This post was authored by Amy Lavine, Esq.

A Sixth Circuit decision issued in March, 2018 is the latest legal development in the decade-long dispute over a drug and alcohol rehabilitation facility in Detroit. The litigation, Get Back Up, Inc. v. City of Detroit, involves a facility located on the outskirts of a residential neighborhood where it was required to obtain a conditional use permit, as were other nontraditional residential uses like fraternities and apartments.   Although the city planning department granted Get Back Up’s application for conditional use permit in 2007, the board of zoning appeals reversed and denied the permit after neighborhood residents appealed. Get Back Up brought its first lawsuit against the city at this point. While the case was pending, the city agreed to allow Get Back Up to operate on a provisional basis, but the city then shut it down against as soon as Get Back Up lost its case. Several months later, Get Back Up submitted a new permit application and a similar pattern emerged: the planning department approved, neighbors appealed, and the board reversed. Get Back Up then filed its second lawsuit, this time bringing claims under the FHA and ADA, rather than challenging the validity of the zoning law. The district dismissed, finding no grounds for injunctive relief, and Get Back Up then appealed, bringing us to this case.

The court found that Get Back Up successfully carried its initial burden of making a prima facie case of discrimination, based on the board’s successive decisions reversing its permit approvals and on evidence that some of its opponents, as well as one board member, made comments at the public hearing that reflected animus toward recovering addicts. One resident, for example, questioned who “would buy a house in the neighborhood where you’re talking about hundreds and hundreds and hundreds and hundreds of drug addicts and possibly felons are two blocks from the school you plan on sending your kid.”

Discriminatory public opposition doesn’t automatically “taint” a zoning decision, however, and the city offered four non-discriminatory reasons for denying Get Back Up’s permit requests: “(1) complaints about trash and debris outside Get Back Up’s facility, (2) Get Back Up residents’ allegedly disruptive behavior during the years the facility was in operation, (3) concerns about neighborhood property values, and (4) concerns about the number of clients Get Back Up would be allowed to house if its permit was approved.” These concerns were all raised by neighborhood residents during the public hearing, and the court found substantial evidence in the record that the board had been motivated by these nondiscriminatory reasons and not by animus in reaching its decision.

 

Because the board carried its burden in rebutting Get Back Up’s prima facie case, the burden then shifted back to Get Back Up to prove that the board’s stated reasons were mere pretexts. Here, Get Back Up was unable to meet its burden, however. While it offered a host of arguments denying that it was responsible for the trash and the other complaints raised by neighborhood residents, it didn’t provide any reason to believe that the board’s reliance on these concerns was less than genuine. As the court explained:

Even if Get Back Up did not dump the trash and Dr. Taylor did not know about the residents’ alleged actions, it does not mean that the Board’s reliance on the neighbors’ allegations is suspect…. The neighbors claimed there was trash, bad behavior, and risk of a decline in property values—and they offered testimony and evidence to back it up. Get Back Up has not shown that these concerns were so implausible as to suggest that the Board acted from discriminatory motives.

The board, accordingly, did not violate the FHA or ADA in denying Get Back Up’s permit request, and the district court correctly decided not to grant injunctive relief.

Get Back Up, Inc. v. City of Detroit, 2018 WL 1568528 (6th Cir. 3/30/18)

This post was authored by Matthew Loeser, Esq.

Plaintiff, a resident of Anderson County, Tennessee, raised and bred chickens to “show quality standards.” Steve Page, an official from the Anderson County Public Works Office visited plaintiff’s property after receiving complaints from his neighbors about noise and odor, and plaintiff cleaned up the property and removed several roosters. After the neighbors complained, defendant Yeager, Law Director for Anderson County, Tennessee, threatened legal action against plaintiff, claiming that his activities constituted a “public nuisance.” In response, plaintiff reduced his flock of chickens from approximately seventy to thirty chickens and built a fence. Nevertheless, at an Anderson County Commission public session, plaintiff’s neighbors and defendant Yeager asserted that plaintiff’s activities constituted a “public nuisance” and needed to be referred to the Tennessee Department of Environment and Conservation (“TDEC”).  Plaintiff filed a motion for summary judgment in the Chancery Court for Anderson County based on defendant Yeager’s failure to identify evidence in support of the lawsuit’s allegations, which was granted. Plaintiff then commenced this action asserting a violation of his constitutional rights under 42 U.S.C. § 1983 and a malicious prosecution claim under Tennessee state law.

