The City of Key West barred Buehrle from opening a tattoo parlor in the City’s designated historic district because of an ordinance that limited the number of tattoo parlors, permitting only two tattoo businesses as lawful non-conforming uses. It allowed these as part of the settlement of a prior lawsuit challenging the constitutionality of the ban. The City maintained that given its history, tattoo parlors were inconsistent with the historic character. It also feared that rash tourists would obtain regrettable tattoos, leading to negative association with Key West. Thus, it argued, permitting more tattoo parlors would adversely affect tourism.

Buehrle contended that the act of tattooing was entitled to First Amendment protection and that the ordinance was an unconstitutional restriction on his freedom of expression. The federal district court granted summary judgment for the City, and while agreeing with Buehrle that tattooing constitutes artistic expression protected by the First Amendment it nevertheless found the ordinance to be a reasonable time, place, and manner restriction.

The Eleventh Circuit Court of Appeals reversed and remanded, holding that as a matter of first impression, act of tattooing is artistic express protected by First Amendment; and that the city failed to meet its burden of demonstrating that ban served its alleged significant governmental interest of protecting historic district from deterioration.

While noting that the Court had never addressed whether tattooing was protected speech, it pointed to the Ninth Circuit decision in Anderson v. City of Hermosa Beach, where it held that tattooing was protected speech and that Hermosa Beach could not ban tattoo establishments from operating in the city. 621 F.3d 1051, 1055 (9th Cir.2010). The court joined the Ninth Circuit in holding that the First Amendment protected the act of tattooing because the court found tattooing to be virtually indistinguishable from other protected forms of artistic expression, noting that “A form of speech does not lose First Amendment protection based on the kind of surface it is applied to.”

With respect to the City’s ban, the court noted that a municipality may regulate protected artistic expression only if the regulation is narrowly tailored to serve a significant governmental interest. The City argued that the ordinance’s purpose was to prevent the deterioration of the historic district. Specifically, the fear that allowing additional tattoo establishments to operate in the historic district would adversely impact the “character and fabric” of the district and thus the tourism. The Court observed that the City must demonstrate that it had a reasonable basis for believing that its regulation would further these legitimate interests. A municipality cannot “get away with shoddy data or reasoning. It “must rely on at least some pre-enactment evidence” that the regulation would serve its asserted interests. Such evidence can include anything “reasonably believed to be relevant—including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion.”

The court found that the City had failed to meet its burden. The only support for the City’s claim that the ordinance served significant governmental interests consists of statements by the City’s Director of Planning, in his deposition and an affidavit submitted in support of the City’s motion for summary judgment, asserting that Key West historically prohibited tattoo establishments from operating in the historic district; allowing tattoo establishments to operate there would impact the district’s “character and fabric,” which “could impact tourism”; and tourists might negatively associate Key West with tattoos that they had obtained there but come to regret.

However, the Court noted that these reasons were given in the context of Buehrle’s lawsuit, well after the enactment of the ordinance. They therefore could not serve as pre-enactment evidence that the ordinance served a significant governmental interest. Further, the court still found these statements inadequate because they were unsubstantiated. Significantly, the mere fact that Key West successfully prohibited tattoo establishments in the historic district for approximately forty years did not support the conclusion that allowing more tattoo establishments would cause the district’s historical value to deteriorate and impact tourism. Even though the City conceded the absence of any ill effect as a result of the two tattoo establishments it currently allows to operate in the historic district, t failed to explain why allowing additional tattoo establishments to operate there would sour the district’s historical flavor, especially since the first two apparently have not done so. Particularly, there was a lack of evidentiary support for the City’s assertions concerning tattooing’s purported effect on tourism. The City pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song.

The government bears the burden of showing that the articulated concern has more than merely speculative factual grounds. The City failed to satisfy its burden that it had a reasonable basis for believing that its ordinance would serve the significant governmental interests it propounds.

