Editor’s Note: This summary is reposted from Bond Case Briefs here: http://bondcasebriefs.com/2016/08/09/cases/jai-sai-ram-llc-v-planningzoning-bd-of-borough-of-south-toms-river/

Convenience store chain applied for a use variance to construct a combined convenience store and gas station on a piece of property located partially in a highway development zone and partly in a residential zone.

Borough planning/zoning board approved the application. Gas station operator filed an action in lieu of prerogative writs challenging board’s decision. The Superior Court affirmed. Operator appealed. While appeal was pending, the borough amended its zoning ordinance to benefit of chain.

The Superior Court, Appellate Division, held that time of application rule does not apply when the municipality amends the ordinance to specifically permit the use which is the subject of the application.

Time of application rule, providing that development regulations which are in effect on the date of submission of an application for development shall govern review of that application and any decision made regarding such, does not apply when, after a use variance application is filed, seeking relief under existing zoning ordinance, the municipality amends the ordinance to specifically permit the use which is the subject of the application, and the developer is entitled to the benefit of the ordinance as amended.

Where there is a pending appeal challenging the grant of a use variance, the appeal becomes moot by virtue of an amendment to zoning ordinance specifically permitting the use which is the subject of the development application, because the applicant could proceed with the project without the variance.

Jai Sai Ram, LLC v. Planning/Zoning Bd. of Borough of South Toms River, 2016 WL 4005449 (NJ App. 7/27/2016)

Editor’s Note: This summary is reposted from the Illinois Municipal League’s Caselaw Summaries here: http://legal.iml.org/page.cfm?key=16543&parent=4196

The plaintiffs sought to open a gun shop in an unincorporated area of the county. The county ultimately denied the necessary zoning permits to allow the gun shop to open in the proposed location because it was less than 500 feet from a residential unit, in violation of the county’s zoning code. According to the county, the ordinance requiring the 500 feet distance was enacted to minimize the secondary effects of gun shops and to maintain the aesthetics of nearby neighborhoods. The plaintiffs filed suit against the county, claiming that the zoning permit denial violated Equal Protection, and that the zoning ordinance violated the Second Amendment both facially and as applied. Using rational basis review, the district court granted the county’s motion to dismiss for failure to state a claim.

The Ninth Circuit Court of Appeals affirmed in part and reversed in part. The court affirmed the dismissal of plaintiffs’ Equal Protection claim because (1) they failed to state a class-of-one claim in that they neglected to identify a similarly-situated business that was treated differently, and (2) the issue was more appropriately analyzed under the Second Amendment.  The court, however, reversed the district court’s dismissal of plaintiffs’ Second Amendment claims. The court held that the ordinance was subjected to heightened scrutiny — something beyond mere rational basis review — because the ordinance burdened conduct protected by the Second Amendment. Under heightened scrutiny, the county bore the burden of justifying its ordinance and permit denial. Because the district court failed to use heightened scrutiny, the Ninth Circuit remanded the matter for the court to examine the ordinance and to require the county to provide some evidentiary showing that the ordinance and the denial of plaintiffs’ permit meet the legitimate purposes espoused.

Teixeira v. County of Alameda, No. 13-17132 (9th Cir. May 16, 2016).

Editor’s Note: This summary is reposted from the Illinois Municipal League Caselaw Summaries here: http://legal.iml.org/page.cfm?key=10308&parent=4196

The plaintiffs were two companies that wanted to open strip clubs. In 2010, one of the strip clubs applied for the necessary licenses pursuant to the city’s ordinances, while the other (Ferol) did not due to the ordinances’ restrictions. The plaintiffs challenged the ordinances on First Amendment grounds seeking injunctive relief and damages. After the ordinances were repealed, the plaintiffs dropped their requests for injunctive relief, but continued to pursue damages for lost profits.

The city filed a motion for summary judgment, claiming Ferol did not have standing to challenge the ordinances because Ferol was not injured by the ordinances because it had never sought a license. The district court denied the city’s motion on this ground. Thereafter, the district court determined that the ordinances were unconstitutional because they lacked the necessary procedural safeguards required by the First Amendment. The jury then found that Ferol would have opened the club had it not been for the existence of the ordinances and awarded Ferol compensatory damages for its lost profits.

