This appeal arose from the trial court’s grant of summary judgment to Appellees on their Open Meetings Act claim, and the grant of partial summary judgment to Appellees on their Fair Housing Act claims, i.e., disparate treatment and disparate impact. There were two separate groups of Appellees in this case: Flat Iron Partners, LP, a Tennessee limited partnership; and Cottonwood Properties, Inc., Flat Iron and Cottonwood each bought tracts of land for the purposes of building multi-family housing. Flat Iron presented a “conceptual plan” to the City of Covington Municipal–Regional Planning Commission, in which Flat Iron represented that its proposed development would not be Section 8 housing, but would be a gated community, targeting individuals making between $30,000 and $40,000 per year. Following two meetings on November 28th and 29th, the BMA adopted an Ordinance amending the Zoning Ordinance to impose the temporary moratorium upon the issuance of building permits. Following this, several problems were found with the initial site plan that were not remedied by the time the application for a building permit was made. As such, the permit was denied.

Tennessee’s Open Meetings Act provides that “all meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee.” Tenn.Code Ann. § 8–44–102(a) (2002). In their motion for summary judgment, Appellees argued that the Appellants violated the foregoing statutory provisions by holding a private meeting of the BMA on November 27, 2000. Appellants countered with sworn deposition testimony of Mr. Keith Phelps, the Board of Alderman on November 27, 2000, which said there was no discussion of how the members would vote in that meeting. Since Mr. Phelps stated that the purpose of the meeting was to introduce the proposed moratorium, and to make relevant information available, there was no “meeting” under the Open Meetings Act. Therefore, the court found no violation and reversed the trial court’s grant of summary judgment in favor of Appellees on this issue.

As to the disparate treatment claim, in order to establish a disparate treatment claim under the FHA, Appellees needed to prove that a discriminatory purpose was a motivating factor in the Appellants’ actions. Appellees claimed that the undisputed facts showed that the Appellants, acting through the BMA, passed an illegal and void amendment to the City’s general ordinance for the specific purpose of, first, stopping Appellees from building high-density, MFUH developments in Covington. Appellants provided ample evidence to rebut the presumption of discriminatory treatment by providing legitimate, non-discriminatory reasons for their actions. Accordingly, the trial court erred in dismissing this claim at the summary judgment stage.

Flat Iron Partners, LP v City of Covington, 2015 WL 1952290 (TN App. 4/30/2015)

The opinion can be accessed at:

This case arose out of a zoning dispute over a live entertainment permit issued to Antoine’s Restaurant, L.L.C. by the Department of Safety and Permits. Antoine’s submitted an application for a live entertainment permit to the Department along with fourteen affidavits attesting to the nonconforming use of live entertainment at Antoine’s. The Director of the Department approved the permit for live entertainment based on a determination that Antoine’s had established by sufficient evidence the existence of a legal nonconforming use. The Vieux Carre Property Owners, Residents & Associates, Inc., French Quarter Citizens, Inc., and Carol Allen (collectively the “Plaintiffs”), filed an appeal with the Board of Zoning Adjustments seeking to overturn the determination that Antoine’s sufficiently established the existence of a legal nonconforming use. The BZA denied Plaintiffs’ appeal and upheld the decision of the Department, and the Plaintiffs sought judicial review of the BZA decision in the district court, which affirmed the BZA’s decision. Plaintiffs then appealed.

Here, Antoine’s sought a permit for the existence of its nonconforming use of live entertainment and submitted fourteen affidavits from employees and members of the family owning Antoine’s. Each affidavit indicated the length of time the affiant has worked at and been “familiar with all facets of the operations of Antoine’s,” dating back to 1955; and each affiant attested that Antoine’s “has had live entertainment with no interruptions in excess of six months as part of the Antoine’s experience” during the entire period of the affiant’s tenure at Antoine’s. Both the Director and the BZA provided Plaintiffs the opportunity to submit evidence contrary to the affidavits submitted by Antoine’s, but the Plaintiffs failed to do so. Accordingly, the court found that the BZA did not act arbitrary, capricious or unreasonably in making its decision to uphold the existence of a nonconforming use at Antoine’s.

