action after it was already was approved under a Type-II action. Plaintiff’s benefit at issue in this due process claim was that Plaintiff was entitled to the DOH’s approval without a Type-I review by Defendants. Plaintiff argued that when it received conditional, final approval from the Town Planning Board that Defendants had no further discretion in accepting ownership. However, only the Town Board can accept a dedication of infrastructure, as Section 660 of the Town of Pamelia Subdivision Law specifically authorized the Town Board to accept roads or facilities of a subdivision by resolution. Furthermore, the local law stated that the Town Board “may” proceed to accept a facility; the law did not use the mandatory language “shall” accept. The idea that the Town Board did not have discretion or that its authority to accept ownership and maintenance was merely a ministerial act was therefore contradictory to the local law’s use of the word “may.” The court also noted that the Second Circuit found that, where the statute authorizing the dedication of the roads uses the term “may,” the municipality acts with discretion. As a result, the court found that the Town Board had the authority to act at its discretion to accept Plaintiff’s water improvement in Emerald Acres. Plaintiff did not have a clear entitlement to these benefits and, therefore, there was no federally protected interest.

Plaintiff next alleged that “Defendants conspired with and among each other, and with defendant Town of Pamela’s Town Attorney Renzi, Town Engineer Dimmick, and other Town officials, to violate and deprive Plaintiff’s rights to equal protection and due process.” However, because Plaintiff’s claims of constitutional violations did not withstand Defendants’ motion for summary judgment, Plaintiff was unable to maintain a valid conspiracy claim under § 1983. Furthermore, even if Plaintiff had a surviving constitutional violation claim, the court held that conclusory or vague allegations that Defendants engaged in a conspiracy were insufficient, unless amplified by specific instances of misconduct.

Plaintiff lastly claimed that Defendants knew or should have known that Plaintiff intended to lease or sell the townhouses in its subdivision, and Defendants actions “thwarted and delayed” Plaintiff’s plans to make the homes available for occupancy, depriving Plaintiff of reasonably anticipated revenues and profits. The Court found that the record was void of evidence that Plaintiff ever had any contractual relations between itself and any third-party purchasers or lessees. Accordingly, the court granted Defendants’ motion for summary judgment as to its tortious interference claim.

AYDM Associates, LLC v. Town of Pamelia, 2016 WL 4705568 (N.D.N.Y. 9/8/2016)

This case was an appeal brought by Plaintiffs Angel and Linda Mendez, who appealed a judgment in favor of defendant Rancho Valencia Resort Partners, LLC. The trial court entered judgment in favor of defendant on plaintiffs’ action for private nuisance, based on a dispute over the reasonableness of the level of noise generated during outdoor festivities held at the Rancho Valencia Resort. Plaintiffs, who shared a property line with the Resort, became frustrated with the noise emanating from the Resort when it hosted outdoor events on a lawn created for that purpose. Plaintiffs filed suit, alleging that the Resort’s outdoor events constituted a private nuisance, and sought to enjoin the Resort from continuing to create noise that would travel onto plaintiffs’ property and disturb them there. Despite a finding that “the public address system used by the Resort on the Croquet Law operates at a volume that allows words to be understood outside the boundaries of the Rancho Valencia property”, the trial court concluded that the Resort’s outdoor events did not amount to a private nuisance.

The court first noted that the elements of substantial damage and unreasonableness necessary to making out a claim of private nuisance are questions of fact that are determined by considering all of the circumstances of the case. Thus, plaintiffs were required to demonstrate that the use of this public address system in this way constituted an interference with plaintiffs’ use and enjoyment of their land that was substantial and unreasonable. However, even assuming that a violation of Resort Services section 6403 constituted a public nuisance pursuant to Zoning Ordinance section 7703, plaintiffs’ suggestion that the court had a responsibility to enjoin any violation of a zoning ordinance raised in a private nuisance action because there was no other method to “enforce the County’s legislative policy,” was baseless. The court found that the relevant ordinances did not leave a vacuum of remedies for the violation of the Zoning Ordinance, such that the only available remedy was for a trial court to enjoin such a violation of the Zoning Ordinance through a private nuisance action filed by private individuals.