Buehrle v City of Key West., 813 F3d 973 (11th Cir. CA (FL) 12/29/15)

In 1987, in connection with a proposal to subdivide a 950-acre parcel of real property then owned by the plaintiffs/petitioners Leonard and Habiague in the Town of Union Vale, the Town Planning Board issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA). Thereafter plaintiffs/petitioners sought and received approval from the Planning Board to subdivide a portion of the property, which was developed.

In 2012, Habiague, Leonard, and the plaintiff/petitioner Dryfoos, to whom a portion of the property had been sold, applied for preliminary plat approval to subdivide the remainder of the parcel. The application used the 1987 negative declaration. The Planning Board determined that the 1987 negative declaration was inapplicable to the subject application and, therefore the application was incomplete. Plaintiffs/petitioners the commenced this action to recover damages pursuant to 42 USC § 1983, on the ground that the Planning Board’s determination concerning the negative declaration violated their substantive due process rights. The plaintiffs/petitioners appealed the trial court’s decision granting that branch of the defendant/respondent’s motion alleging a violation of constitutional rights pursuant to 42 USC § 1983; and (2) from an order of the same court which denied their motion for leave to renew their opposition to that branch of the defendant/respondent’s motion alleging a violation of constitutional rights pursuant to 42 USC § 1983.

The appellate court noted that to establish a violation of substantive due process rights, plaintiffs are required to establish “a cognizable or vested property interest, not the mere hope of one. Here, the plaintiffs/petitioners were required to establish a “legitimate claim of entitlement’ ” to have the 1987 negative declaration applied to their present application for preliminary plat approval. Because the Planning Board’s discretion in this respect was not “so narrowly circumscribed” the application of the 1987 negative declaration to the present project was “virtually assured,” the plaintiffs/petitioners failed to allege a cognizable property interest.

Leonard v Planning Bd. of Town of Union Vale, 136 AD3d 873 (NYAD 2 Dept 2/17/2016)

Editor’s Note: This posting is republished with permission from the RLUIPA Defense Blog

The U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of a church’s claim that denial of a setback variance substantially burdened its religious exercise under the Religious Land Use & Institutionalized Persons Act (RLUIPA). In 2012, a religious congregation, Reconciling People Together in Faith Ministries, LLC (the “Congregation”), was formed in the City of Newport News, Virginia. The Congregation initially worshipped at a local business owned by its pastor, but sought to find an alternate location for religious use. The Congregation found a 0.32 acre property, owned by Andon, LLC, at 6212 Jefferson Avenue in the City that it believed would meet its religious needs. The Property is in the City’s commercial zoning district permitting a “community facility” subject to four conditions, one of which the Property does not meet: “no building or structure, nor accessory building or structure is located within 100 feet of any side or rear property line which is zoned single-family residential.”

Although the Congregation was aware that the Property did not meet one of the zoning requirements for “community use,” it entered into a lease agreement with Andon that was contingent upon Andon obtaining City approval to allow a church facility on the Property. To this end, Andon filed an application to vary the setback requirement with the City’s Board of Zoning Appeals (the “BZA”). However, the City Codes Compliance Department recommended denial of the application “because the property could be used for other purposes without a variance, and because denial of a variance would not cause Andon to suffer a hardship unique among other commercial property owners in the vicinity.” The BZA adopted the Compliance Departments recommendation and denied the application.

Andon and the Congregation both sued alleging a violation of RLUIPA’s substantial burden provision, because the variance denial caused “delay in obtaining a viable worship location” and “uncertainty as to whether … the [C]ongregation will be able to go forward with the lease of the [P]roperty.” According to the Congregation, it “could not find a[n alternative property] that was the appropriate size, location, and price” to be used by the Congregation as a place of worship, since “[m]any of the [alternative] buildings were too large and too expensive for [the] young congregation.”

The Fourth Circuit concluded that the Congregation could not establish a substantial burden claim because it never had a reasonable expectation that it could use the Property as a church. Important to the Court’s analysis, the Congregation was aware of the setback requirement before it agreed to lease the Property. Also, prior to Andon’s filing of the variance application, the City’s Zoning Administrator informed it that the application would be denied for failure to meet the setback requirement. “Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships.”