On appeal, the city maintained its argument that Ferol lacked standing to challenge the ordinances because it suffered no injury traceable to the city’s conduct. The Seventh Circuit disagreed with the city’s contention and affirmed the district court’s decision. According to the court, Ferol established that it suffered an injury by alleging an intention to engage in a course of conduct protected by the First Amendment, but that conduct was proscribed by the ordinances, and the company had a credible threat of prosecution under those ordinances. Ferol would have opened an adult entertainment club in 2010 had the city not had its open-ended and unpredictable licensing scheme, and those ordinances had an immediate chilling effect on its protected speech. Thus, Ferol refrained from protected speech in response to the city’s unconstitutional ordinances. Therefore, Ferol had standing to challenge the ordinances.

Six Star Holdings, LLC v. City of Milwaukee, No. 15-1608 (7th Cir. April 13, 2016)

Editor’s Note: This summary is reposted from the Illinois Municipal League Caselaw Summaries here: http://legal.iml.org/page.cfm?key=16762&parent=4196

This consolidated case challenged five ordinances among four municipalities – one (the “motorized mobile billboard ordinance”) limited the type of sign that could be affixed to motor vehicles parked or left standing on public streets, and the others (the “non-motorized mobile billboard ordinances”) prohibited non-motorized, mobile billboard advertising displays within city limits. The former only allowed for advertising signs that were painted directly upon or permanently affixed to the body of a vehicle and they could not extend beyond the length, width, or height of the vehicle. The latter ordinances prohibited “mobile billboard advertising displays” from parking on any public street.

The plaintiffs filed suit against the four municipalities claiming that the ordinances violated the First Amendment, an argument rejected by both the district court and the Ninth Circuit Court of Appeals.   In considering whether the ordinances were content based, the courts found that although the ordinances used the term “advertising,” that word refers to the activity of displaying a message and not to any particular content that may be displayed.  The term “advertising” does refer to only commercial speech because all signs advertise some type of message regardless of whether the message is for commercial purposes. In addition, unlike the ordinances in Reed v. Town of Gilbert, No. 13-502 (U.S. June 18, 2015), the ordinances here did not single out a specific subject matter.  Thus, the ordinances were content neutral.

The courts also found that the ordinances were proper time, place, and manner restrictions. The ordinances were narrowly tailored because they were not substantially broader than necessary to achieve the cities’ stated interests in traffic control, public safety, and aesthetics. Moreover, the ordinances provided ample alternative avenues of communication because they only foreclosed one form of expression – mobile billboards.

Lone Star Security and Video Inc. v. City of Los Angeles, Nos. 14-55014, 14-55050 (9th Cir. July 7, 2016)

Editor’s note: This entry is reposted with permission from the Municipal Minute Blog here: http://municipalminute.ancelglink.com/2016/09/municipalitys-failure-to-follow-its-own.html

Two neighboring property owners filed suit against the Village of Clarendon Hills challenging the approval of a planned unit development (PUD). The PUD at issue involved a multi-unit condominium building in the Village’s B-1 Retail Business District, which was located near the entrance to the Village’s downtown area.  Six months after the preliminary approval of the PUD, the plaintiffs challenged the PUD approval on several grounds, including the failure of the Village to strictly follow the requirements of its own zoning ordinance during the PUD approval process.

The Village approved the preliminary PUD in October of 2013.  The Village’s zoning ordinance contained a provision requiring an applicant to file an application for final PUD approval or a request for an extension within one year of the preliminary PUD approval.  If an applicant failed to do so, the preliminary approval of the PUD would become null and void. In this case, the developer failed to file a final PUD application or request an extension within one year of the preliminary PUD approval.  The developer claimed that the failure to comply with this requirement was due to the uncertainty caused by the plaintiff’s lawsuit.  The Village proceeded to grant the developer final PUD approval in April of 2015, well over a year after the preliminary PUD approval. The Village included in its approval a waiver of the one year filing period and a retroactive extension of time for the developer’s final PUD application in the Ordinance approving the final PUD.

The Plaintiffs alleged that the Village’s failure to strictly follow this one year requirement to file a final PUD application or request an extension of time caused the preliminary PUD approval to become null and void. The plaintiffs also claimed that the Village failed to follow certain setback requirements for transitional uses required under the Village’s zoning ordinance. The plaintiffs contended that, as a non-home rule municipality, the Village must comply with its own zoning ordinance.

In upholding the Village’s approval of the PUD, the court reiterated the general rule that a municipality’s zoning enactment will not be invalidated based solely on the municipality’s failure to follow its own self-imposed requirements. The court emphasized the distinction between the failure of a municipality to comply with its own zoning ordinance and the failure to comply with state statutes governing the municipal zoning process. The court noted that the plaintiffs had not alleged any violation of state statute, only violations of the Village’s own zoning ordinance.  The court therefore held that, even if the Village did fail to follow its own zoning ordinance, such a failure was not sufficient to invalidate the PUD approval.