The court first noted that defendants did not initiate a criminal prosecution but instead were merely involved in a civil proceeding. Accordingly, plaintiff failed to satisfy the federal requirements for pleading a malicious prosecution claim. Plaintiff next contended that defendants’ civil lawsuit interfered with plaintiff’s use of his property and violated his constitutional rights generally, in violation of U.S.C. § 1983; however, plaintiff failed to state any facts in his complaint to support a general § 1983 claim. Accordingly, the court granted defendant’s motion to dismiss with respect to the § 1983 claim. Furthermore, the court held that because the underlying suit was resolved on procedural grounds, it was not resolved in a manner favorable to plaintiff, so plaintiff failed to state a claim for malicious prosecution upon which relief can be granted.

Haire v Anderson County, 2018 WL 1475606 (ED TN 3/26/2018)

 

This post was authored by Matthew Loeser, Esq.

Plaintiff Charles S. Hayes filed an amended verified complaint seeking declaratory relief against the Board of Commissioners of the County of St. Joseph following the denial of Hayes Towers’ Special Use Permit to build a telecommunications tower on a residential plot of land that it leased for that purpose. Hayes Towers moved for summary judgment arguing that the decision to deny the Permit was in violation of the Telecommunications Act of 1996 (“TCA”) because it was not based on “substantial evidence.” The Court denied Hayes Towers’ motion for summary judgment and remanded the matter. On appeal, Hayes Towers argued that it was improper for the Court to remand the matter because such a remedy was never sought by the defense or contemplated in the parties’ briefs, and that had the Court rendered a determination on the merits as to whether substantial evidence existed in the stipulated record to support the Permit’s denial.

At the outset, the court noted that it was uncontested that the defense never requested a remand and the propriety of this remedy was never briefed by the parties until the present case. The record reflected that the Council violated the TCA by not providing sufficiently contemporaneous reasons for denying the Permit, and that any further reasonable efforts by Hayes Towers were so likely to be fruitless that it would have been a waste of time even to try. The Court therefore agreed with Hayes Towers that remanding this case would result in further unwarranted delay and served no useful purpose. The only contrary evidence in the record in this respect consisted of a few residents who spoke about their fears that the tower could reduce their property values, and another resident who cited national statistics concerning the undesirability of buying a home near a tower which did not relate directly to the properties at issue. The court found that these generalized concerns could not be weighed the same as a qualified expert’s testimony concerning the effect of the tower on home values. Accordingly, the court held the Council’s rejection of the Special Use Permit application was not based on substantial evidence in the written record as required by the TCA, granted Hayes Towers’ motion for reconsideration, and ordered the Special Use Permit be granted.

Charles S. Hayes, Inc. v Commission of the County of Sr. Joseph, 2018 WL 1471901 (ND IN 3/26/2018)

This post was authored by Matthew Loeser, Esq.

In 2012, Washington voters approved Initiative 502, which was codified within Washington’s Uniform Controlled Substances Act (UCSA). The UCSA legalized the limited production, processing, and sale of recreational marijuana to persons twenty-one years and older, and created a regulatory state licensing system through the Washington State Liquor and Cannabis Board. In 2014, Clark County passed an Ordinance, which banned the retail sale of recreational marijuana within unincorporated Clark County. Emerald challenged the Ordinance and sought declaratory and injunctive relief in Cowlitz County Superior Court. Emerald argued that the UCSA preempted the Ordinance. The Superior Court ruled that the UCSA did not preempt the Ordinance, and Emerald appealed. While that appeal was stayed, Emerald began Board-licensed retail sales of marijuana in the County. The County ordered Emerald to cease all sales of marijuana and marijuana products and revoked Emerald’s building permit. The Clark County Hearing Examiner and the Clark County Superior Court affirmed the County’s decision.

In its preemption argument, Emerald first argued that the Ordinance prohibited what the UCSA permitted. The court found that while the UCSA permitted the retail sale of marijuana, it did not grant retailers an affirmative right to sell marijuana; nor did the UCSA create a specific right to a retail license in the County, or authorize retail stores in the unincorporated parts of every county. Furthermore, nothing in the UCSA stated that a county could not prohibit retail recreational marijuana sales.

Emerald next contended that the Ordinance unconstitutionally conflicted with the UCSA because it went against the will of voters and the legislative purpose of the state law. Here, however, there was no evidence of legislative intent to regulate the location of retail stores within counties. Thus, a ban on retail stores within unincorporated Clark County did not, by itself, go against the purpose and intent of the legislature. Moreover, subsequent amendments to the Ordinance indicated that the legislature intended to preserve the right of local governments to ban retail stores.