The Court also decided that the Congregation’s alleged inability to find another suitable property did not affect the result. According to the Court, the absence of alternate property capable of accommodating religious needs will not by itself support a substantial burden claim under RLUIPA. Further, the Court observed that if it “agreed with the plaintiffs that the BZA’s denial of a variance imposed a substantial burden on their religious exercise, we effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations. Such a holding would usurp the role of local governments in zoning matters when a religious group is seeking a variance, and impermissibly would favor religious uses over secular uses.”

Andon, LLC v City of Newport News, Va., 813 F3d 510 (VA 2/9/2016)

Petitioners/plaintiffs commenced a proceeding to review resolutions adopting the Comprehensive Plan for the Village of Woodbury and Local Law Nos. 3 and 4 of 2011 of the Village of Woodbury (hereinafter “the Zoning Amendments”), and for a judgment declaring that the Comprehensive Plan and the Zoning Amendments were void and unenforceable. Specifically, the petition/complaint alleged that the Comprehensive Plan and the Zoning Amendments were void and unenforceable on the ground that the Village of Woodbury Board of Trustees failed to strictly comply with the procedural and substantive mandates of the State Environmental Quality Review Act, and on the ground that the Board of Trustees failed to comply with General Municipal Law § 239–m. The petition/complaint also alleged, in the fourth cause of action, that the Comprehensive Plan and the Zoning Amendments amounted to unconstitutional exclusionary zoning, and sought a judgment declaring that the Comprehensive Plan and Zoning Amendments are void and unenforceable. The respondents/defendants Village of Woodbury, New York, the Village of Woodbury Board of Trustees, the Village of Woodbury Planning Board, and Gary Thomasberger moved to dismiss the fourth cause of action. The Supreme Court dismissed the fourth cause of action and awarded summary judgment to the petitioners/plaintiffs on the fourth cause of action. The court also granted the petition to annul the Comprehensive Plan and the Zoning Amendments.

The court first noted that 6 NYCRR 617.6(a)(4) permits an agency to waive the requirement for an environmental assessment form (hereinafter EAF) if a draft environmental impact statement is prepared or submitted. Because a draft environmental impact statement was prepared in this case, the failure to prepare an EAF did not amount to a failure to literally comply with SEQRA’s procedural requirements. Furthermore, the Board of Trustees satisfied SEQRA’s substantive requirements by analyzing a reasonable range of alternatives. Accordingly, the court found that the Supreme Court should have denied the petition to annul the Comprehensive Plan and the Zoning Amendments on the ground that the Board of Trustees failed to strictly comply with the procedural requirements of SEQRA.

As to the Board of Trustees’ alleged failure to comply with General Municipal Law § 239–m, the court found that no record evidence contradicted the Village Planner’s assertion that the report of final action was submitted following enactment of the Comprehensive Plan and the Zoning Amendments. Additionally, the revisions made to the Comprehensive Plan and the Zoning Amendments after referral were “embraced within the original referral.” The court therefore found that the Supreme Court should have denied the petition/complaint to annul the Comprehensive Plan and the Zoning Amendments on the ground that the Board of Trustees failed to comply with General Municipal Law § 239–m.

Lastly, the court found triable issues of fact existed as to whether the Comprehensive Plan and the Zoning Amendments amounted to unconstitutional exclusionary zoning. Thus, the Supreme Court properly denied the appellants’ motion for summary judgment dismissing the fourth cause of action, but erred in searching the record and awarding summary judgment to the petitioners/plaintiffs on this cause of action.

