Leslie Fissmer, individually and as trustee of the Leslie S. Fissmer Revocable Trust, appealed from a judgment of the Superior Court, which affirmed a decision of the Cape Elizabeth Zoning Board of Appeals that found the Cape Elizabeth Code Enforcement Officer had properly issued a building permit to Cunner Lane LLC. Fissmer, an abutting property owner, contended that the ZBA erred by determining that a Declaration of Covenants applicable to Cunner Lane LLC’s property satisfied a requirement of the Cape Elizabeth Zoning Ordinance that “legally binding arrangements exist to provide for the long-term maintenance of a private road” before a permit could be issued allowing construction on a parcel located on that road.

At the outset, the court noted that the clear purpose of section 19–7–9(A) was to ensure that emergency vehicles would be able to obtain access to a new lot located on a private road. Furthermore, because that requirement must be met for the CEO to properly issue a building permit for a structure located on that lot, the road must be maintained to allow emergency access throughout the year. With that legislative intent in mind, the court determined that the provision’s reference to a “road” alluded to the entire part of the road from its intersection with a public way to at least the location of the proposed structure, rather than merely the section of the road abutting a permit applicant’s property.

Moreover, notwithstanding the absence of findings by the CEO, the issuance of the building permit was erroneous as a matter of law because there was no evidence that could support the CEO’s determination that Cunner Lane LLC had met the requirements of section 19–7–9(A)(2). Since there was no competent evidence in the record to support the determination that Cunner Lane LLC’s application satisfied section 19–7–9(A)(2), the court vacated the Superior Court’s judgment and remanded the case to the ZBA with instructions to issue a decision determining that the CEO’s approval of Cunner Lane LLC’s permit application was not “in conformity with the provisions” of the Cape Elizabeth Zoning Ordinance.

Fissmer v. Town of Cape Elizabeth, 170 A.3d 797 (ME 9/19/2017)

The Suffolk County Planning Commission asked the Committee on Open Government whether it would be permissible for a member to participate via videoconference from the Jet Blue terminal at the JFK airport.  Despite the concerns raised by a County Attorney that the public would not have easy access to fully observe the participation of that member since the location is “not a true public space,” the Committee noted that in other instances of remote participation it could be equally difficult if not more so.  The Committee distinguished between meeting where all or a majority of the members of a public body meet in a restaurant and meetings where one member seeks to participate remotely.

The full opinion can be viewed here: https://docs.dos.ny.gov/coog/otext/o5535.html

Editor’s Note: This post originally appeared on Ancel Glick’s Municipal Minute Blog and is reposted with permission.  See: http://municipalminute.ancelglink.com/2017/10/homeless-shelter-qualified-as.html

A housing authority took over ownership of property that had previously been used as a private assisted living facility.  The authority stopped operating the assisted-living facility, and the property stood vacant for several years.  After submitting a request for proposals for ways to use the vacant property, the housing authority entered into negotiations to lease the property to a not-for-profit organization called PADS. PADS sought to use the property as a transitional homeless shelter for chronically homeless adults.

The housing authority and PADS approached the county to determine what zoning approvals would be necessary for the operation of a homeless support program on the property. If the county classified PADS’ use as “assisted-living,” a conditional use permit was required.  However, if PADS’ use was classified as “government use,” no conditional use permit was necessary.  PADS submitted a change-in-use application to the county to change the use of the property from “vacant government” to “government use-no assembly space,” which would not require a conditional use permit.

Shortly after the county planning director granted the change-in-use request, several residents appealed the director’s decision to the county’s zoning board of appeals (ZBA).  The county ZBA reversed the director’s decision, finding that the use of the property by PADS was not a “government use,” despite the fact that the housing authority owned the property.

The court analyzed the county’s unified development ordinance, which classified “government use” as a “building or structure owned or leased by a unit of government and used by the unit of government in exercising its statutory authority.”  The residents argued that, since it was PADS that was using the property, and not the housing authority, the “government use” definition did not apply.