Lastly, the court found that the UCSA did not expressly or implicitly preempt the County Ordinance. Here, absent clear statutory language to the contrary, the court found that the County retained jurisdiction in all matters not explicitly delegated to the Board. Furthermore, the court held that the Board’s authority to determine the maximum number of retail locations allowed under state law did not give it the power to determine where a store is located within a given jurisdiction. Moreover, the legislature rejected a proposed I-502 amendment containing explicit zoning preemption language. Because the court determined that state law had not explicitly or impliedly occupied the entire field, the County retained its zoning authority. The trial court’s order granting summary judgment was therefore affirmed.

Emerald Enterprises, LLC v Clark County, 413 P 3d 92 (WA App 3/13/2018)

This post was authored by Matthew Loeser, Esq.

 

Verizon brought this lawsuit against Oconee County, Georgia, and the Oconee County Board of Commissioners, challenging the decision of the Board to deny its application for a special use permit to construct a cellular communications tower. Verizon alleged that the Board’s decision had the effect of prohibiting its provision of personal wireless services, and that it was not supported by substantial evidence, as required by the Telecommunications Act. The District Court dismissed the action as time-barred, reasoning that the thirty-day limitations period began to run when the Oconee County Clerk, pursuant to custom, entered a document evidencing the Board’s vote in the County’s Ordinances and Resolutions books.

 

The court first noted that the Board had plenary power over the August 5 minutes: it could approve the minutes, revise them, or postpone its approval decision until the next month’s meeting in October. Here, the record reflected that the Board approved the August 5 minutes in full. The minutes were placed on its website, in accordance with the Open Records Act. The Open Records Act provided Verizon with constructive notice as to when the Board’s August 5 decision to deny its permit application would become “final.” The Act also informed Verizon that the decision would become final if the Board approved the minutes of the August 5 meeting at its next monthly meeting, on September 2. Despite this, according to the District Court, Verizon, rather than relying on minutes approved pursuant to law, should have “diligently” sought the Document, which was placed in records according to customs and practices nowhere established by law or memorialized for public access. Accordingly, the court found that the Board’s action became final when the Board approved the minutes of the meeting at which it voted on Verizon’s application, and not when the Clerk placed the Document in Book 20.

 

Lastly, the court found that the only possible “written notice of denial” constituting Oconee County’s “final action,” and thereby triggering the thirty-day clock, occurred when the Board approved the minutes of the August 5, 2014 meeting, on September 2. Verizon’s action, filed on September 24, was therefore timely. Accordingly, the District Court erred in dismissing Verizon’s case.

 

Athens Cellular, Inc. v Oconee County, 886 F3d 1094 (11th Cir CA 4/2/2018)

This post was authored by Matthew Loeser, Esq.

In this case, Plaintiffs Laveranues Coles and his associated company, Trouble Livin Life, LLC, sought reconsideration of an Order in which the Court granted summary judgment in favor of the Defendant, City of Jacksonville. In that Order, the Court determined that because Coles had not received a final decision from the City on his zoning exception applications, his claims were not ripe. Additionally, the Court found that Coles had failed to show that obtaining a final decision from the City was futile, thereby otherwise excusing him from presenting a ripe controversy to the Court.

On appeal, Coles contended that the Court erred in ruling that he failed to allege a procedural due process violation. In his Complaint, Coles claimed that the City failed to grant his requested zoning exceptions based on the City’s alleged disdain for Coles’ intended use of the property, which was as a dancing entertaining establishment (DEE) serving alcohol (aka a “bikini bar.”). The court found that these allegations described a substantive due process or an “as applied” challenge to the application of the City’s zoning code to Coles; however, and this claim was adjudicated by the Court.

Coles next claimed that the Court erred in ruling that he failed to present sufficient evidence that any attempt on his part to seek a final decision from the City on his zoning exceptions would be futile. Specifically, Coles challenged the limited consideration the Court gave to the testimony of his proffered expert, Paul M. Harden, who opined that it would be futile for Coles to seek additional zoning variances as directed by the City’s ultimate zoning decision maker, the LUZ Committee. The LUZ Committee advised Coles that it was unable to make an ultimate ruling on his request for zoning exceptions because he needed to apply for an additional distance variance – which he never did. As such, the court rejected Coles’ futility argument.