Kiryas Joel v. Village of Woodbury, 2016 WL 1576897 (NYAD 2 Dept. 4/20/2016)

Respondent Westhampton Property Associates, Inc., owns and operates a sand and gravel mine partially located within the “core preservation area” of the Long Island Central Pine Barrens and also within the Town of Southampton. In November 2011, Westhampton applied to the Central Pine Barrens Joint Planning and Policy Commission for an extraordinary hardship waiver to permit it to vertically expand the mine depth from 44 feet above sea level to 26 feet above sea level. In a determination dated October 17, 2012, the Commission granted Westhampton the extraordinary hardship waiver. The Long Island Pine Barrens Society, Inc., Richard Amper, in his capacity as the Society’s Executive Director and in his individual capacity, and Robert McGrath and Thomas Casey, as members of the Board of Directors and in their individual capacities, commenced this article 78 proceeding to review the Commission’s determination. The Supreme Court denied the petition on the ground that the petitioners lacked standing to maintain the proceeding, and, in the alternative, held that the challenged determination was not arbitrary, capricious, or an abuse of discretion.

The court first determined that the Supreme Court erred in holding that the petitioners lacked standing to challenge the subject determination. Here, the petitioners established that Amper, in both his individual and professional capacities, used and enjoyed the Pine Barrens to a greater degree than most other members of the public. The threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens fell within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993. Additionally, the Society met the second and third prongs of the organizational standing test, in that its interests in the instant proceeding were germane to its purposes, and that neither the asserted claim nor the appropriate relief required the participation of the individual members. Thus, both Amper and the Society had standing to challenge the determination at issue.

Regardless of this error, the court was found to have properly dismissed the challenge on its merits. Here, the record demonstrated that Westhampton’s proposed expansion, located in the “core preservation area,” required an extraordinary hardship waiver. The court found the Commission’s determinations that Westhampton established that any hardship was not self-created, and that Westhampton had no other beneficial use of the property absent the hardship waiver were not arbitrary and capricious. The record likewise supported the Commission’s determination that the subject property, used as a mine since 1981, would be subject to various zoning restrictions if the property were used as anything else other than as a mine. Accordingly, the Supreme Court was held to have correctly denied the petition and dismissed the proceeding.

Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning and Policy Commission, 2016 WL 1576954 (NYAD 2 Dept 4/20/2016)

 

Claudia Lee & Associates (CLA) is an Indiana Corporation that owned an outdoor advertising sign in Kansas City, which it installed in 2005 in a parking lot of a commercial establishment. The commercial property upon which the sign is located is zoned B3–2 and B1–1 by the City of Kansas City Zoning and Development Code. CLA’s Wornall Road sign was considered a legal nonconforming sign because it was erected prior to the Code being amended to exclude such signs from districts zoned B3–2 or B1–1. In November of 2010, a resident living near CLA’s Wornall Road outdoor advertising sign complained to Kansas City’s Planning and Development Department that the sign had been blank for at least thirty days. On March 3, 2011, the City received notice from CLA that new advertising had been placed on the sign. The City’s compliance staff documented that the new advertising message was solely promoting rental of the sign itself. On March 9, 2011, the City sent written notice to CLA that, from November 23, 2010, until March 3, 2011, CLA’s Wornall Road outdoor advertising sign had remained “blank” as defined by 88–445–14–B.5(g)(1). The notice offered no opportunity to cure the alleged infraction and ordered the sign removed within thirty days of the date of the notice. CLA appealed the notice of violation to the BZA. The BZA, and then the circuit court, both affirmed the City’s decision.

Section 88–445–14 of the Code at issue contained various regulations providing that, if a legal nonconforming outdoor advertising sign remains blank for a continuous period of ninety days, the sign is considered abandoned and will no longer be deemed a legal nonconforming sign. CLA argued that a provision of this Code, providing that “the city planning and development director must provide written notice to the signs record owner of the signs deficiencies, and the owner must be given 30 days from the date of the notice to remove the sign or bring the sign into compliance with these requirements,” applied to blank signs as well. The court resolved the ambiguity in favor of the landowner, and therefore found that the City must provide written notice to a sign’s record owner of alleged deficiencies and must give the sign owner thirty days from the date of that notice to bring the sign into compliance. Accordingly, it held that the circuit court erred in affirming the BZA’s determination that CLA was not entitled to a thirty-day cure period.

