In 1999, State of Kansas and the Kansas Department of Transportation (collectively KDOT) purchased property from Christ Evangelical Lutheran Church, which included lots 55 through 75 in Grande Oaks. In 2005, KDOT placed trailers on these lots and, in subsequent years, used the lots for various construction activities. Eventually, KDOT constructed permanent bridges and pavements on a number of the lots. In March 2012, Plaintiffs, who all owned real property in Grande Oaks, initiated this lawsuit claiming inverse condemnation by Defendants. Defendants filed a motion for summary judgment, arguing that violation of the restrictive covenant in this case was not a compensable taking under Kansas law. Defendants sought compensation from the KDOT for violation of restrictive covenants burdening subdivision property. KDOT obtained summary judgment in the district court, but the Court of Appeals reversed.

As pertinent to this case, the Kansas Eminent Domain Procedure Act (EDPA) set forth procedures for condemnation of interests in real property. The court noted that the EDPA is narrower than the plain language of the federal Takings Clause, which extends to all “private property”, except for the fact that the EDPA makes not only takings, but also damage to real estate or an interest in it compensable. Here, while there was no physical taking, the court found KDOT’s nonconforming use of its subdivision parcels extinguished plaintiffs’ restrictive covenant as to those parcels, as plaintiffs’ interests in real property were destroyed and would continue to do so at least as long as KDOT continued to own the parcels. Accordingly, the court found a taking had occurred, and compensated plaintiffs for any qualifying damage caused to their parcels by the nonconforming use, as well as for the taking of their rights to control the use of KDOT’s parcels under the restrictive covenant.

Creegan v State, 2017 WL 1101774 (KS 3/24/2017)

Editor’s Note: This post originally appeared on the RLUIPA Defense Blog and is reposted with permission.  See the post here:

The District Court for the Northern District of Illinois granted a preliminary injunction prohibiting the City of Markham from requiring the Original Bible Church of Illinois to obtain conditional use approval to use property it leases as a church.

The Original Bible Church (“Church”) leases property owned by its pastor in a “neighborhood shopping district” of the City of Markham (“City”). The City’s zoning code does not require Plan Commission approval for certain “permitted uses” in neighborhood shopping districts, such as grocery stores, restaurants, and theaters, but does require such approval for “conditional uses,” such as churches.

The Church brought suit against the City, alleging that this zoning scheme violates RLUIPA’s equal terms, unreasonable limitation, and substantial burden provisions, as well as the Illinois Religious Freedom Restoration Act and the First Amendment Free Exercise Clause. The Church’s complaint sought declaratory, compensatory, and injunctive relief, but the Court limited its decision to the Church’s request for a preliminary injunction (see Preliminary Injunction Order).

Preliminary injunctions, under federal law, may only be granted upon a showing that the moving party is likely to succeed on the merits, has no adequate legal remedy, and will suffer irreparable harm if the injunction is not granted. In assessing whether the injunction was proper as against the City, the Court explained:

The church has a likelihood of success on its RLUIPA equal-terms claim because, by subjecting the church to prior approval on its location and development when the city does not impose such a requirement on a theater in the very same district, the city has imposed a requirement that treats religious assembly on less than equal terms with nonreligious assembly.

Furthermore, the Court determined that, in the absence of an injunction, the Church and its congregation would suffer uncertainty and anxiety over whether it will ever find a home. This anxiety “touches on an intangible right that cannot be compensated with money.” The Court’s brief opinion assumes, with no analysis, that a theater is an adequate secular “comparator” for the purpose of the Church’s RLUIPA equal terms claim. The lack of analysis is rather surprising, given that the Seventh Circuit has adopted an “accepted zoning criteria” RLUIPA equal terms test, whereby a court must examine the text of the zoning regulations themselves in order to determine the regulatory purpose of a given zoning district and whether distinctions made between uses furthers such purpose. (See River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367 (7th Cir. 2010) (en banc)).