Additionally, the court found that it was clear from a review of the trial court’s decision that the trial court considered and mentioned several factors in reaching its determination that the noises generated from the Croquet Lawn, noises that “otherwise comply with the General Sound Level Limits of the County Noise Ordinance,” were not “disturbing, excessive or offensive within the meaning of section 36.414.” The trial court considered the nature of the noise, noting that the sounds were comprised of “music, voices, applause, and laughter,” none of which is unusual or unexpected. The court also noted the evening events concluded at 10:00 p.m., so that “it cannot be said that these sounds extend beyond a reasonable hour.” The court also took into consideration the facts that the noise from the Croquet Lawn events took place intermittently, and the effects of ambient noise on the level of noise in general in the area, including bird noise, sprinklers, and aircraft. The court considered all of these factors, in addition to its finding regarding the level of noise, that “at no time did Croquet Lawn events hosted by Rancho Valencia generate noise exceeding the statutory limit.” Based on the aforementioned factors, the trial court reasonably determined that it “cannot conclude that noise levels from the Resort that otherwise comply with the General Sound Level Limits of the County Noise Ordinance are nonetheless disturbing, excessive or offensive within the meaning of section 36.414.”

Mendez v. Rancho Valencia Resort Partners, LLC, D067899, 2016 WL 4771043 (Cal. App. 4th Dist. 8/26/2016)



In this nuisance abatement action, the State filed an action against defendants and appellants FXS Management, Inc., doing business as “Weedland,” and its principal, Franky Silva. The People alleged that Weedland was an illegal medical marijuana business under the City of Los Angeles Municipal Code, and sought an injunction against the continuing operation of Weedland. Defendants argued that Weedland was a medical marijuana “collective,” and therefore did not fall under the limitations of the Municipal Code. The trial court found that Weedland did fall under the statute, and therefore that the People showed a likelihood of prevailing. The court issued a preliminary injunction, and defendants appealed.

Proposition D defines a “medical marijuana business” as “any location where marijuana is cultivated, processed, distributed, delivered, or given away to a qualified patient, a person with an identification card, or a primary caregiver.” Despite its arguments to the contrary, Defendants failed to cite any sources indicating that Proposition D’s definition of “medical marijuana business” did not include “collectives.” Instead, defendants’ own statements about Weedland demonstrated that it fell under the definition of a medical marijuana business in Proposition D, because it was a location where marijuana was distributed, delivered, or given away to qualified patients or persons with relevant identification cards. Additionally, Defendants failed to present any evidence indicating that medical marijuana patients who formerly received marijuana from Weedland were unable to receive marijuana from medical marijuana businesses within the City of Los Angeles that fell within the exceptions to Proposition D, or from medical marijuana businesses outside the City’s jurisdiction.

Furthermore, the injunction did not limit defendants’ speech or association, other than a requirement that Weedland remove signage from its property advertising its business. As the injunction did not limit defendants’ speech or ability to associate with whomever they choose, it did not infringe on any such rights that may exist under the state or federal constitutions. Moreover, since Proposition D itself applied only to a “location where marijuana is cultivated, processed, distributed, delivered, or given away,” it therefore did not inhibit communication of information about medical marijuana or the association of people interested in marijuana. Accordingly, the court held that Defendants failed to demonstrate that they would suffer grave or irreparable harm from the preliminary injunction, and therefore denied Defendants’ motion.

People v. FXS Mgt., Inc., 206 Cal. Rptr. 3d 819 (Cal. App. 2d Dist. 2016)


The claimant, 730 Eq. Corp., owned a 20,738 square foot, irregularly shaped, vacant parcel of real property at 730–740 Atlantic Avenue in Brooklyn, located in an M1–1 manufacturing district, which had previously been improved with a gas station. The property was subject to a long-term lease with Amoco, which had intended to construct a gas station on the property. In December 2009, New York State Urban Development Corporation, doing business as Empire State Development Corporation (hereinafter ESDC), commenced an eminent domain proceeding to take numerous properties, including the subject parcel, as part of the Atlantic Yards project. The trial court granted condemnation, and awarded the claimant the principal sum of $6,906,000 as just compensation for the taking of the claimant’s real property. Claimant appealed on the ground of inadequacy, from so much of the same judgment as awarded it the principal sum of only $6,906,000 as just compensation for the taking of its property.

The trial court determined that the claimant had established that, in the absence of the project, there was a reasonable probability that the property would have been rezoned to C6–2A. The court found that many of the buildings in the immediate area had been converted to commercial and residential use, that New York City policy was to rezone underutilized industrial sites to allow for commercial or residential development, and that a zoning district with a FAR of 6 would be in scale to this portion of Atlantic Avenue were supported by the record. Furthermore, contrary to ESDC’s contention, the Amoco lease on the property did not prohibit a finding of a different highest and best use than contemplated in the lease, since the property must be valued at “its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time.”