The plaintiffs also argued that the general rule regarding a municipality’s failure to follow a self-imposed zoning ordinance applied to home rule units only, and was therefore not applicable to the Village.  The court disagreed, referring to those cases that established this general rule which involved non-home rule municipalities.

This case confirms that the zoning decisions of both home rule and non-home rule units in Illinois may not be challenged solely on the grounds that the municipality failed to comply with self-imposed requirements.

Hanlon v. The Village of Clarendon Hills, 2016 IL App (2d) 151233-U  (8/31/2016)

Editor’s Note: This posting originally appeared on the Rocky Mountain Sign Law Blog here:

The Texas Highway Beautification Act permits “political” signs to be displayed no more than 90 days before an election and 10 days after an election.  Because this provision regulates speech based on its content, two weeks ago, the Texas Court of Appeals found the entire Highway Beautification Act violates the First Amendment to the U.S. Constitution.  The court’s decision in Auspro Enterprises, LP v. Texas Department of Transportation is a major blow to state and local efforts to control billboard advertising.

The case began in 2011 when a head shop owner in Bee Cave, Texas, Auspro Enterprises, displayed a sign advocating the election of Ron Paul for President outside of the time limits prescribed by the Highway Beautification Act.   The state Department of Transportation brought an enforcement action against the landowner in county district court to have the sign removed.  The district court ruled in favor of the state.  While the landowner’s appeal was pending, the U.S. Supreme Court granted certiorari in Reed v. Town of Gilbert.  In Reed, the Court found that regulations of speech that contain facial distinctions between subjects and messages were content based and subject to strict scrutiny.

Like most of the state highway advertising laws that came into existence following the Federal Highway Beautification Act of 1965, the Texas law contains a general ban on advertising signs along state highways, with several exceptions.  Among the exceptions to the ban were: signs located in commercial or industrial areas, real estate signs, signs advertising natural or historical sites, on-premises advertising signs, safety warning signs, and the political sign exception in question in the case.

The Texas appeals court found that the political sign exception in the Highway Beautification Act was content based and subject to strict scrutiny under Reed.  The Texas transportation department defended the exception on the grounds that it actually protected political speech by allowing such speech when it would otherwise be prohibited by the act, however, because the law was nearly identical in structure to the Gilbert sign code at issue in Reed, the court did not agree.  The state agreed that the act could not pass strict scrutiny review, and the court thus found the act unconstitutional.  The court went on to find that the provisions in question were not severable from the remaining advertising restrictions in the Highway Beautification Act, and invalidated all of the advertising restrictions in the act.

Strictly speaking, the Texas Court of Appeals’ decision is limited to Texas’s highway advertising law, yet the decision is now the second since 2015 invalidating a state highway beautification act (read about the first here).  The decision also distinguishes an earlier, pre-Reed Texas Supreme Court case upholding the Highway Beautification Act against a similar challenge.  Additionally, the court’s determination that the state’s severability law did not apply in the context of the challenge to the Highway Beautification Act means that the law now requires a legislative fix if it is to remain in effect.

The validity of state highway advertising laws, on which federal transportation funding to the states are conditioned, has been in question since the Court decided Reed.  While several state and federal courts have upheld special restrictions on off-premises advertising, state highway advertising laws such as Texas’s, that contain additional distinctions between forms of noncommercial speech over and above those set forth in the federal law, have fared poorly in the post-Reed era.  It remains to be seen whether other states will see similar judicial challenges to their highway advertising laws, or whether any challenge will be brought against the Federal Highway Beautification Act.  Such challenges could have significant ramifications for federal transportation funding programs, as well as state and local efforts to prevent a proliferation of off-premises billboards along state and federal highways.

Auspro Enterprises, LP v. Texas Dep’t of Transp., 2016 WL 4506161 (Tex. Ct. App. Aug. 26, 2016).

Editor’s note: This posting originally appeared on the Rocky Mountain Sign Law Blog at: http://www.rockymountainsignlaw.com/2016/09/court-utility-pole-warning-signs-forced-speech-violation-first-amendment/#more-2087

A federal court in New York found a town law requiring the placement of warning signs on utility posts violated the First Amendment as a content based restriction on noncommercial speech.