Lastly, Coles argued that the Court erred in failing to analyze the applicability of the zoning code’s grandfather clause, Jacksonville, Florida Ordinance Code § 656.110(h) (City Code), to his application for a zoning exception. Pursuant to 656.136(c), the City Code “when the use requires licensure or other approvals by the State or any other governmental entity, such as a liquor license approval…the zoning exception, variance or waiver granted in connection with such use shall not be transferrable and shall be granted to the applicant or State license holder.” Accordingly, the court upheld the finding that Coles was required to seek a zoning exception for the service of alcohol on the Property. As such, Coles’ Motion for Reconsideration was denied.

Coles v City of Jacksonville, 2018 WL 1605834 (MD FL 4/3/2018)

Posted by: Patricia Salkin | April 4, 2018

IN Appeals Court Upholds Denial of Site Plan Proposal

This post was authored by Matthew Loeser, Esq.
Portage Township Multi-School Building Corporation and Central States Tower III, LLC (CST) executed a lease agreement, pursuant to which CST would rent a 7,961-square-foot parcel on the subject property owned by the School Building Corporation. CST planned to construct and operate a telecommunications tower on the Site. CST filed a petition for a special zoning exception for the Site with the Portage Board of Zoning Appeals. The Board voted to approve the special exception on the conditions that: CST must adopt the Planner’s proposed landscaping plan and build an eight-foot fence around the Site of better quality than a chain link fence. The Plan Commission’s Development Review Committee (DRC), approved CST’s site plan on the conditions that: CST would need to acquire a new access easement to the Site; the Board’s landscaping and fencing conditions would have to appear in the site plan; and the revised site plan would have to be re-submitted for final approval. When the DRC questioned CST as to whether the School Building Corporation had approved the Alternative Easement, the CST stated that an “agreement for site access would be worked out at a later time.” Due to this lack of an agreement for the Alternative Easement, the DRC recommended that the Plan Commission deny CST’s site plan. In this case, CST appealed the trial court’s order denying relief on CST’s petition for judicial review.

On appeal, CST argued that because the School Building Corporation was obligated pursuant to the Lease to provide CST with an easement to access the Site, the fact that there was no permanent easement in place at the time of the Commission’s review should not form the basis of the denial of CST’s site plan proposal. The Township had an ordinance requiring an application for site plan approval for a telecommunications facility to include “copies of any necessary easements.”. Here CST’s site plan did not have the required easements attached because they did not exist. As such, the court found that the trial court did not err by finding that the Plan Commission’s denial of CST’s site plan proposal was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Accordingly, the judgment of the trial court was affirmed.

Central States tower III, LLV c Plan Commission of City of Portage, 2018 WL 1614301 (IN App 4/4/2018)

This post was authored by Matthew Loeser, Esq.
Dan’s Mountain Wind Force, LLC sought to construct seventeen wind turbines and an electrical substation on leased property on Dan’s Mountain. The Allegany County Code permitted wind turbines as a special exception in the zoning district in which the project is proposed. Because the proposed sites of some of the turbines were within either the setback or separation distances, or both, Wind Force sought variances. The Wind Force’s expert testimony was that these constraints required it to propose placing the turbines in very specific locations on Dan’s Mountain and that the requested variances of the minimum separation distance and setback requirements were necessary for the project. Despite this testimony, the Board denied the variance requests and the special exception application that was premised on those variances. Wind Force consolidated its appeals of the Board’s decisions into a single petition for judicial review, which the circuit court affirmed.

At the outset, the court noted that the uniqueness of the properties at issue must have a nexus with the aspect of the zoning law from which a variance is sought. On appeal, the court found that the Board focused on comparing the co-applicant properties to each other without looking at other surrounding properties. Here, the aspects of the zoning law from which a variance were sought were the separation and setback requirements. Thus, the court found that the Board should have considered whether there were features on the property that caused the separation and setback requirements to affect the applicant’s individual property differently from the way it affected other surrounding properties. The court further held that it was insufficient to determine, as the Board did, that every property was in some way affected by prior surface mining, animal and plant habitats, and communications towers. Conversely, the court found that Wind Force put forth enough evidence of several features of each of the co-applicant properties to suggest that the separation and setback requirements operated differently on each of those properties than they operated on other surrounding properties. Accordingly, the Board’s decision was reversed and remanded.

Dan’s Mountain Wind force, LLC v Allegany County Board of Zoning Appeals, 2018 WL 1611695 (MD App 4/3/2018)

This post was authored by Matthew Loeser, Esq.