The court’s determination that a 12–story budget hotel would be legally and physically possible and financially feasible on the property was supported by the record, including testimony by ESDC’s own expert regarding alternate designs for such a hotel which would meet the zoning requirements, and the evidence of an increased demand for and development of hotels in Brooklyn around the vesting date. Moreover, the court was not required to accept the opinions of ESDC’s experts on the financial feasibility issue. Accordingly, the court held that the Supreme Court properly rejected ESDC’s appraisal and based its award on the claimant’s appraisal with such adjustments as the evidence supported.

730 Eq. Corp. v. New York State Urb. Dev. Corp., 37 N.Y.S.3d 599 (N.Y. App. Div. 2d Dept. 2016)



This appeal arose from a final judgment granting the City of Frisco’s plea to the jurisdiction and dismissing with prejudice all of the claims of appellants FLCT, Ltd. and Field Street Development I, Ltd. against the City. The owners contended that the trial court erred by granting the plea to the jurisdiction because: their case was ripe for adjudication, they properly alleged a regulatory takings claim for which the City was not immune, they pled sufficient facts to show that a December 2012 zoning ordinance amendment enacted by the City was “null and void” because the City did not deliver them proper notice under local government code section 211.007(c), and the City’s immunity from suit was waived as to Owners’ declaratory judgments act claims because they asserted valid claims under chapter 245 of the local government code.

Specifically, owners contended that the trial court erred by concluding that the City was immune from suit on Owners’ chapter 24 declaratory judgment claims because the alcoholic beverage code did not pre-empt chapter 245 and the section 11.37(d) appeals process in the alcoholic beverage code was not an exclusive remedy. However, the court determined that not only did the alcoholic beverage code permit a city to enact distance regulations falling within the scope of section 109.33, it also allowed the city to grant variances as to the enforcement of those distance requirements. Accordingly, the code did not pre-empt the City’s enactment and enforcement of the distance requirements in this case.

Owners next challenge the City’s contention that the alcoholic beverage code’s remedy for the denial of a permit was exclusive and precluded a chapter 245 action as to the City’s distance ordinance. The City further contended that instead of bringing a declaratory judgment claim on their chapter 245 claims, Owners were limited to appealing the County Court’s denying 7–Eleven’s permit application. Here, Owners have raised both a constitutional claim and a vested property rights claim in the form of a declaratory judgment, which was specifically authorized by statute. They were not seeking to appeal any action by the TABC or any action in connection with a pending permit because 7–Eleven withdrew its application after the county judge denied the proceeding under section 11.37(d). Instead of pursuing this remedy through exhaustion of its appeals, 7–Eleven elected to abandon the permit application, the ground lease, and the prospect of constructing and operating a convenience store on the Property. The court therefore held that the alcoholic beverage code did not provide the exclusive remedy for Owners’ claims based on the City’s enforcement of the distance requirements with respect to the Property.

In their third issue, Owners contended that the trial court erred by determining that the City’s immunity was not waived for their declaratory judgment claim regarding lack of notice. Owners claimed that they pled a valid claim that the December 2012 changes to the City’s zoning ordinance were void for lack of individual notice to them in accordance with the local government code. The court found that additional notice to individual property owners under section 211.007(c) was not required in a case such as this one, in which a zoning ordinance change applied district-wide or across multiple districts without a change in classification of the individual owners’ properties. Accordingly, the court held that Owners failed to plead facts that would waive the City’s immunity for this declaratory judgment claim. 

Lastly, the Owners alleged the trial court erred by dismissing their inverse condemnation claim because they were not claiming that the City has denied them a license or permit to sell alcohol; instead, they claimed that the City unreasonably interfered with their existing property rights by erroneously applying distance requirements to the Property in contravention of Owners’ chapter 245 vested rights. The court determined that whether a valid takings claim had been alleged was a question of law, as factual issues existed that must be resolved by a fact finder, including the extent of the economic impact on the Property and whether the City had a first-in-time policy regarding development. Thus, the court held that the trial court erred by dismissing Owners’ inverse condemnation claim for lack of jurisdiction.

