This post was authored by Matthew Loeser, Esq.

Appellant Terry Sutton sought to operate an adult entertainment club inside a shopping center he owned in Chanceford Township, Pennsylvania. After the Township’s Zoning Hearing Board rejected his application for a permit, Sutton sued the Township and many of its officials, arguing that the Township’s special requirements for adult entertainment facilities violated the First Amendment, both facially and as applied, and that the Board’s rejection of his application violated his right to substantive due process. The District Court granted summary judgment in favor of the Town.

On appeal, Sutton contended that the Township’s ordinance’s restrictions on adult entertainment facilities facially violated the First Amendment. Specifically, Sutton claimed the Township failed to prove that the purpose of its restrictions on adult entertainment facilities was to combat their secondary effects.  The record indicated that the Township produced sworn affidavits from multiple officials involved in passing the adult entertainment restrictions demonstrating that the “principal concerns” were with “orderly growth, traffic, health and safety, and crime.” Additionally, the Township’s Solicitor testified that he reviewed various court decisions, as well as legislative findings, discussing the negative secondary effects of adult entertainment businesses. These concerns were then identified in the Township’s zoning ordinance. Accordingly, Sutton’s facial challenge failed.
Next, Sutton contended that even if the ordinance’s restrictions on adult entertainment facilities were facially valid, they were unconstitutional as applied.  Here, however, the record reflected that the Board rejected the application for legitimate, content-neutral reasons, rather than from animus to nude dancing. Specifically, the Board found that pursuant to the ordinance only “stores” could be part of a shopping center, and the cabaret was not a store. Additionally, the Board found that Sutton failed to establish that the cabaret would meet the ground-water discharge and sewage-disposal requirements applicable to all special uses. Finally, the Board found that the cabaret, by featuring lewd activity and permitting patrons to bring in alcohol, would violate Pennsylvania law. Accordingly, the court rejected Sutton’s as-applied challenge.
Sutton also argued that the Township violated substantive due process when it rejected his application. He contended that the Township Solicitor, who wrote the final decision denying his application, did so without the approval of the Zoning Board members and purely out of animus toward nude dancing. As discussed above, the court found that the record reflected the Board ultimately offered several permissible reasons for denying his application that had nothing to do with the morality or expressive nature of nude dancing.  As such, the court affirmed the judgment of the District Court.
Sutton v Chanceford Township, 2019 WL 588757 (CA 3rd Cir. 2/13/2019)

This post was authored by Touro Law student Thomas Brown ‘20
In 1999, plaintiff homeowners Maria Tirpak and her now-deceased husband applied for a variance to be able to raze their home and build a two-family home in an area zoned for single-family. As a condition of approving the variance, the Zoning Board required a variance provision and deed restriction that one of the two units be occupied by the owner rather than rented out to a third-party.

Mrs. Tirpak applied to the Borough of Point Pleasant Beach Board of Adjustment to remove the deed restriction and was denied. She sought an Order from the Superior Court of New Jersey to reverse the denial and was granted a reversal, and the Borough appealed.

The Superior Court of N.J., Appellate Division agreed with the lower court that municipalities may regulate “land use” but not the “identity or status” of the owners or persons who occupy the land. The Court cited its own decision in DeFelice v. Zoning Bd. of Adjustment of Borough of Point Pleasant Beach, 523 A.2d 1086 (App. Div. 1987), where it stated that the Zoning Board was “powerless to attach [such] a condition restricting the future identity of the owners”–a condition that would have allowed the Borough to demolish the owner’s residence upon sale of the property or the owner’s death.

The defendants argued that an owner living in one unit would be more inclined than an absentee owner to ensure that the tenants in the other units obeyed “noise, parking, and other local ordinances,” but the Court was not persuaded, stating that there was no guarantee that that would be the case.

The Court concluded that the defendants cannot try to maintain a “quiet and peaceful environment” by imposing zoning restrictions that “discriminate against renters” and that it was too late to try to rescind the two-family variance altogether. Instead, the best solution, as the trial court found, was to nullify the deed restriction and “illegal” variance condition.