CLA next alleged that it forwarded, and BZA received, CLA’s open records request and BZA failed to respond to the request within three days, in violation of the Sunshine Law. The BZA countered that, because the BZA was merely a department within the city of Kansas City, it was not a legal entity with the capacity to be sued in an independent action such as was alleged in CLA’s open records claim. The court found that CLA failed to plead sufficient facts for this claim because CLA “did not define and isolate the issue of whether the officials had purposely violated the statutes.”

Claudia Lee & Associates v. Kansas City Board of Zoning Adjustment, 2016 WL 1442382 (MO. App. 4/12/2016)

Posted by: Patricia Salkin | April 20, 2016

NY Appellate Court Dismisses Mandamus Action for Lack of Standing

Eastview Properties, Inc. brought a mandamus action to compel the Town of Chester Planning Board to place a subdivision application on its agenda and render a determination on its application. Petitioners appealed from an order of the trial court which granted the motion of the Town of Chester Planning Board to dismiss the petition. The court noted that a party has standing where it has an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request. Where a claim of standing is based upon the adverse impact of challenged administrative action, a petitioner must show that he or she will suffer a harm that is in some way different from that suffered by the public at large and that the alleged injury falls within the zone of interest sought to be promoted or protected by the statute under which the government agency has acted. Here, the petitioners failed to make that showing and, therefore, failed to meet their burden of establishing that they had standing to commence this proceeding. Accordingly, the Supreme Court properly granted the motion of the respondent Town of Chester Planning Board to dismiss the petition.

Eastview Properties, Inc. v. Town of Chester Planning Bd, 2016 WL 1442248 (NYAD 2 Dept. 4/13/2016)

 

The Supreme Court of Connecticut granted the petition of defendant, the Planning and Zoning Commission of the Town of Lisbon, for certification for appeal on the limited questions of whether the Appellate Court properly concluded that the trial court correctly determined that Brenmor Properties, LLC’s noncompliance with a road ordinance did not constitute a valid ground on which to deny its modified affordable housing application; and whether the Appellate Court correctly determined that the trial court properly ordered the commission to approve the plaintiffs subdivision application ‘as is’ rather than allowing the commission, on remand, to consider appropriate conditions of approval.

Brenmor Properties, LLC v. Planning and Zoning Com’n of the Town of Lisbon, 320 Conn. 928 (CT 3/23/2016)

 

Posted by: Patricia Salkin | April 18, 2016

NY Appellate Court Upholds Denial of Area Variance

Petitioner property owners appealed denial of their application for setback variance. The trial court denied the petition and dismissed the proceeding and the owners appealed. The appellate court affirmed the denial holding that the zoning board had a rational basis for denying owners’ application, and that the denial of owners’ application was not arbitrary and capricious.

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted, and the court noted that in applying the balancing test, the board is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational.

Here, the Board performed the balancing test and its conclusion that the detriment to the surrounding neighborhood posed by granting the requested variance outweighed the benefit to the petitioners had a rational basis and was supported by the record. In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by the petitioner could be achieved by other methods.

The petitioners further contended that the Board’s determination denying their application for an area variance was arbitrary and capricious because it had granted similar applications. “The fact that one property owner is denied a variance while others similarly situated are granted such variances, does not, in and of itself, indicate that the difference in result is due to impermissible discrimination or to arbitrariness.” Here, the petitioners’ failed to establish that the Board “reached a different result on essentially the same facts.” While it would have been advisable for the vice chairman of the Board to recuse himself from the proceeding if he felt that he had any bias against the petitioners, there was no “proof that the outcome flowed from the alleged bias.”

Harris v Zoning Bd. of Appeals of Town of Carmel, 137 AD3d 1130 (NY 3/23/2016)

 

The Town of Granville, West Virginia has an ordinance limiting new mobile homes and house trailers to existing mobile home parks. Russell and Smith (collectively “Russell”), wished to place a mobile home on their property, they requested a variance, which was denied. Russell appealed. The Circuit Court found the Town had authority under W. VA Code § 8–12–5(30) [2012] to adopt an ordinance regulating the placement of mobile homes and house trailers.