Interestingly, this is the second time in two years that the City of Markham has been to court on alleged RLUIPA violations (see our discussion of Church of Our Lord Savior and Jesus Christ v. City of Markham, available here). In 2015, the District Court for the Northern District of Illinois considered and declined to dismiss claims brought by the Church of Our Lord Savior and Jesus Christ against the City under RLUIPA’s substantial burden provision (see Memorandum Opinion and Order). These claims arose from the City’s denial of a conditional use permit for the Church of Our Lord Savior and Jesus Christ to operate on its property in a one-family residential district. Upon review, the Court noted that the specific facts surrounding the City’s denial remain unclear, and the City’s only proffered explanation, that the property did not provided enough parking, could not properly be considered on a motion to dismiss.

More recently, after reviewing the parties’ summary judgment motions and supplemental briefs, the Court entered an order striking each motion pending submission and review of the Church of Our Lord Savior and Jesus Christ’s application for a variance regarding the amount of parking required (see Order, dated Aug. 4, 2016).

The Church of Our Lord and Savior Jesus Christ v City of Markham, 1:15-cv-04079 (08/04/16)

Posted by: Patricia Salkin | March 27, 2017

6th Circuit Court of Appeals Invalidates Political Sign Ordinance

Editor’s note: This post originally appeared on the Rocky Mountain Sign Blog and is reposted with permission.  The original post is available here:

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman.  The city promptly enforced the code against Wagner with a letter threatening him with up to $1,000 in fines for each day of noncompliance with the code.

Wagner filed suit in federal district court with facial and as applied challenges to the code.  The district court initially found that the code was content based, since it distinguished between political signs and other forms of noncommercial speech.  In a 2014 decision, the Sixth Circuit reversed, applying the pre-Reed test for content neutrality.  The Supreme Court subsequently granted the plaintiff’s petition for writ of certiorari, vacated the 2014 decision, and remanded for further consideration in light of Reed, decided in June 2015.

On remand, the court of appeals first reviewed Wagner’s standing to challenge the sign code.  The court found Wagner had standing, because even though his sixteen square foot sign would be prohibited under other provisions of the Garfield Heights sign code, the city’s attempt to enforce the code against him entitled him to injunctive relief.

On the merits of the case, the Sixth Circuit found that the code was clearly content based and subject to strict scrutiny.  The city argued that the code satisfied strict scrutiny, i.e., that its interests in aesthetics and traffic safety were compelling and that the code was narrowly tailored to those interests.  The court disagreed, finding—like the Reed Court—that the code was “hopelessly underinclusive.”  Because Garfield Heights allowed political signs to be only six square feet while allowing other temporary signs to be twice as large, the court found that the code was unconstitutional.

Wagner v. City of Garfield Heights, 2017 WL 129034 (6th Cir. Jan. 13, 2017).

In 1991, the court declared a Bartow County zoning ordinance invalid because the ordinance had not been enacted in compliance with Georgia’s Zoning Procedures Law. It was not until 1993 that Bartow County enacted a new zoning ordinance, which included a provision addressing vested rights for nonconforming use that were acquired during the absence of a valid zoning ordinance. In 1994, the Bartow County Superior Court ruled in favor of Southern States, finding that in the absence of a valid zoning ordinance in existence at the time of its application to the EPD, Southern States acquired a vested right “in all the necessary certificates to be issued by Bartow County to get approval from the necessary agency to operate a landfill.” Bartow County then issued a certificate of zoning compliance, and, over the course of the following 20 years, the county zoning administrator continued to issue certification letters confirming Southern States’ vested right to use the property as a landfill. In 2013, the EPD issued a solid-waste handling permit to Southern States, allowing the land to be developed into a landfill.

In May 2013, Appellee Riverwood Farm Property Owners Association, Inc., a group of private property owners in Bartow County, filed a complaint for declaratory judgment and injunctive relief alleging that the approved landfill violated Bartow County zoning ordinances. The trial court granted partial summary judgment in favor of Riverwood Farm, and Southern States appealed. The Court of Appeals concluded that, under the plain language of Section 6.1.4, any vested right had lapsed after Southern States failed to commence the non-conforming use of its property within one year of the adoption of the zoning ordinance. On remand, the trial court granted partial summary judgment in favor of Riverwood Farm.

On appeal, the court found that the one-year requirement imposed by Section 6.1.4 was not a mere minimal condition on Southern States’ vested rights which was permitted under Georgia law. Here, the evidence before the trial court established that commencing use of the Bartow County property as a landfill within the full year was unfeasible. As such, Section 6.1.4, as-applied, was retrospective and injuriously impaired Southern States’ vested right to develop its land free from county use restriction; thus, the provision could not merely be read and applied prospectively. The court therefore declared this Section unconstitutional as applied to Southern States. Accordingly, the judgment of the trial court was reversed, and the case was remanded.