Tirpak v. Borough of Point Pleasant Beach Bd. of Adjustment, 2019 WL 507717 (N.J. Super. Ct. App. Div. Feb. 11, 2019).

This post was authored by Touro Law student Thomas Brown ‘20

In the Township of Duluth, property owners applied for a zoning variance so that they could build a home on a piece of land that was too small under existing codes to build on. The Township granted the variance, and neighboring landowners sought judicial review. The zoning applicants incurred construction expenses soon after their variance application was approved.

Plaintiffs served the Township, and the Township argued that the Minnesota Rules of Civil Procedure, R. 19, required plaintiffs to join the original zoning-variance applicants in the suit as well, even though this was not required by statute. The District Court agreed and dismissed the suit.

On appeal, the Court of Appeals of Minnesota quoted from Rule 19.01 of the Minn. Rules of Civ. Proc., which states, in part, that:

A person who is subject to service of process shall be joined as a party in the action if…the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may … as a practical matter impair or impede the person’s ability to protect that interest.

Because the outcome of the lawsuit would determine whether the variance applicants would be allowed to continue their home-construction project, the Court of Appeals decided they had a clear financial interest in the suit. The Court therefore agreed with the District Court that the applicants were a necessary and indispensable party and affirmed the District Court’s dismissal of the suit.

The Court noted that “at least four” other states had also considered variance applicants to be necessary parties in similar cases.

Schulz v. Town of Duluth, 2019 WL 510023 (Minn. Ct. App. Feb. 11, 2019)

Editor’s Note: This summary was first published in the USDOJ’s February 2019 issue of Religious Freedom in Focus, available here:

On February 6, 2019, the U.S. Court of Appeals for the Fourth Circuit reversed a federal trial court and held that a small African Christian church’s suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) may proceed.  The United States filed an amicus brief in the Court of Appeals in the case, Jesus Christ is the Answer Ministries, Inc. v. Baltimore County, Maryland last July. Principal Deputy Assistant Attorney General John M. Gore represented the United States at oral arguments in October, contending that the church had adequately alleged that the county discriminated against it and had imposed a substantial burden on its religious exercise without proper justification.

The case involves the efforts of Jesus Christ is the Answer Ministries, a small congregation with many members who are African immigrants, to build a church on a 1.2-acre lot in Baltimore County.  The property’s zoning allows churches as of right, subject to setback and buffer requirements which a church must meet “to the extent possible.”  The church initially submitted a plan that fell far short of meeting the setback and buffer requirements, but submitted a second plan which largely met them.  The church plan was vigorously opposed by neighbors, and the county denied the church’s second application.

The church filed suit under RLUIPA, which protects places of worship and other religious uses of property from discriminatory or unjustifiably burdensome applications of land-use regulations.  The suit alleged that neighbors opposing the plan had made racially and ethnically charged statements about the worship style of the congregation including references to “dancing and hollering” as if they were “home back in Africa.”  The suit also alleged that the church had made reasonable proposals and modifications to its plan and that their religious exercise was “substantially burdened” in violation of RLUIPA by the denial.  A federal district court ruled that the claims were insufficient to make out a RLUIPA claim and dismissed the complaint.

The court of appeals agreed with the United States that both of the church’s claims should be permitted to proceed.

On the discrimination claim, the court agreed with the United States that while the statements of neighbors at a public hearing are not necessarily attributable to the government decision maker, these allegations, coupled with the allegation that the county was in fact influenced by these neighbors, is sufficient to state a claim of discrimination under RLUIPA.  The court also noted that while RLUIPA prohibits only religious discrimination and not ethnic or racial discrimination, the statements of the neighbors disparaging the congregants included both racial and religious elements, and the court would not try to disaggregate these on a motion to dismiss.

On the substantial burden claim, the court agreed with the United States that a court should evaluate both the actual ways the zoning action imposes a burden on the church (e.g., here completely foreclosing the property’s use as a church), and the degree to which the local government is causing that burden.  The United States argued that the plaintiffs had a reasonable expectation when they bought the property that they could use it for a church, that they had demonstrated its willingness to make modifications to address county concerns, and that they were treated arbitrarily by the county.