FLCT, Ltd. v. City of Frisco, 493 S.W.3d 238, 276 (Tex. App. 2016)


Plaintiffs T–Mobile West LLC, Crown Castle NG West LLC, and ExteNet Systems LLC filed an action for declaratory and injunctive relief from Ordinance No. 12–11 (“Wireless Ordinance”), which required Plaintiffs to obtain a wireless facility site permit from the City’s Department of Public Works (“DPW”) before installing or modifying any wireless facility in the public right-of-way. The Ordinance required a showing of technological or economic necessity for permit approval and created three “Tiers” of facilities based on equipment size. The court ruled in favor of Plaintiffs on their fifth cause of action, holding that modification provisions of the Ordinance and DPW regulations violate section 6409 of the Middle Class Tax Relief and Job Creation Act. As to Plaintiffs’ third cause of action, the trial court found portions of the Ordinance, conditioning issuance of a permit on economic or technological necessity, were preempted by section 7901; however, the court held the Ordinance’s aesthetics-based compatibility standards were not preempted by sections 7901 or 7901.1.

On appeal, Plaintiffs contended the Legislature preempted local regulation by giving Plaintiffs the right to install telephone lines in the public right-of-way “in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.” Plaintiffs also argued the Ordinance violated the “equivalent treatment” requirement of section 7901.1, subdivision (b), because only wireless providers were required to obtain site-specific permits to install their equipment within the right-of-way. The court found that the exercise of local planning discretion was not used to prohibit the use of the public rights of way, or to abridge any state-conferred rights of telephone corporations, but rather to harmonize the interest and rights of them with cities’ and counties’ other legitimate objectives. Since Plaintiffs could not meet their burden on a facial challenge by suggesting the City may apply the Ordinance so as to prohibit their use of the right-of-way altogether, the court turned to Plaintiffs’ second argument that section 7901 implicitly prohibited any local government regulation of wireless facility aesthetics.

Plaintiffs’ position was that “incommode” meant only physical obstruction of travel in the public right-of-way. The City, contended that the dictionary definition of “incommode” was broader and included “inconvenience, discomfort, and disturbance beyond mere blockage.” The court found that Plaintiffs’ argument rested on the faulty assumption that “use” of a public road means nothing beyond transportation thereon. It noted that public use of the right-of-way was not limited to travel and that streets “may be employed to serve important social, expressive, and aesthetic functions.” Accordingly, the court found “incommode the public use” meant “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, or inconvenience; to unreasonably hinder, impede, or obstruct the public use.” Furthermore, if Plaintiffs were denied a Wireless Permit they could pursue an as-applied challenge. As such, the court held that the trial court did not err in determining the Ordinance was not facially preempted by sections 7901 and section 7901.1.

Plaintiffs also argued that the Ordinance directly conflicted with section 7901.1, subdivision (b), because the City “has singled out wireless equipment” by requiring providers of commercial mobile services alone to obtain site-specific permits while “ignoring the aesthetics of identical equipment installed by other right of way occupants.” The court interpreted section 7901.1 as affirming and clarifying a subset of the local government powers, reserved under section 7901, to regulate telephone lines in the right-of-way. Thus, even if the meaning of “all entities” was not limited to telephone and telegraph corporations, Plaintiffs failed to meet their burden in showing the Ordinance was preempted because section 7901.1 applied only to construction itself. Moreover, with respect to temporary access to the right-of-way for construction purposes, the record indicated that the City uniformly required AT & T, Comcast, PG & E, and Plaintiffs to obtain temporary occupancy permits to access the right-of-way during construction.

T-Mobile West, LLC v. City and County of San Francisco, 2016 WL 4917173 (CA App. 9/15/16)

Plaintiffs, North Carolina corporations engaged in residential homebuilding, brought action seeking declaration that the Town of Carthage exceeded its municipal authority under the Public Enterprise Statutes, by adopting certain water and sewer “impact fee” ordinances. Upon approval of a subdivision of real property, the ordinances trigger immediate charges for future water and sewer system expansion, regardless of whether the landowner ever connects to the system or whether Carthage ever expands the system. In 2003, following a period of rapid population growth, Carthage adopted two similar impact fee ordinances: one pertaining to its water system, and the other pertaining to its sewer system. Under both ordinances, a landowner who seeks to subdivide property and receives “final plat approval,” must pay water and sewer impact fees “based on water meter size according to the town’s fee schedule,” in amounts ranging from $1,000 to $30,000 per connection. The Superior Court granted summary judgment in favor of city, and the developers appealed. The Court of Appeals affirmed.