Vieux Carre Property Owners v City of New Orleans, 2015 WL 1736870 (LA App. 4/15/2015)

Editor’s Note: Thanks to the Climate Law Blog for this posting –

The post was authored by Jennifer M. Klein, Esq. Associate Director & Fellow at the Sabin Center for Climate Change Law

Flooding from Hurricane Katrina constitutes a taking of property without just compensation by the United States government, according to a recent decision from the United States Court of Federal Claims in Saint Bernard Parish Government, et al., v. The United States. Judge Susan Braden found that the Army Corps of Engineers’ (the Corps) negligent design and failure to maintain the Mississippi River Gulf Outlet (MR-GO), a canal constructed by the Corps in the 1950s, exacerbated flood damage in parts of New Orleans. The increased flooding, although temporary, wrongfully deprived land owners of the use of their property. Judge Braden’s decision relied heavily on a 2012 Supreme Court case, Arkansas Game and Fish Commission v. United States, which held that temporary flooding caused by government action is not categorically exempt from Takings Clause liability.

Prior efforts to hold the government liable for flood damage from Hurricane Katrina were unsuccessful. An earlier case brought claims under the Federal Tort Claims Act (FTCA), rather than the Takings Clause of the United States Constitution. In that case, the Fifth Circuit Court of Appeals at first affirmed the trial court’s finding of liability, but then issued a subsequent ruling finding that the government was immune from the plaintiffs’ claims, because its actions in connection with the design and maintenance of MR-GO were largely discretionary. In contrast, the United States has waived sovereign immunity for claims brought under the Takings Claims through the Tucker Act, which grants jurisdiction to the Court of Federal Claims for claims for “damages in cases not sounding in tort.” Some legal scholars, including John Echeverria of Vermont Law School, have expressed concern that Saint Bernard Parish and Arkansas Game and Fish Commission allow the takings doctrine to improperly invade the traditional domain of tort law.

The apparent expansion of takings liability ushered in by these cases, however, will likely be tempered by the fact specific analysis required in cases asserting claims for temporary takings due to flooding. As Judge Braden explained, a plaintiff asserting a claim for a temporary taking must establish: (1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality. Moreover, the question remains whether liability exists only where the government negligently designs and maintains infrastructure, or whether it is possible to hold the government accountable where it decides not to build at all despite known risks.

The finding in Saint Bernard Parish that the government is liable for inadequately preparing federally-constructed and maintained infrastructure for severe weather events is significant in light of the increasing risk of such events due to climate change. Notably, Saint Bernard Parish, if it survives appeal, expands government liability from situations in which the government deliberately causes flooding, for example by releasing water from a dam, to include situations in which inaction by the government exacerbates flooding from severe weather. This developing area of law will also have broad implications for local and state governments seeking to prepare for – or deliberately deciding not to prepare for – climate change impacts.

The opinion can be accessed at:

Editor’s note: Special thanks to the RLUIPA Defense Blog for this posting.

A federal court in Michigan has ruled against a Muslim group in its RLUIPA suit against Pittsfield Charter Township after finding that the group lacked a legally cognizable property interest to sustain its claims. To establish a RLUIPA claim, a plaintiff must have “an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” 42 U.S.C. § 2000cc-5(5). This case – Muslim Community Association of Ann Arbor v. Pittsfield Charter Township (E.D. MI March 20, 2015) – is noteworthy because it is not often that the validity of a real property interest is an issue in RLUIPA litigation. Here, the Muslim group, Michigan Islamic Academy (“MIA”), had permission to use the property by the owner, but never acquired a property interest in accordance with state law.

MIA is a school that provides secular and Islamic religious education to preschool through grade twelve. MIA believed that its existing 10,000 square foot facility was too small to accommodate its religious needs and began looking for a new site to use as a school. It eventually found a new site, consisting of more than 26 acres of undeveloped land zoned as planned unit development (“PUD”). To further its development in the PUD zone, MIA submitted a petition for a zoning amendment and an area plan– even though it claimed that it did not need to do so – but the petition was ultimately denied. Thereafter, MIA brought suit, contending that the denial of its petition violated: (a) RLUIPA’s substantial burden, nondiscrimination, and equal terms provisions; (b) the Establishment Clause under the state and Federal constitutions; and (c) the state and federal Equal Protection Clause.