The court agreed, finding that the complete foreclosure of the use of the property resulting from the denial, the reasonable expectations of the church, and its willingness to modify its original plans, stated a claim of a substantial burden on religious exercise under RLUIPA.

In 2018, the Department launched the Place to Worship Initiative to increase awareness of RLUIPA’s requirements among local officials and communities and to increase enforcement. More information is available on the Place to Worship Initiative homepage and the website of the DOJ Civil Rights Division’s Housing and Civil Enforcement Section, which enforces RLUIPA.

Editor’s note: This summary was originally published in the USDOJ’s February 2019 Religious Freedom in Focus newsletter available here:

On December 12, 2018, the U.S. District Court for the District of New Jersey ruled that a Muslim congregation alleging that it was improperly denied septic permits and a certificate of occupancy to build a mosque could bring a claim under RLUIPA.  The court in the case, Garden State Islamic Center v. City of Vineland, agreed with the United States’ position in a Statement of Interest submitted in September 2017 that the city’s actions qualified as “land use regulation” under RLUIPA.

RLUIPA prohibits a government from imposing or implementing  a “land use regulation” in a manner that discriminates against religious uses, or which imposes substantial burdens on religious land uses without a compelling government justification pursued through the least restrictive means.  RLUIPA specifies that land use regulation means “zoning or landmarking” laws.

The Garden State Islamic Center received city approval to build a mosque in 2012.  When the Center sought to build the second phase of the mosque in 2016, the city denied it the necessary septic permits, claiming that the size of the septic system would now require state environmental review, and denied the mosque a final certificate of occupancy.  The mosque brought suit under RLUIPA, claiming that the denials were discriminatory and imposed a substantial burden on its religious exercise.

The city asked the court to dismiss the case, saying that the septic permits are not “zoning laws” and thus denying such permits cannot violate RLUIPA.  The United States contended in its Statement of Interest that the city’s actions triggered RLUIPA both because the septic regulations are incorporated into the city zoning code, and the septic permit denials constituted the means by which the city made its decision to deny the certificate of occupancy, the denial of which is plainly a zoning action.

The court agreed. The court noted that the mosque was alleging that “the City’s tactics associated with the septic system process” evidenced an effort to deny the approval of the overall project.  The court concluded that “because the sewage regulation at issue is incorporated by reference into the City’s Land Use Ordinance, it qualifies as a zoning law.  To hold otherwise would put form over function.”

In a similar case brought by the United States involving a proposed mosque in Culpeper, Virginia, a federal court in Virginia held in March 2017 that the sewage restrictions applied in that case constituted a land use regulation under RLUIPA because these regulations were cited by reference in the zoning code and were used in that case to thwart the mosque’s zoning application.

This post was authored by Touro Law student Thomas Brown ‘20

Plaintiffs William and Kara Raynor owned a parcel of land in a historic district in Chapel Hill containing a small cottage that they wished to demolish and replace with a new single-family home. In order to do this they needed to obtain a Certificate of Appropriateness from Chapel Hill’s Historic District Commission (HDC).

After a series of denials and changes to their application, the Raynors appealed to the town Board of Adjustment, which ordered that the HDC accept the application. However, the HDC continued to delay and avoid obeying the Board’s order. The Raynors sued the Town and the HDC in state court under claims of federal substantive due process, procedural due process, equal protection and state constitutional claims. The defendants timely removed to the Middle District of North Carolina and made a motion to dismiss under quasi-judicial and qualified immunity.

Regarding substantive due process, the court acknowledged the plaintiffs’ allegations that the Commission “caus[ed] Plaintiffs to engage in numerous and inconsistent redesigns, rais[ed] new objections throughout the process with differing reasons, conduct[ed] undisclosed private meetings, [had] conflicts or animus toward Plaintiffs, seat[ed] some members who were not qualified to serve by virtue of interest, experience or education, and bas[ed] its decisions on considerations not provided for in the Town’s Land Use Ordinances.” However, the court decided that those actions were not outside the “broad limits” of government action and were within the state’s traditional regulatory powers. They did not “shock the conscience” and could be rectified by state remedies.