Southern States-Bartow County, Inc. v. Riverwood Farm Homewoners Association, 2017 WL 765890 (GA 2/27/2017)

In this case, Plaintiff Phantom Ventures, LLC, appealed the City of Chelsea Zoning Board of Appeals’ denial of a building permit to renovate a building for a live nude dancing venue with the sale of food and alcohol.  The Zoning Board found that live nude dancing was not permitted where the building was located. Plaintiff’s Amended Complaint sought a declaratory judgment that the decision of the Zoning Board was incorrect, or that the proposed use was grandfathered based on the prior owner’s use of the property. In the alternative, Plaintiff challenged Chelsea’s Code of Ordinances as unconstitutional.

At the outset, Defendants first argued that Plaintiff’s suit was mooted by the City of Chelsea’s adoption of a revised definition of “adult entertainment establishment.” The court rejected this argument, finding that Plaintiff was continuing to seek redress for the denial of the permit in 2015, and continuing to challenge the constitutionality of the Code so that it may obtain a permit in the present. As such, the issues presented were live and the parties were found to have legally cognizable interests in the outcome. Plaintiff first argued that it was entitled to a building permit when it applied because live adult nude dancing was not specifically delineated as an activity within the Code prior to the recent amendment, and the Zoning Board should have found that adult live nude dancing was an “Art use” permitted as of right in the Industrial District. The court determined that the Zoning Board did not err in rejecting Plaintiff’s contention that nude dancing fell within the definition of Art use, because Art use was defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction.” The court found that this definition referred to the creation of physical objects, rather than performance art such as dancing.

Plaintiff next argued that the business should be allowed as of right as a pre-existing use under state law. This argument was rejected by the court since the “grandfather” provision of the Massachusetts zoning enabling statute explicitly stated it “shall not apply to establishments which display live nudity for their patrons…” As to the constitutional claims, the court noted that Plaintiff failed to demonstrate that the Code was an unconstitutional total ban on “adult entertainment establishments”, as there was no evidence indicating that there was no available land in the Highway Business or Shopping Center Districts. The court also rejected the Plaintiff’s argument that the Code was facially unconstitutional because the special permit process vests too much discretion in the Zoning Board.  Here, the Board’s discretion was not unbridled due to the Code’s requirement that the Zoning Board consider six mandatory criteria and that the decision be written.

Lastly, the plaintiff claimed that the Code was an unconstitutional time, place, and manner restriction because it allowed “adult entertainment establishments” only in certain districts within the City. Here, the City failed to show that the Code’s requirements limiting “adult entertainment establishments” to the Highway Business or Shopping Center Districts were enacted as a means of ameliorating the secondary effects of adult entertainment. The court found this provision was severable, as striking the “adult entertainment establishment” portion of sections 34-300 of the Code would not render the remaining code contradictory or incoherent. Accordingly, the court remanded the case to the Zoning Board for further consideration.

Phantom Ventures LLC v. DePriest, 2017 WL 903456 (D. Mass. 3/7/2017)

Editor’s Note: The following information appears in the USDOJ’s March 2017 Religious Freedom Focus Newsletter available:

On March 10, a federal court in Michigan approved a settlement of the United States’ suit against the City of Sterling Heights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which alleged that the city illegally denied a mosque approval to build in the city.

The United States had filed suit on December 15 alleging that the city discriminated against the American Islamic Community Center (AICC) on the basis of religion when it denied AICC zoning approval for a mosque. The suit also alleged that the denial imposed a “substantial burden” on AICC’s religious exercise in violation of RLUIPA. The AICC, currently located in Madison Heights, Michigan, sought the Sterling Heights location because it is more centrally located for its members and its current space has become too small to accommodate its worship, educational and social needs.

This case involved the consolidated appeals of Aram K. Jerrehian, Jr. and of Jeffrey and Marsha Perelman, who challenge a land use order of the Court of Common Pleas of Montgomery County. The Perelmans challenge the trial court’s holding that Jerrehian’s lot had been created by a valid subdivision and had not merged into an adjacent lot, and that he could not build a house on the lot without a variance from the dimensional requirements for a buildable lot. The trial court affirmed the order of the Zoning Hearing Board of Lower Merion Township without taking additional evidence.