The district court entered summary judgment in favor of the Township after concluding that MIA did not have a sufficient property interest to maintain its RLUIPA claims. Although MIA had permission to use the property to develop a school, it never acquired a legally cognizable property interest to do so in accordance with Michigan law. Specifically, under Michigan law, “[a] conveyance of an interest in land must be in writing and comport with the statute of frauds.” Marina Bay Condos., Inc. v. Schlegel, 167 Mich. App. 602, 606 (1988). Here, there was no evidence that the alleged conveyance was ever made in writing, as required by state law, regardless of any promise by the owner to allow MIA to use the property. Accordingly, the court rejected MIA’s RLUIPA claims.

MIA’s claims (RLUIPA and constitutional) failed for the additional reason that they are not ripe. To satisfy ripeness, MIA must seek a decision from the Zoning Administrator as to whether it must submit a petition to amend the PUD or whether its proposed school is a “small-scale school,” as argued by MIA, and therefore permitted on the property as presently zoned.

The Township may have dodged a bullet, because the court describes in its decision some troubling behavior by one of the Township’s Planning Commissioners who voted to recommend denial of the petition. This member not only lived in the neighborhood of the proposed school, but she also actively encouraged community members to oppose MIA’s proposal. She admitted in her deposition that she went from house to house and knocked on doors to distribute opposition materials to residents. She also coached community members on how to effectively oppose the petition and shared specific talking points and arguments to this end.

This may not be the last we hear of this case, as the court carefully notes that MIA may reassert its claims if it acquires a legally cognizable interest in the property or another person or entity that does have such an interest in the property may assert these claims. The court also states that if the Zoning Administrator concludes that MIA cannot build a school on its property as presently zoned, the case may be reopened with an amended complaint naming the new plaintiff.

Muslim Community Association of Ann Arbor v. Pittsfield Charter Township, 2015 WL 1286813 (ED MI 3/20/15)

The opinion can be accessed at:

Petitioners owned two adjacent parcels of real property located in the general business zoning district of the Village of Monroe. In early 2012, the petitioners entered into a contract to sell the parcels to Goddard Development Partners IV, LLC, which Goddard intended to use the parcels for tire sales and automotive repair services. The Village’s Zoning Board of Appeals denied Goddard’s application for an interpretation of the zoning provisions of the Code of the Village of Monroe that the proposed use was a use permitted as of right. The ZBA alternatively determined that the proposed use of the properties for tire sales was instead a conditional use, requiring a conditional use permit and site plan approval. The Zoning Board of Appeals of the Village of Monroe appealed from a judgment of the Supreme Court, Orange County, which annulled the determination, and directed the Building Inspector of the Village of Monroe to deem the proposed use to be a permitted use.

Here, under the Zoning Code, uses permitted as of right and conditional uses were set forth in two zoning schedules. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I–F included, “retail sales” and “repair service, including automotive”. However, column C listed “tire sales and service” among the conditional uses. Section 200–3 of the Code of the Village of Monroe provided that “in the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control.” Accordingly, the ZBA’s determination that the proposed use of the properties for tire sales was a conditional use was confirmed. 

Robert E. Hayell Revocable Trust v Zoning Board of Appeals of Village of Monroe, 2015 WL 1810220 (NYAD 2 Dept. 4/22/2015)

The opinion can be accessed at:

Appellants Robert and Berna Puckett appealed the decision of the Pickaway County Court of Common Pleas, granting summary judgment in favor of Appellee, Scioto Township Zoning Inspector, on the issue of whether the operation of Puckett’s Pay Pond constitutes aquaculture. They also appeal the trial court’s final decision, which issued a permanent injunction enjoining Appellants from committing a nuisance. On appeal, Appellants question whether 1) the trial court committed prejudicial error when it found they were not engaged in aquaculture; and 2) the trial court committed prejudicial error when it enjoined them from committing a nuisance.

As to the first issue, although it appeared that Appellants might have engaged in some limited aquaculture, by virtue of the fact they did have a valid permit and because some reproduction did take place, the Court of Common Pleas found that the primary use of their land was for the operation of a commercial pay lake. Thus, because Appellants’ land was not primarily used for agricultural purposes, as required by R.C. 519.21(A), this court determined that Appellants’ primary operation was that of a pay lake, not aquaculture, and affirmed the trial court’s grant of summary judgment.