The court disagreed with the residents’ argument, citing the fact that the housing authority still owned the property.  The court also noted that the housing authority was authorized by state statute to contract with private entities to further its statutory goals of providing safe and sanitary housing for the disadvantaged. The court found that PADS’ use of the property to provide housing for homeless adults fit squarely within the housing authority’s statutory goals.

Based on all of these findings, the court found that the “government use” classification was proper because the property was (1) owned by the housing authority, a unit of government; and (2) used by the housing authority in exercising its statutory authority to contract with private entities, like PADS, in order to further its statutory goals.  As a result, no conditional use permit was required.

The Housing Authority of the County of Lake v. The Lake County Zoning Board of Appeals, et al., 2017 WL 4533971 (10/11/2017)

Editor’s note: This post originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.  See: https://www.rockymountainsignlaw.com/2017/09/amid-interstate-overpass-soap-opera-seventh-circuit-says-no-empirical-evidence-required-support-sign-regulation/#more-2261

The Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.

Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.

Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes.

The sign-poster, Gregory Luce, along with one of his fellow sign-posters, filed a lawsuit, alleging that the prohibition on signs, flags, and banners violated the First Amendment.  He also filed a claim under 42 U.S.C. § 1983, alleging the police chief of acting under the color of state law in committing First Amendment violations.  The police chief subsequently resigned.

The Seventh Circuit found that the police chief’s acts did not constitute state action, and thus he was not liable under 42 U.S.C. § 1983 for First Amendment violations.  The court went on to find that the regulation, which was content neutral, was not required to be supported by empirical evidence relating to traffic safety as the plaintiffs contended.  The Seventh Circuit observed that the Supreme Court never required speech regulations to be supported with empirical evidence, and that, in many cases, speech regulations have been upheld where supported by non-empirical evidence.  The court stated:

“It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time.”

While the court upheld the district court’s grant of summary judgment to the town with respect to overhead signs, the Seventh Circuit noted that the town had not offered any evidence to support the 100-foot buffer from the interstate highway.  The appeals court thus remanded to the district court for additional findings as to whether the 100-foot buffer was supported by a significant governmental interest and narrow tailoring.


Luce v. Town of Campbell, 2017 WL 4216238 (7th Cir. Sept. 22, 2017)

Editor’s Note: This posting originally appeared on the Rocky Mountain Sign Law Blog and is reposted here with permission.  See: https://www.rockymountainsignlaw.com/2017/09/restrictions-structures-dallas-park-upheld/#more-2264

The Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.

The district court denied Moore’s motion for a preliminary injunction.  On appeal, the Fifth Circuit determined that the structure rule was content neutral.  The court further determined that the city’s interests in public safety and coordinating uses of the park were substantial, and that the rule was narrowly tailored and Moore had alternative locations at which to conduct his activity (a nearby park area allowed his sketch board).  The court also found that the permitting requirement was not unconstitutional as a prior restraint, because the structure regulation did not have a close nexus to expression.  The court’s analysis concluded with a finding that the rule was not unconstitutionally vague.

Curiously, the court treated the regulation as one of speech instead of conduct.  Although the court’s analysis of the prior restraint claim noted that regulation lacked a close nexus to expression, the court could have disposed of the case by reviewing it under United States v. O’Brien, in which the court would not have been required to conduct the usual intermediate scrutiny analysis, reviewing the government’s interest in the regulation and narrow tailoring.  Regulations of conduct that have only incidental effects on speech need not be reviewed under that standard.

Moore v. Brown, 868 F.3d 398 (5th Cir. 2017).

Property owners Joseph and Janet Soppick appealed  an order of the Court of Common Pleas of Montgomery County directing them to pay $130,500, plus costs and interest, as a penalty for building a garage that did not conform to their building permit, in violation of the Borough of West Conshohocken’s Zoning Ordinance.  The Borough filed an amended complaint seeking $130,500 to penalize the Soppicks for having a garage that violated the Zoning Ordinance for a period of 435 days at a rate of $300 each day. The Soppicks argued that the Borough could not seek civil penalties while their appeal of the Zoning Officer’s Stop Work Order was pending. When the Soppicks lost their appeal, they dismantled the garage.