On appeal, the Perelmans first argued the Zoning Board erred in finding the right-of-way to the Pool Lot actually existed, since it was not listed in subsequent deeds that transferred property burdened by the right-of-way. In response, Jerrehian claimed the right-of-way was listed in the 1961 Lot Location Plan and in the 1968 and 1972 Subdivision Plans, which were approved by the Township. As these findings were supported by the record evidence, the court rejected the Perelmans’ assertion that a right-of-way to the Pool Lot did not exist.

The Perelmans next alleged that the Zoning Board erred in holding that the Pool Lot was a lawfully existing separate lot, since it was not created by a valid subdivision. Here, the record indicated that in 1961, the Township engineer reviewed the subdivision and approved it. Furthermore, the Township engineer examined the surveys done on the four lots created, one of which was the Pool Lot, in the estate distribution. The Township Engineer then approved the Lot Location Plan, which depicted the courses and distances of the four lots, including the Pool Lot. Accordingly, the court found that the Zoning Board did not err in concluding that the Pool Lot was a valid and lawful lot.

Lastly, the Perelmans argued that even if the Pool Lot actually existed, it merged with another lot (103 Cherry Lane). The Perelmans presented evidence that the Pool Lot (115 Cherry Lane) and 103 Cherry Lane were used as a single lot by the O’Malley family from August 2003 through January 2005, who installed a circular driveway that used the common boundary line of the two lots. The two lots were also conveyed to the O’Malleys by a single deed in 2003. Despite this, the Zoning Board found that even though the O’Malleys took title to the property by a single deed, that deed separately described each lot. Moreover, each lot had a separate tax parcel number. Additionally, the O’Malleys sold 103 Cherry Lane in 2005, and then sold the Pool Lot to Jerrehian in 2006. The court found that the O’Malley’s “use of a driveway in the easement area” did not satisfy the Perelmans’ heavy burden of proof, and no merger took place. Accordingly, the Court sustained the appeal of Jerrehian and rejected the appeal of the Perelmans.

In re Jerrehian  2017 WL 875287 (PA Cmlth 3/6/2017)


Kerley Family Homes, LLC was granted a variance by the City of Cumming’s Board of Zoning Appeals, and neighboring homeowners aggrieved by the variance sought to appeal the BZA’s decision by filing a complaint seeking a writ of mandamus and an injunction in the superior court. The defendants argued that they were entitled to summary judgment against the homeowners because the zoning variance decision was a quasi-judicial decision that could be challenged in the superior court only by a petition for certiorari under OCGA §5-4-1. The superior court denied summary judgment and granted both sets of defendants’ requests for certificates of immediate review. The City defendants and Kerley defendants the filed applications for interlocutory appeal in the Court of Appeals, which was transferred to the Supreme Court of Georgia.

At the outset, the court noted that the inconsistency between the local-ordinance requirement and general principles of appellate procedure law created “a trap for unwary litigants, lawyers, and judges trying to determine if appeals of zoning decisions to the superior court properly proceed by certiorari or mandamus”. The court found that the determination of whether a decision is quasi-judicial must be made under the local-ordinance requirement, because a decision that is not quasi-judicial cannot be appealed by certiorari under OCGA § 5-4-1 even if the local ordinance explicitly provides for certiorari. Moreover, the stare decisis factors weighed heavily in favor of disapproving other cases that had expressed the local-ordinance requirement in the context of zoning variances or conditional or special use permits, to the extent that these cases held that a quasi-judicial decision of a local zoning board could be appealed to the superior court by mandamus rather than certiorari based on what the local ordinance said about such appeals.
Setting aside the local-ordinance requirement, the court found that OCGA § 5-4-1 applied in this case and that the Homeowners were entitled to seek review of the BZA’s quasi-judicial decision granting a zoning variance to Kerley by petition for certiorari in the superior court, as certiorari was available and mandamus was not. As such, the court found the trial court erred in denying the City and Kerley defendants’ motion for summary judgment and allowing the Homeowners’ petition for mandamus to proceed. The court also reversed the trial court’s ruling denying summary judgment and allowing the Homeowners’ claim for an injunction to proceed, since a petition for certiorari provided an adequate legal remedy.