Concerning the equal protection claim, the court again emphasized the local nature of land use decisions. Plaintiffs alleged that they had been treated differently from other residents with home designs similar to the one they proposed, but the court stated that “Where rational distinctions are reasonably conceivable, ‘even if they were not the real reasons for treating [Plaintiffs] differently[,] … that is the end of our inquiry.’”

After dismissing the federal due process and equal protection claims, the court remanded the state constitutional claims to the state court.

Regarding defendants’ claims of quasi-judicial and qualified immunity, the court said that “These are potentially-applicable defenses that would require further analysis and consideration,” but the court did not have to reach them after the failure of the federal claims.The court concluded by stating that “‘[t]his case is a garden-variety zoning dispute recast in constitutional terms’” (quoting Siena Corp. v. Mayor and City Council of Rockville, Md., 873 F.3d 456, 466) and granted defendants’ motion to dismiss the federal claims.

Raynor v. Town of Chapel Hill, 2019 WL 503443 (M.D.N.C. Feb. 8, 2019).

Posted by: Patricia Salkin | January 31, 2019

NY Appellate Court Reverses Variance Denial for Proposed Crematory

This post was authored by Amy Lavine, Esq.

A New York appellate court held in January that a variance was needed for the addition of a crematory to an existing cemetery property. The zoning board’s refusal to grant a variance was unreasonable, however, because the crematory application was based on sufficient proof of unnecessary hardship and there was no evidence that it would cause any negative impacts to the neighborhood.


The White Plains Rural Cemetery Association wanted to construct a crematory on its nonconforming cemetery property. It applied to the zoning board for a determination that the crematory would be a permissible use as part of the existing cemetery, but the zoning board concluded that a variance was necessary and denied the Association’s application in its entirety. The trial court mostly affirmed this ruling, but it granted that part of the Association’s petition that sought to annul the zoning board’s variance denial. This appeal followed, and the appellate court affirmed.


The Association’s argument that a crematory would be part of the same land use as the existing cemetery was based primarily on its status as a “cemetery corporation” under the state not-for-profit corporation law. But as the court explained, the Association’s corporate status as a “cemetery” didn’t necessarily mean that its proposed crematory would also qualify as a “cemetery” under the zoning ordinance. The zoning board wasn’t bound by provisions in the non-for-profit corporation law, the court noted, and it had authority under the state zoning laws to adopt its own regulatory definitions. The court also found that it was reasonable for the zoning board to look to common dictionary definitions for its interpretation of what constituted a “cemetery” and its decision that the proposed crematory wouldn’t qualify for this classification was entitled to deference, regardless of whether or not the Association might be a “cemetery” under other legal regulations.


The appellate court next considered the zoning board’s decision to deny a variance for the crematory. The general rule, the court explained, is that a property owner is only eligible for a use variance if it can show an unnecessary hardship. Additionally, New York law requires that: (1) the property would not be capable producing a reasonable return under existing permitted uses; (2) the hardship was the result of a unique feature of the property; (3) the variance would not have negative impacts on nearby residents or alter the character of the neighborhood; and (4) the hardship was not self-created. In the circumstances of this case, the court found that the Association sufficiently proved an unnecessary hardship and that it produced adequate “dollars and cents” evidence that it would be unable to realize a reasonable return in the absence of variance relief. In particular, the court noted that the Association had provided factual and expert evidence of its ongoing operating losses, including its financial records and projections made by a financial analyst. The zoning board had dismissed this evidence as contradictory based on a tax document showing that the Association had some income in 2014, but the court held that this determination was arbitrary and irrational, explaining that “the Board failed to differentiate investment income accrued in the Cemetery’s statutorily required permanent maintenance fund from the net losses the Cemetery incurred as a result of its decline in revenue.”