On appeal, the Borough argued that Section 617.2(b) of the Municipalities Planning Code (MPC) implicitly permitted a municipality to assess fines while an appeal of its order is pending. In response,  Soppicks claimed that their appeal of the trial court’s judgment affirming the Stop Work Order prevented the Borough from initiating a penalty action. The court found that in cases where landowners appeal an enforcement action, there is no conclusive determination of a violation upon which a municipality can seek sanctions until the landowners have exhausted their appeal rights. Here, when the Borough initiated enforcement against the Soppicks, there had not been a final determination that the Soppicks violated the Zoning Ordinance because they had not exhausted their appeal rights. As such, the court reversed the trial court’s holding, and found the Borough was not able to initiate enforcement proceedings under Section 617.2 of the MPC.

Borough of West Coshocken v Soppick, 164 A3d 555 (PA Commwlth 6/12/2017)

Editor’s Note: The below summary was prepared by the NYS Committee on Open Government,  See: https://www.dos.ny.gov/coog/foil_listing/findex.html

Motion by plaintiffs for a preliminary injunction enjoining defendants (Town) from enforcing an amendment to a Town building zone ordinance granted on the basis that plaintiffs had shown enough of a likelihood of success on the merits in establishing good cause for their claim of violation of the Open Meetings Law. At the outset of a public hearing regarding a controversial amendment to a local building zone ordinance, the proposed amendment was itself amended to delete a “24/7 time requirement” for free compressed air at local gasoline stations and only require the service station provide free compressed air “when the gasoline station is opened for business.” Members of the public that wished to speak to the “24/7” issue were reminded that the Town was not seeking a 24/7 time requirement. The Board reserved decision at the end of the public hearing. However, the resolution adopted several months later included the 24/7 requirement. The Court held that “[t]he express amendment to the amendment at the outset of the public hearing, to delete the ‘24/7 time requirement,’ followed by the unexplained reinsertion of that requirement in the resolution approved months later, appears on its face to be an attempt to circumvent the purpose of the Open Meetings Law.”

McCabe v. Town of Hempstead, Supreme Court, Nassau County, Index no. 6892/2016 (January 5, 2017)

Christopher and Clare Phillips Tayback challenged the Teton County Board of County Commissioners’ decision granting Four Shadows, LLC a Basic Use Permit (BUP) to use its property in Teton Village for temporary construction storage/staging. Four Shadows’ application stated that the need for construction storage/staging areas would continue until the planned construction of Teton Village was complete, which it estimated would take about twenty years. The district court ruled that the Taybacks had standing, but affirmed the Board’s decision. On appeal, the Taybacks argued the Board erred by granting the permit because Four Shadows’ use was not temporary and the Board did not consider alternative sites.

The court first noted that the Taybacks’ allegation that the dust and noise emanating from the staging site six days per week, for twelve hours per day, interfered with their ability to enjoy their property was sufficient to confer them standing. Having established standing, the court next addressed the Taybacks’ claim that the Board’s decision imposed “two decades or more of this continuing nuisance”. Here, the court determined that the Board granted Four Shadows a two-year permit to use the Granite Ridge site for construction storage/staging. When the permit expired, Four Shadows’ right to use the site would no longer be established. The court therefore found the fact that Four Shadows could potentially apply for a new permit when the current one expired was irrelevant to whether the Board properly granted this BUP for temporary use.

Lastly, the Taybacks contended the Board acted arbitrarily and capriciously by failing to consider alternative sites for Four Shadows’ construction storage/staging operation. The court rejected this contention as the Taybacks did not point to any provision in the LDRs or Master Plan that required the Board to consider alternative sites for construction storage/staging. Without any authority requiring the Board to consider alternative sites, the court held that the Board did not act contrary to law or arbitrarily and capriciously by failing to do so.