City of Cumming v. Flowers, 2017 WL 875041 (GA 3/6/2017)


Friends of the Motherhouse, a nonprofit corporation, and Raymond Foote and Barbara Weed appealed from a summary judgment entered by the Superior Court in favor of the defendant City of Portland and intervenors Sea Coast at Baxter Woods Associates, LLC, and Motherhouse Associates LP (collectively “Sea Coast”). Following the Council’s rezoning action, Sea Coast applied to the Planning Board for a four-lot subdivision of the entire property, as well as a subdivision in the Motherhouse consisting of sixty-six affordable and twenty-two market-rate senior housing units. Friends filed a two-count complaint for declaratory judgment in the Superior Court seeking to invalidate the Council’s rezoning action. The complaint asserted that the comprehensive plan required that R–5A zones be created only by contractual or conditional rezoning, and that the map and textual amendments were “substantively inconsistent with the Comprehensive Plan’s goals and policies for the Deering Center/Stevens Avenue neighborhood.” The trial court denied Friends’ complaint that the Portland City Council’s rezoning of a parcel owned by Sea Coast was invalid.

At the outset, the court noted that a zoning or rezoning action may be in basic harmony with the comprehension zoning plan so long as it strikes a reasonable balance among the municipality’s various zoning goals or overlaps considerably with the plan. On appeal, Friends argued that the amendments were inconsistent with the comprehensive plan because the Council did not employ conditional or contract zoning. The court disagreed, finding that the comprehensive plan did not specify a particular method for rezoning a property as R–5A, and was silent regarding conditional or contract zoning in the section defining the R–5A zone. Instead, the comprehensive plan merely stated that “the R–5a is applied though rezoning when a site and development proposal meets the intent of this zoning classification.”

The court determined that basic harmony with the comprehensive plan, rather than harmony with the former zoning ordinance, was the test that the court should apply when reviewing the Council’s zoning decision.  Because that test was satisfied in this case, the court affirmed the trial court’s holding that Sea Coast was entitled to judgment as a matter of law.

Friends of Motherhouse v. City of Portland, 152 A.3d 159 (ME 12/8/016)


The Environmental Driven Solutions, LLC (“EDS”) received a permit from the Commission for a waste oil treating plant in Dunn County, which allowed EDS “to recycle and treat waste crude oil obtained from drilling operations, pit oil, swab oil, acid oil, tank bottoms, oil spills, pipeline breaks, skim oil from saltwater disposal tanks, and other waste crude oil related to oil and gas exploration and production.” After EDS began constructing the treating plant, the County issued notices of “violation and order to abate,” claiming the treating plant could not be constructed on the site because the property was zoned “Rural Preservation,” and “Salt Water Storage Tank & similar facilities” were not an “allowed use.” EDS then applied to the County to rezone the property, but the County denied the application because its Land Development Code required 120 acres to rezone and EDS’s property comprised only 118.58 acres. Next, EDS applied for a conditional use permit, but the County denied the application. Following this denial, EDS brought a declaratory judgment action against the County, and the district court held that the Commission had exclusive jurisdiction to determine the location of the oil and gas waste treating plant and the County’s zoning ordinances were preempted by state law.

On appeal, the County contended that the district court erred because the Commission did not have the power to permit oil waste treating facilities that were barred by a county’s “properly-enacted zoning ordinance and land use comprehensive plan.” The court found, however, that the Commission had the express authority under N.D.C.C. § 38– 08–04(2)(a) to regulate “all other operations for the production of oil or gas,” and a “treating plant” qualified as an “other operation” for the production of oil and gas. Furthermore, the comprehensiveness of the state laws and regulations suggested that the Legislature intended to preclude enforcement of local laws on the siting of waste treating plants. While the County claimed it had “shared jurisdiction” with the Commission over the location of the treating plant based on the permit’s requirement that the treating plant “comply with all applicable local … laws and regulations,” the court determined that the Commission’s order would supersede any county zoning requirements. Accordingly, the court affirmed, holding that the County had no authority through its zoning regulations to veto the Commission’s siting of an oil and gas waste treating plant.

Environmental Driven Solutions, LLC v. Dunn County, 2017 WL 899992 (ND 3/7/2017)

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