In 2014, the Town of North Hempstead, New York adopted a local law requiring warning signs on utility posts in the town.  The law came about following local opposition to the erection of a new overheard electricity transmission line through the town.  As part of the project, the Long Island Power Authority (LIPA) and PSEG Long Island LLC (PSEG) placed new utility poles along existing right-of-ways.  The new poles were, like the prior poles, treated with a chemical called pentachlorophenol (“Penta”), which was used for the purpose of preventing damage to the wood poles.  Around April 2014, opponents of the project unsurfaced EPA information suggesting that Penta was harmful to human health.  In June 2014, the Town Supervisor announced that the town would consider local bills to require the placement of warning signs on the utility poles advising the public of the dangers of Penta.  The town bill was eventually approved in September 2014.

In January 2015, LIPA and PSEG commenced a judicial action in federal court, alleging violations of the federal and New York constitutional provisions pertaining to freedom of speech, alleging that the local law was vague and overbroad, and also arguing that the town’s law was preempted by state statutes giving the New York State Department of Environmental Conservation jurisdiction over Penta and other pesticides.

On summary judgment, the court found that the warning signs in question constituted noncommercial, as opposed to commercial, speech.  Generally, the government may require mandatory disclosures with respect to commercial speech, but the government’s power to compel certain speech is far more circumscribed in the area of noncommercial speech.  In the court’s words, “the warning signs bear no discernible relationship to the Plaintiffs’ products, services, or other commercial interests, and are therefore outside the purview of the commercial speech doctrine.”  The court also found that the speech in question was not government speech, since the government was not speaker on the signs in question and the government appropriated no funds in order to transmit the message.

Moving on to strict scrutiny analysis, the court found that the town had neither a compelling interest in the warning signs nor were the signs narrowly tailored to the government’s interest.  In the court’s eyes, the town could have chosen to convey its message through television advertising, public education campaigns, or signs on public property, even though the town argued that placing warning signs on the utility poles was more effective.  Per the court, the town failed to establish that there was a serious public safety concern regarding Penta, and further failed to provide evidence supporting the efficacy of its chosen method of addressing public safety concerns.

This case reflects a growing trend in which courts place exceedingly high evidentiary demands on local governments to demonstrate the importance of asserted governmental interests and to justify the means selected to further such interests.  Furthermore, this case has uncovered the most significant problem with Justice Thomas’s suggestion in Reed that local governments cansatisfy strict scrutiny by demonstrating interests in public safety:  the lower courts are generally unwilling to find in favor of the government when strict scrutiny is applied, and there is virtually no clear standard for determining whether a local government’s safety interests are actually compelling.  While the court in PSEG v. Town of North Hempstead may have been swayed by the nature of public opposition to the new utility line, it seems that Justice Breyer’s worst nightmares about content neutrality—that necessary government safety warnings might become unconstitutional—may be coming true.

PSEG Long Island LLC v. Town of North Hempstead, 158 F.Supp.3d 149 (E.D.N.Y. 2016).

Posted by: Patricia Salkin | September 9, 2016

Fed. Dist. Court in NY Finds Village Sign Law Content Based

Editor’s note: This post originally appeared in the Rocky Mountain Sign Law Blog at: http://www.rockymountainsignlaw.com/2016/09/federal-court-finds-new-york-villages-sign-code-content-based

A federal magistrate judge in New York recommended invalidating yet another sign code as content based in violation of the First Amendment to the U.S. Constitution.  In February 2015, a resident of the Village of Perry, New York, Carolyn Grieve, posted signs complaining about the village’s spending policies.  Grieve received a notice of violation from the village.  In April 2015, Grieve filed suit against the village, alleging that the sign code was content based and an unconstitutional prior restraint on speech, and that the village had engaged in selective enforcement of the code against her.  Because the village code allowed the display of several types of commercial signs without a permit while requiring permits for the display of noncommercial signs, the magistrate judge found the sign code to be content based.  As the village offered no rationale to support its code provisions, the magistrate found that the village failed strict scrutiny review, and recommended summary judgment in favor of the plaintiff.

Grieve v. Vill. of Perry, 2016 WL 4491713 (W.D.N.Y. Aug. 3, 2016).