Tayback v Teton County Board of County Commissioners, 2017 WL 4296349 (WY 9/28/2017)

The Hamilton Township Zoning Officer issued an Enforcement Notice to Appellants Slice of Life, LLC and Val Kleyman, charging them with violations of the Township Zoning Ordinance for “use of the Property as Hotel and/or other types of transient lodging, Rental of Single Family Residential Dwelling for transient tenancies.” The Board denied Appellants’ appeal of the Enforcement Notice, and the trial court affirmed. The trial court found that based upon the totality of the circumstances, Appellants were not operating a single family dwelling, but instead conducting a short-term, transient lodging business, using the property as part of that business enterprise, with a clear profit motive.

On appeal, Appellees contended that a “transient lodging business” was not listed as a permitted use in any of the Zoning District A Use Classes. The record indicated that no evidence had been presented indicating that the guests of the tenant under the lease were legal occupants or part of the tenant’s family. However, Appellants claimed that the terms “transient lodging” and “transient tenancies” did not exist in the Ordinance, so Appellees could not improperly establish undefined permitted uses. The court agreed, finding that because of this ambiguity arising from these missing terms, the court was obligated to interpret the language of the Ordinance in favor of the landowner and against any implied extension of restrictions on the use of the property.

The Board next identified three areas of issue regarding the property related to the health, safety and welfare of the public: the occupancy limit, the septic system, and disruptive tenant actions. The court found that while there was conflicting testimony as to the number of bedrooms at the property, the record was devoid of evidence of any violation pertaining to occupancy. Additionally, the record indicated that there was never a septic system problem or violation at the property. Finally ,while the Pennsylvania State Police (PSP) came to the Property on at least five separate occasions after the Township gave Appellants the Enforcement Notice, no citations were issued by the PSP for any of the reported activities taking place on the property. Accordingly, the court held that the trial court’s findings were not supported by substantial competent evidence.

Slice of Life, LLC v Hamilton Township Zoning Hearing Board, 164 A. 3d 633 (PA Commwlth 8/7/2017)

Posted by: Patricia Salkin | October 8, 2017

GA Appeals Court Finds Sign Ordinance did not Apply to Interior Signs

In 2013, Monumedia, II, LLC installed three signs inside the windows of a building located in the Buckhead area of Atlanta that were visible to traffic on Peachtree Road. Soon thereafter, the City of Atlanta notified Monumedia that the signs violated City ordinances. The Georgia Department of Transportation (“DOT”) likewise informed Monumedia that the signs violated the Georgia Outdoor Advertising Control Act (“OACA”), OCGA § 32-6-70 et seq. Monumedia challenged the City’s decision before the Board of Zoning Adjustment (“BZA”), and challenged the DOT’s decision before an administrative law judge (“ALJ”) from the Office of State Administrative Hearings (“OSAH”), but was unsuccessful in both cases. Monumedia then sought review of these decisions in the Superior Court of Fulton County, which affirmed the agencies’ decisions in both cases.

The court first addressed Monumedia’s challenge to the superior court’s ruling, which affirmed the DOT’s decision that the signs in question were prohibited by the OACA. The relevant section of OCGA § 32-6-71 (14) provides: “Outdoor advertising” or “sign” means any outdoor sign, light, display, device, figure, painting, drawing, message, placard, poster, billboard, or other thing which is designed, intended, or used to advertise or inform, any part of the advertising or information contents of which are visible from any place on the main traveled way of the interstate or primary highway systems.” Here, it was undisputed that Monumedia’s signs were located inside the Franco building. Thus, Monumedia’s signs were not outdoor signs that were subject to regulation or prohibition under the OACA. Accordingly, the court reversed the superior court’s ruling.

The court next addressed Monumedia’s challenge to the superior court’s ruling affirming the BZA’s decision that the signs in question were prohibited by the City’s sign ordinances. Here, the court agreed with the City’s contention that, while signs located inside a building do not require permits, those signs could still be regulated by the City. However, the court found that in this case, any language referencing interior or signs inside of windows was absent from the ordinance at issue. Furthermore, the City Council of Atlanta later amended the ordinance to specifically address signs located inside of buildings, which further supported the court’s conclusion that the ordinance did not previously prohibit signs inside of buildings. The court therefore reversed the superior court’s ruling to this claim as well.

Monumedia II, LLC v Georgia Dept. of Transportation, 2017 WL 4400731 (GA App. 10/4/2017)

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