At the outset the court noted that when determining the extent of legislative power conferred upon a municipality, the plain language of the enabling statute governs. Here, while the enabling statutes allowed Carthage to charge for the contemporaneous use of its water and sewer systems, the plain language of the Public Enterprise Statutes failed to empower the Town to impose impact fees for future services. Specifically, the enabling statutes unambiguously empower Carthage to charge for the contemporaneous use of water and sewer services: not to collect fees for future discretionary spending. Furthermore, Carthage had the authority to charge tap fees and to establish water and sewer rates to fund necessary improvements and maintain services to its inhabitants, which was sufficient to address its expansion needs.

Because the legislature alone controlled the extension of municipal authority, the impact fee ordinances on their face exceeded the powers delegated to the Town by the General Assembly, and thus overstepped Carthage’s rightful authority. The court therefore found the ordinances were therefore invalid and reversed the decision of the Court of Appeals.

Quality Built Homes Inc. v. Town of Carthage, 789 S.E.2d 454 (N.C. 2016)


American Entertainers, L.L.C. operated an adult club named Gentlemen’s Playground (“GP”) in Rocky Mount, and filed a claim against the City regarding the City’s ordinances regulating “Sexually Oriented Businesses.” Specifically, American contended that: GP did not fall within the definition of a Sexually Oriented Business as defined by the City’s ordinances; the City agreed to allow American to operate GP using its current format; the City’s licensing requirements for Sexually Oriented Businesses create an unconstitutional prior restraint on free speech; the City’s licensing requirements unreasonably burdened free speech and infringe on the right of anonymity; the City’s ordinances regulating Sexually Oriented Businesses were unconstitutionally overbroad; the City’s prohibition of persons under the age of 21 from owning or operating a Sexually Oriented Business unconstitutionally restricted free speech; the ordinance prohibiting performances for only one customer imposed an unconstitutional burden on free speech; and, the prohibition against an adult entertainer touching a patron imposed an unconstitutional burden on free speech.

In Counts II, III, and IV, American sought declaratory and equitable relief, arguing that it had an agreement with the City that allowed it to operate in its current format. Despite this, American failed to produce writing that constituted an enforceable settlement agreement. While American stated that the 2003 lawsuit “was settled through an exchange of letters,” American’s only written evidence of an agreement was a single email sent over eight months before the 2003 lawsuit ended. However, the email did not mention the 2003 lawsuit which American purported to have settled through this agreement.

In Count I, American sought a declaration stating that it was not a Sexually Oriented Business under the Sexually Oriented Business Ordinance contained in Rocky Mount, N.C, Code art. VII ch. 13 (2015), but a bikini bar. The record showed uncontroverted testimony and video evidence which demonstrated that performers at GP regularly displayed “specified anatomical areas,” making their performances “adult live entertainment” which, when regularly provided, rendered GP an “adult cabaret” which could not operate without the requisite Sexually Oriented Business License (“SOBL”). Even viewing the evidence in the light most favorable to American, the court found GP was a Sexually Oriented Business and lacked a SOBL.

In Count VII, American facially challenged the Sexually Oriented Business Ordinance’s (“SOBO”) licensing provisions as an unconstitutional prior restraint of free speech and sought a judgment declaring the provisions unconstitutional and a permanent injunction preventing the City from enforcing the licensing provisions. Under the SOBO, a business that regularly provides exotic dancing such as GP could not operate without a Sexually Oriented Business License (“SOBL”). The SOBO, however, provided no appeal or review for an applicant whose application had been neither approved nor denied after fifteen business days had passed. As such, the SOBO unconstitutionally permitted the City to effectively deny a SOBL to businesses like GP by failing to act on the application. This discretion effectively gave the chief of police unreviewable power to deny an applicant the ability to open a business and engage in protected expression. As to severability, because the portion of SOBO § 13-273(e) that impermissibly allowed city officials to indefinitely forestall granting or denying a license was limited to the language “unless and until the chief of police notifies the applicant of a denial and states the reason(s) for denial,” the court found only this language was unenforceable.

American next claimed that Rocky Mount Land Development Code § 503(C)(3)(a) was invalid under North Carolina law and violates due process. Section 503(C)(3)(a) required that adult businesses be separated from each other by at least 500 feet. The North Carolina Court of Appeals held that a North Carolina municipality may not regulate “the distance that must be kept between adult and sexually oriented businesses” because N.C. Gen. Stat. § 14-202.11 pre-empted such municipal regulation. American claimed that the SOBO’s prohibition against providing adult live entertainment for only one customer was unconstitutional. The court determined that the City’s goal of reducing opportunities for illegal activity would “be achieved less effectively” if the city did not ban private adult live entertainment. Moreover, the regulation did not “burden substantially more speech than is necessary,” but instead prohibited only private dances. Therefore, because the provision was narrowly tailored to the City’s substantial interest in regulating the manner of exotic dancing, it was held to have passed constitutional muster.