In their second assignment of error, Appellants contended that the trial court committed prejudicial error when it enjoined Appellants from committing a nuisance. However, the court concluded the Appellants’ commercial pay lake was “a right thing in the wrong place”, and thus, was a nuisance and a violation of the zoning resolutions. Accordingly, the trial court properly abated by issuance of a permanent injunction pursuant to R.C. 519.24.

Scioto Township Zoning Inspector v Puckett, 2015 WL 1741349 (OH App. 4/10/2015)

The opinion can be accessed at:

Ralph Fredlund and William Funk owned homes in a residential subdivision in Eureka Township, abutting the property of Teresa Petter, who owned just over 57 acres of land that was zoned agricultural. Petter operated a fur farm on her property; she and Dan Storlie raised, breed, and skinned fur-bearing animals and sold the pelts. The district court found that these animals included but were not necessarily limited to wolves, cougars, bobcats, otters, beavers, lynx, fishers, martens, and badgers. Following appellants’ action in district court, in which they disputed respondent Eureka Township Board of Supervisors’ decision that keeping exotic animals on a farm for fur farming did not violate an ordinance prohibiting township residents from keeping such animals and sought a writ of mandamus to require the removal of such animals from property adjoining their properties, appellants challenged the district court’s summary judgment for respondent and the denial of their request for a writ of mandamus.

The ordinance in question the definition of “commercial agriculture” included the production of livestock products, which in turn includes “furs,” as well as milk products, butter, cheese, eggs, and meat. However, the plain language of the definition of “livestock” provides that it “includes but is not limited to: poultry, cattle, swine, sheep, goats, and horses, but shall not include Companion or Exotic Animals.” The court found that former definition was a general provision, and the latter was a more restrictive, specific provision. Because in the event of conflicting provisions or laws, the more restrictive provisions or laws shall apply, the court found permitted livestock products did not include the fur of exotic animals. Accordingly, the court reversed the district court’s decision as contrary as a matter of law.

Appellants next contended that they established in district court the three requisite elements required to obtain mandamus relief: “(1) the failure of an official to perform a duty clearly imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other adequate [legal] remedy.” Although the ordinance banned exotic animals, two exceptions existed, including exemptions for animal-control officers and for those grandfathered in when the ordinance was adopted. While the first exception did not apply, the issue of whether Petter was grandfathered in was a question of fact to be remanded to the district court.

Fredlund v Eureka Township Board of Supervisors, 2015 WL 1880218 (MN App. Unpub. 4/27/2015)

The opinion can be accessed at:

Plaintiff Harding Brass, LLC, operated an adult entertainment facility and juice bar in Hamilton Township. Harding Brass applied for a business license and repair permits in 2013; however, the zoning board originally denied the application. In 2014, after this lawsuit was filed, Harding Brass reapplied and received a favorable decision. Hamilton Township then moved for summary judgment.

The issue that faced the Board was whether Harding Brass’ use of the subject property as an adult entertainment establishment was a preexisting nonconforming use. The factual inquiry focused on whether, from July 1985 to the present, the property had been continuously used as an adult entertainment establishment, and Harding Brass had the burden of proof. Despite this, there was no tangible evidence presented confirming the facility was used for this purpose from 1985 to 2000. The application was therefore denied. However, on February 24, 2014, the Board held another hearing on the zoning application. At this new meeting Harding Brass presented testimony from 10 witnesses and an Atlantic City Press article in support of its application. As a result of this new evidence the permit was unanimously approved.

Here, the court found that the Board Members based their September 23, 2013 decision on a content-neutral reason: the insufficiency of Harding Brass’ evidence concerning continuous use—irrespective of what that “use” was. Thus, there was no evidence in the record supporting an inference that the Board or Township acted for a reason prohibited by the First Amendment when the Board originally denied Harding Brass’ application. Accordingly, Defendants’ Motion for Summary Judgment was granted.