Pentecostal Church of God d/b/a Great Life Church and Pastor Larry Spivey’s petitioned for judicial review of the denial of a special use permit application. The Church argued for the reversal of the Board’s decision on four grounds: that no substantial evidence supported the denial of the Church’s application; that the denial results in a violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); that the denial results in a violation of equal protection; and that the denial resulted in a violation of due process.

On appeal, the court found that the public testimony opposing the project constituted substantial evidence for the Board to rely on when denying the Church a special use permit. The Board denied the Church a permit, citing the project’s failure to meet two considerations under DCC § 20.604.060: “the required compatibility with the character and integrity of the neighborhood despite mitigating project modifications and the resulting traffic impact would not be hazardous or conflicting with the existing traffic.”

Petitioners next claimed that the denial of the special use permit resulted in a substantial burden on their religious exercise as it prevented them from using their property in a manner that was “compatible with the county code when necessary steps are taken and conditions are imposed to mitigate any legitimate adverse effects…” Here, however, the Board found the property unsuitable based on its proximity to an already busy, and possibly dangerous, intersection as well as its location in a particular neighborhood. Consequently, the denial did not limit the Church’s opportunity or ability to seek out other available properties and did not suggest an application related to a more suitable property would be denied. Accordingly, the court denied the RLUIPA claim based on Petitioners’ failure to demonstrate a substantial burden on their religious exercise. As, the RLUIPA claim was the basis for Petitioners’ due process claim, that claim was likewise dismissed.

As to Petitioners’ class-of-one claim, the court found that despite the existence of several other churches within the area, the administrative record did not indicate that the existing churches were located at the same intersection, or at a similar intersection, as the at-issue property. Instead, the traffic concerns regarding the busy intersection appeared unique to the property on which the Church sought to construct its building. As such, the court affirmed the Board’s denial, and denied Petitioners’ challenges under RLUIPA, equal protection and due process.

Pentecostal Church of God v Douglas County, 2018 WL 1611184 (D NV 4/2/2018)

This post was authored by Amy Lavine, Esq.

 A Kansas court held that alterations to a nonconforming fence were merely “repairs,” rather than a “full replacement,” and thus the property owners merely needed to obtain a building permit rather than seeking variance approval.

 

The Layles maintained a fence around their home that was several decades old and predated the zoning ordinance. The fence was badly in need of repairs, and to address the problem they applied for a permit to replace the pickets and rails for the entire length of the fence. Although this approach would leave the fence posts intact, the Architectural Review Board determined that a variance was still required for the fence’s height and location. The city administrator likewise denied the Layles’ permit request and directed them to obtain a variance, reasoning that the proposed alterations were so substantial that they constituted a replacement of the fence, not just a mere repair. The zoning board affirmed.

 

Insofar as the case required an interpretation of regulatory and statutory requirements, as opposed to just issues of fact, the Kansas Court of Appeals noted that it reviewed the zoning board’s decision de novo. This included the determination as to whether the fence alterations constituted repairs or  replacements, as the interpretation of those terms presented a question of law. Accordingly, while the court deferred to the board’s decision generally, it reached its own determination regarding the correct interpretation of the variance regulations.

 

The ordinance defined “repair” as normal maintenance, excluding the “full replacement” of a structure, and the Layles contended that their project fell within this definition because, by using the existing fence posts, it would be less than a “full replacement.” The Kansas Court of Appeals agreed and reversed the decision of the zoning board, which failed to apply the criteria as defined in the ordinance. In addition to the definition of “repair,” the court found it significant that “fence section” was defined to mean the portion of a fence constructed between two fence posts. Because the work in this case consisted only of replacements to these “sections,” the court explained, the repairs were necessarily less than a “full” replacement, regardless of the extensive scope of the proposed work.

 

The court also found that the proposed fence alterations complied with the requirement that “repairs” could not “change the use, location, height, size or exterior surface of the structure.” Althought the city argued that replacing the fence’s rails and pickets would change its exterior surface in violation of this provision, the court found that the board’s interpretation was unreasonably narrow because the Layles had proposed replacements would use substantially similar wooden pickets and rails to the old fence. The restriction against changed exterior surfaces, the court explained, “more likely refers to a change in exterior surface materials, e.g., wood versus metal pickets or stucco versus brick siding.”

 

As the court summarized: “Because the Board misconstrued the plain language of the zoning regulations, its decision that the Layles’ proposed work constituted a full replacement of the fence is not substantially supported by the evidence. The evidence instead shows that their proposed work constituted a repair of the fence.”

 

Layle v. City of Mission Hills, 401 P.3d 1052 (Kan. App. 2017)

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