Accordingly, the court granted summary judgment to American and denied summary judgment to the City only as to American’s challenge to the 500-foot spacing provision in section 503(C)(3)(a) of the Rocky Mount Land Development Code, which violated North Carolina law, and as to the constitutionality of the procedural timing requirements in SOBO § 13-273(e), which violated the First Amendment and was severed from the SOBO.

Am. Entertainers, L.L.C. v. City of Rocky Mt., N. Carolina, 5:14-CV-438-D, 2016 WL 4728077 (E.D.N.C. Sept. 8, 2016)

Petitioner Pennsylvania Independent Oil & Gas Association (PIOGA) initiated this action for declaratory relief against Respondent Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), asking the court to declare that DEP may not apply and enforce Section 3215(c) of the Pennsylvania Oil and Gas Act, also known as Act 13,1 58 Pa. C.S. § 215(c), as part of its well permit application process. Section 3215(b) of Act 13 imposed restrictions on the location of oil and gas wells. Section 3215(b)(1) through (3) of the Act provided for well site and related disturbed area setbacks from certain perennial streams, springs, other bodies of water, and wetlands. Section 3215(b)(4) provided that DEP must waive the setbacks under certain conditions. In Part V of Robinson Twp. I, a majority of the Supreme Court addressed the severability of other provisions in Section 3215, in light of their conclusion that Section 3215(b)(4) was unconstitutional. Among the provisions that the Supreme Court addressed was Section 3215(c), the provision at issue in this case. The Supreme Court concluded that the General Assembly did not intend that the setback provisions apply in the absence of the waiver provision, the Supreme Court concluded that the provisions of Section 3215(b) were not severable—i.e., were “incomplete and incapable of execution in accordance with the legislative intent.” Accordingly, the Supreme Court enjoined application and enforcement of Section 3215(b) in its entirety. 

On appeal, PIOGA contended that the Pennsylvania Supreme Court enjoined the application and enforcement of Section 3215(c) of Act 13 in Robinson Township v. Commonwealth, 623 Pa. 564, 83 A.3d 901 (2013) (Robinson Twp. I). PIOGA’s principal argument was that DEP currently applied Section 3215(c) of Act 13 by requiring well permit applicants to complete the Public Resources Form and comply with the PNDI Policy. PIOGA further contended that by doing so, the DEP was violating the Pennsylvania Supreme Court’s mandate in Robinson Twp. I. 

The court first discussed Section 3215(c), which it noted that like its precursor, Section 205(c) of the Oil and Gas Act of 1984, provided the DEP with the authority to consider the impact a well location may have on public resources, such as publicly-owned parks, forests, and game lands; scenic rivers; and historical and archaeological sites within the Commonwealth. The only provision of Section 3215(c) linking that subsection to Section 3215(b) was paragraph (6), which provides for DEP to consider the impact of the proposed well on “sources used for public drinking supplies in accordance with Section 3215(b).” This provision related to only one of the classes of enumerated public resources that the General Assembly sought to protect in Section 3215(c), with the five others bearing no relation to the water source setback and waiver provisions of Section 3215(b), which were therefore unaffected by the Supreme Court’s mandate in Robinson Twp. I. Accordingly, Section 3215(e), which provides the EQB with the duty to develop regulatory criteria, was enjoined only to the extent that the regulatory criteria would bear on the water source setback and waiver provisions of Section 3215(b). Therefore, the court found that when the DEP considers the impact of a proposed well on a source or sources used for public drinking supplies, it is not constrained to do so “in accordance with” enjoined Section 3215(b). 

As a final matther, the court found that any concerns over how DEP exercised its authority under Section 3215(c) of Act 13 with respect to well permit applications, including whether the DEP followed the regulatory criteria established by the Environmental Quality Board, were better left to the administrative agency process, followed by review in the appellate jurisdiction. 

Pennsylvania Indep. Oil & Gas Assn. v. Cmmw., 321 M.D. 2015, 2016 WL 4547217 (Pa. Cmmw. Sept. 1, 2016)


« Newer Posts - Older Posts »