Editor’s Note: This summary is reposted with permission from the RLUIPA Defense Blog at: https://www.rluipa-defense.com/2016/09/prevailing-rluipa-defendant-denied-attorneys-fees

This summer, we reported that Genoa Charter Township prevailed in a lawsuit filed by Livingston Christian Schools (LSC), which claimed that the Township violated RLUIPA’s substantial burden provision, the First Amendment to the U.S. Constitution, and the Fourteenth Amendment’s substantive due process protection. Although the Township denied LSC’s application for a permit to operate its proposed religious school, the court granted the Township’s motion for summary judgment on all claims.

While the court’s order denying attorneys’ fees to the Township is not particularly surprising, the order is succinct reminder of the different standards applied to plaintiffs and defendants in a RLUIPA action.  According to 42 U.S.C. § 1988 (b):

In any action or proceeding to enforce a provision of … the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.] … the court, in its discretion, mayallow the prevailing party, other than the United States, a reasonable attorney’s fee….

(emphasis added).  Generally, as the court noted, a prevailing defendant may only recover attorneys’ fees if a “plaintiff’s action was frivolous, unreasonable, or without foundation…”  This is, of course, a high bar to recovery – much higher than a prevailing plaintiff, which may obtain attorneys’ fees, within the court’s discretion, upon prevailing on a RLUIPA claim.  With this difference in standards for fee recovery, it is easy to see why, in many cases, RLUIPA defendants are motivated to negotiate a settlement in the early stages of a dispute.  The policy behind requiring defendants to meet a higher fee-recovery burden is to prevent a “chilling” effect on potential plaintiffs’ claims and their access to the courts caused by potential liability for substantial legal fees.

The Court’s order in this case is also interesting in terms of how cases in the Sixth Circuit might define a “substantial burden.”  In describing the reasonableness of LSC’s claims, the court noted that “the substantial burden standard, however, is not well established in the Sixth Circuit. While this court found its reasoning persuasive, Living Water is an unpublished decision.”  What is, then, the substantial burden standard in the Sixth Circuit?  At least in the prisoner context, the Sixth Circuit has relied on Living Water Church of God v. Charter Township of Meridian (6th Cir. 2007) to supply the substantial burden framework.  SeeHaight v. Thompson, No. 13-6005 (6th Cir. 2014) (“When prison officials ‘place[ ] substantial pressure on an adherent to modify his behavior and to violate his beliefs, or ‘effectively bar’ his sincere faith-based conduct,…they necessarily place a substantial burden on it.”) (citations omitted).

Livingston Christian Schools v Genoa Charter Township, 2:15-cv-12793-GCS-DRG  (8/23/2016)

Posted by: Patricia Salkin | September 7, 2016

Fed. Dist. Court in NJ orders Township to allow Yeshiva boarding school

Editor’s Note: This summary is reposted with permission from the RLUIPA Defense Blog at: https://www.rluipa-defense.com/2016/09/ocean-nj-ordered-to-allow-yeshiva-boarding-school

In January of this year, Yeshiva Gedola Na’os Yaakov, Inc. (the “Yeshiva”) filed a 79-page complaint in federal court against the Township of Ocean, New Jersey, and the Township’s Zoning Board of Adjustment (the “Township) following the denial of an application to develop a yeshiva with boarding facilities for 96 male students between the ages 18 and 22 in a residential zone, to allow for advanced Talmudic study (the “School”).  The Yeshiva had applied for a use variance, associated bulk variances, and site plan approval for the School, but the Board of Adjustment denied the application after conducting ten hearings over the course of a year and a half. The Yeshiva, among other arguments, pled that the Township’s zoning code was discriminatory because it prohibits religious boarding schools for students over the age of 18 in all districts. More details regarding the Yeshiva’s complaint are available in our prior post.

After a hearing on the Yeshiva’s motion for a preliminary injunction, the court ordered reversal of the Township’s denial, finding the proposed school is an “inherently beneficial use, and the denial of [the] application…  a violation of RLUIPA.”  The reasoning of the court is not provided since the parties waived findings of fact and conclusions of law.  The court granted approval to operate a religious boarding school for no more than 80 students age 18 through 22, subject to several conditions, including:

  • Compliance with site plans previously submitted to the Township;
  • Prohibiting students from bringing cars on campus;
  • Conversion of a gymnasium currently on site to a study hall;
  • Applying for necessary building, electrical and plumbing permits, as well as meeting all ADA requirements; and
  • Making a variety of minor site improvements (fencing, window coating, modification to a parking area, etc.).

The court also referred any claim for damages and attorney’s fees to mediation, but retained jurisdiction over the case until the Township issues a certificate of occupancy. The court’s order in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey, Civ. No. 3:16-00096 (D. N.J. 2016) is available here.

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