Harding Brass, LLC v Zoning Board of Adjustment of the Township of Hamilton, 2015 WL 1835318 (DNJ 4/23/2015)

The opinion can be accessed at:

See also,

RDNT, LLC owned the Martin Luther Care Campus consisting of two buildings: the Martin Luther Care Center and Meadow Woods Assisted Living. The Campus provides a variety of services, including assisted living, memory care, skilled nursing, adult day care, and transitional care. RDNT submitted an application to the City for a conditional use permit, seeking to expand its existing assisted living services by adding a third building to the Campus. On appeal, RDNT, LLC alleged that the City of Bloomington’s decision to deny RDNT’s conditional use permit application was unreasonable, arbitrary, and capricious, and to hold that the City did not properly consider RDNT’s proposed traffic-mitigating conditions.

RDNT argued that each of the City’s four reasons for denying RDNT’s conditional use permit application was arbitrary and capricious; however, the court limited its consideration to the City’s fourth reason: that the proposed use would violate subdivision (e)(5) of the City’s conditional use permit ordinance. The City’s ordinance states in relevant part: “The following findings must be made prior to the approval of a conditional use permit: … (5) The proposed use will not be injurious to the surrounding neighborhood or otherwise harm the public health, safety and welfare.” Having found the ordinance legally sufficient, the court next addressed whether the City had a reasonable factual basis to determine that the proposed use would injure the surrounding neighborhood or otherwise harm the public health, safety, and welfare.

Here, the court found that the fact that a street could physically handle more traffic does not determine whether the neighborhood or the public could handle more traffic. Because the City relied on specific evidence such as traffic studies, average street numbers, and neighborhood testimony to conclude that the proposed use would nonetheless injure or otherwise harm the neighborhood, the court found there was a sufficient factual basis. Furthermore, the record showed that the City adequately considered the proposed mitigating conditions in several ways. The City estimated that the daily number of trips would increase after the expansion from 1,145 to somewhere between 1,377 and 1,447. The City’s engineer estimated that average traffic counts for a residential street were between 300 to 500 trips, and that the public tends to complain once traffic increases to 1,000 trips per day on such a street. Accordingly, the court found the City did not act unreasonably, arbitrarily, or capriciously when it denied RDNT’s conditional use permit application.

RDNT, LLC v City of Bloomington, 861 NW 2d 71 (MN 3/18/2015)

The opinion can be accessed at:



This appeal arose from a decision by the Town of Middlebury Development Review Board (DRB) approving appellee Jolley Associates, LLC’s application for a Planned Unit Development to add a car wash to an existing gas station and convenience store within the Town of Middlebury. Appellant MDY Taxes, Inc. operated an H & R Block tax franchise in property rented in a shopping center adjacent to the Jolley lot. Appellant Village Car Wash, Inc. operates a car wash located approximately one-quarter of a mile from the Jolley lot. Appellants did not participate in the DRB proceeding, but sought to challenge the approval of the PUD through an appeal to the Environmental Division of the Superior Court. The environmental court dismissed the appeal for lack of jurisdiction, concluding that appellants did not have standing to appeal the DRB decision because they had not participated in the proceedings before the DRB. On appeal, appellants contended that a procedural defect prevented them from appearing before the DRB and further that it would be manifestly unjust if they were not afforded party status to appeal.

Under Vermont law, an “interested person … who has participated … in the municipal regulatory proceeding … may appeal to the Environmental Division an act or decision made … by a development review board.” The environmental court concluded that the DRB had complied with the stringent content requirements provided by statute by: publishing a notice in the Addison Independent newspaper on September 26, 2013; posting a notice on Jolley’s property within view of Court Street; mailing written notifications to Jolley and all adjoining property owners; and posting notice at the town offices and on the town website. The court found that decision not to attend this meeting, did not amount to a procedural defect.

Furthermore, the court found the fact that neither appellant viewed or scrutinized the notices provided pursuant to those statutory requirements did not make it manifestly unjust to deny them the ability to appeal where the notice apprised them of their rights. Moreover, there was no evidence that the appellants were in a dissimilar situation from any other citizen who either did not read the provided notices, or read them and elected not to attend. Accordingly, the court found the environmental court did not abuse its discretion in denying appellant’s motion for party status. 

In Re Appeal of MDY Taxes Inc and Village Car Wash, Inc., 2015 WL 1780196 (VT 4/17/2015)

The opinion can be accessed at:

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