Upon review, the State Supreme Court affirmed finding the statute constitutional and upholding the Town’s action as within its authority when it adopted an ordinance restricting new mobile homes and house trailers to existing mobile home parks. Because the Town did not enact “residential design standards,” West Virginia Code § 8A–11–1 did not apply to the case.

Russell had contended that another ordinance, W Va.Code § 8A–11–1(c), meant mobile homes and house trailers were permitted everywhere site-built homes are permitted. According to this interpretation, West Virginia Code § 8A–11–1 impliedly repealed West Virginia Code § 8–12–5(30) because the two statutes were irreconcilable, and West Virginia Code § 8A–11–1 was enacted after West Virginia Code § 8–12–5(30). Further, that because West Virginia Code § 8–12–5(30) was no longer in effect, the Town was without authority to adopt an ordinance regulating the placement of mobile homes and house trailers. By contrast, the Town contended West Virginia Code § 8–12–5(30) remained in effect and the Town had authority under it to regulate the placement of mobile homes and house trailers. The Town further asserted West Virginia Code § 8A–11–1 did not apply because the statute was limited to “residential design standards.”

The court noted that the issue was whether West Virginia Code § 8A–11–1 impliedly repealed West Virginia Code § 8–12–5(30)’s grant of authority to regulate the placement of mobile homes and house trailers. In assessing the issue, the court noted “repeal by implication is not favored in law.” The implication of repeal must be “clear, necessary, irresistible, and free from reasonable doubt.” “To repeal a statute by implication there must be such positive repugnancy between the provisions of the new statute and the old statute that they can not stand together or be consistently reconciled.” West Virginia Code § 8A–11–1 was limited to “residential design standards.” While the statute provided no definition for “residential design standards” significance and effect must be given to every section, clause, word or part of the statute. “In the construction of a legislative enactment, the intention of the legislature is to be determined, not from any single part, provision, section, sentence, phrase, or word, but rather from a general construction of the act or statute in its entirety.” Chapter 8A of the West Virginia Code encompasses differing types of land use planning ordinances. It listed “prohibiting specific land uses” separately from “establishing design standards and site plan approval procedures.” Thus, proscribing permitted uses of land was necessarily different from adopting design standards, because an interpretation of a statutory provision, which renders it a “mere repetition”, must be rejected.

Likewise, the Court noted that local governments may regulate “the height, area, bulk, use and architectural features of buildings, including reasonable exterior architectural features and reasonable aesthetic standards for factory-built homes,” so long as the “process and standards” for such regulations are no more strict than those for site-built homes. Clearly, the term “residential design standard,” as used in West Virginia Code § 8A–11–1, pertained to the minimum standards in terms of architecture, aesthetics, size, etc., to which permitted uses must adhere. Where mobile homes and trailers are permitted, West Virginia Code § 8A–11–1 prohibits local governments from applying one design standard to site-built homes and another, more stringent standard, to mobile homes. However, the statute did not say or imply mobile homes and house trailers must be a permitted use of land everywhere site-built homes are permitted. Russell’s argument contradicted the Legislature’s intent to provide municipalities and counties “flexibility when authorizing land development and use.” By contrast, West Virginia Code § 8–12–5(30)’s plain terms authorize municipalities to proscribe permitted uses of land to regulate the placement of mobile homes and house trailers.

The court concluded West Virginia Code § 8–12–5(30) and West Virginia Code § 8A–11–1 implicated two different types of land use planning ordinances. Thus, the two statutes were not irreconcilable, and West Virginia Code § 8–12–5(30) was not impliedly repealed. Here, West Virginia Code § 8–12–5(30) remained in effect granting authority to municipalities to regulate the placement of mobile homes and house trailers.

Russell v Town of Granville, 2016 WL 1098983 (W Va 3/15/2016)

 

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