The zoning board had also denied the Association’s variance request on the basis that a crematory would alter the essential character of the neighborhood. But the court disagreed as to this point as well, noting that “the unrebutted evidence demonstrated that the crematory would be shielded from view, would be odorless and not emit visible smoke, and had passed all necessary emissions and air quality testing.” Additionally, the crematory would have no impacts on historic resources, nor would it be visible from the nearest residence, which was located 400 feet away on the other side of a major highway. The court dismissed the zoning board’s remaining concerns about property values and the possibility that additional crematories might be added in the future, as these findings were speculative and based on generalized community opposition to crematories. Based on this analysis, and because there was no disagreement that the Association satisfied the remaining statutory criteria, the court affirmed the determination below which annulled the zoning board’s denial of the Association’s variance request.


White Plains Rural Cemetery Association v City of White Plains, 2019 WL 362123 (NYAD 2 Dept. 1/30/2019).

This post was authored by Amy Lavine, Esq.

A recent appellate court decision from New York upheld a frontage variance that was granted for a hotel development in the Town of the Newburgh. The court found that the variance was properly treated as an area variance because it involved a “physical requirement” of the zoning regulations, and the record showed that the zoning board’s decision was reasonable and complied with state law.


The court first addressed the hotel’s request for a variance from the zoning ordinance’s requirement that hotels must have “principal frontage” on a state or county highway. Although the petitioners claimed that this should have been treated as a use variance, the court agreed with the zoning board that it was more appropriately considered as a request for an area variance. As the court noted, the enabling act defined area variances in reference to “the dimensional or physical requirements of the applicable zoning regulations,” and it was reasonable for the zoning board to conclude that the “principal frontage” regulation was a “physical requirement.” The variance application also involved the height of the proposed hotel, which the zoning board also classified as an area variance, and the court noted that there was dispute on this point.


In determining whether the area variances were properly granted, the court noted that the zoning board was required by the enabling act to weigh the benefit of the variance to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community. This analysis must also consider several statutory criteria, including: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.” On the facts of this case, the court determined that the record showed that the zoning board properly considered each of the statutory factors, and its decision to grant the variances was not irrational or an abuse of discretion.


In a final point, the court also concluded that the zoning board acted properly in issuing a negative declaration under the State Environmental Quality Review Act. As it noted, the zoning board filed the required short Environmental Assessment Form, identified the relevant areas of environmental concern, took a hard look at the potential environmental impacts, and made a reasoned elaboration of the basis for its determination.


Route 17k Real Estate, LLC v Zoning Board of Appeals of the Town of Newburgh, 2019 WL 362126 (NYAD 2 Dept. 1/30/2019).

The petitioner lives in a neighborhood zoned for one-family and two family residences. Most of the houses in the neighborhood, including the petitioner’s house, were built before the enactment of the zoning law in 1920 and are located on lots that do not comply with the current zoning laws. The petitioner applied for five area variances to convert her one-family home into a two-family home. After a hearing, the Board of Zoning denied the application. The petitioner appealed and the trial court granted the petition, annulled the determination, and remitted the matter to the Board for reconsideration of the petitioner’s application for area variances. The Board appealed.

Although the Board engaged in the required balancing test, the Court agreed with the trial court that the Board failed to meaningfully consider the relevant statutory factors. The Court noted, “While the proposed variances were clearly substantial and the alleged difficulty was self-created, the Board’s failure to cite to particular evidence as to whether granting the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community requires reconsideration of the application, weighing all of these factors.” Accordingly, the Court affirmed annulling the Board’s determination, and remitting the matter to the Board for reconsideration.

Mengisopolous v. Board of Zoning Appeals of City of Glen Cove, 2019 WL 288111 (NYAD 2 Dept. 1/23/2019).

In a challenge to the determination of the zoning board of appeals that a gasoline fueling station was a permitted principal use in the district pursuant to the Town Code, the appellate court upheld the board’s interpretation finding it was neither arbitrary nor capricious and that it complied with applicable legal principles.
Hitner v. Planning Board of the Town of Patterson, 2019 WL 288135 (NYAD 2 Dept. 1/23/2019)

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