Smith Communications, LLC installs and maintains wireless communications facilities, commonly referred to as “cellular towers” or “personal wireless facilities.” In February 2013, Smith applied for a conditional use permit to build a 300–foot–tall cellular tower in Washington County. The Planning Board approved Smith’s CUP application in early March 2013, and local residents appealed the Planning Board’s decision to the Quorum Court. The residents’ arguments focused on “safety,” “property values,” the tower’s “fit” with the surrounding area, the tower’s proximity to their homes, and concerns of residents who had purchased their homes specifically because of the surrounding scenery and views, which the proposed tower would allegedly “destroy.” At the end of the meeting, on June 24, 2013, members of the Quorum Court voted 10 to 3 to reject Smith’s CUP application. The members who voted against the application believed it failed to meet the requirements of Zoning Code § 11–200(a). The district court upheld Washington County’s denial of the application.

The Act provides that district courts “shall hear and decide” actions challenging a local government’s denial of permission to construct a cellular tower “on an expedited basis.” Smith argued that the district court failed to provide expedited review because the court should have “ordered the issuance of a permit” upon concluding that Washington County had failed to provide an adequate written explanation for its denial. However, the court noted that a locality may rely on detailed meeting minutes to provide its written reasons for denial, so long as the locality’s reasons are stated clearly enough to enable judicial review. Here, the June 4, 2013 meeting minutes alone contained thirty pages of detailed notes from the participants’ presentations and discussions about the tower. Accordingly, the court found Washington County did not violate the Act by relying on these meeting minutes to provide the written reasons for its denial, and Smith received adequate notice of the reasons for the Quorum Court’s denial.

Next, Smith argued that Washington County violated the Act by denying the CUP application without substantial evidence supporting its decision. However, the court found that the Quorum Court analyzed the 300–foot tower’s placement and proximity to nearby residences and reviewed evidence, including pictures and simulations, of the specific areas in question. Thus, the court held that the Quorum Court had substantial evidence on the record as a whole that the tower’s scale, its proximity to residences, and the surrounding environment made approval inappropriate in view of the considerations outlined in Zoning Code § 11–200(a). The trial court’s decision was therefore affirmed.

Smith Communications, LLC v Washington County, Arkansas, 2015 WL 2193027 (8th Cir. 5/12/2015)

The opinion can be accessed at:

In 2007, PromiseLand Church West, Inc. sought to develop a 53–acre project on Highway 71 in Austin to build a chapel, multipurpose building, and an outdoor amphitheater. Hill Country and Covered Bridge were residential neighborhood associations in the area surrounding the Church’s construction site, and both opposed the Church’s request to build an outdoor amphitheater, arguing that the Church’s proposed amphitheater would be used for outdoor entertainment events, including live music performances, concerts, ballets, graduations, and theatrical performances. Guernsey, the City’s planning and development review director, sent an email dated December 23, 2008 in which he stated since the worship building and the outdoor amphitheater were both being primarily used for religious assembly uses, there was no problem with these two facilities co-locating on the property. On July 6, 2011, the Church applied for a site plan permit to begin construction on the project, including the amphitheater, and the City approved the application on October 12, 2011, subject to a restrictive covenant.

On October 21, 2011, representatives from Hill Country filed an administrative appeal with the City regarding the City’s use determination of the Church site, and on October 27, 2011, an attorney for the City rejected Hill Country’s appeal and stated that the appeal was untimely because it was not filed within twenty days from the City’s use determination by Guernsey on December 23, 2008. Then, on December 12, 2011, counsel for Hill Country sent written correspondence to the City contesting the City’s October 27, 2011 letter. Hill Country argued that its appeal did not relate to Guernsey’s December 23, 2008 email, but rather to the City’s use interpretations and determinations made in the October 2, 2011 restrictive covenant. Hill Country requested that the City forward its appeal to the Board of Adjustment. The City maintained its position that absent “clearer requirements” from the code of ordinances, it would treat Guernsey’s December 23, 2008 email as an “appealable decision” and declined to follow the appeal.

As to Hill Country and Covered Bridge’s ultra vires claims against Guernsey, absent waiver by the Legislature, sovereign and governmental immunity generally deprive courts of subject-matter jurisdiction over suits against the State, its agencies, or officers or employees acting within their official capacity. Here, Section 25–2–2(A) of the land development code stated that “the director of the Planning and Development Review Department shall determine the appropriate use classification for an existing or proposed use activity.” Thus, Guernsey had the statutory discretion to make these determinations and actions. However, this was not true of Hill Country and Covered Bridge’s second set of ultra vires claims relating to Guernsey’s failure to forward an appeal of his actions to the City of Austin Board of Adjustment. Here, the court determined that Hill Country had appropriately cited the controlling provisions related to administrative appeals procedures and the ministerial duties that respectively belong to Guernsey and the Board of Adjustment, and Guernsey’s failed to comply with the controlling provisions and failed to perform the purely ministerial act of forwarding its appeal to the Board of Adjustment. Since the due process claims were dependent on the ultra vires finding, they were found unripe. Accordingly, the court affirmed the trial court’s judgment in part and reversed and remanded to the trial court to hear Hill Country’s ultra vires action based upon Guernsey’s failure to forward Hill Country’s appeal to the Board of Adjustment.

Hill Country Estates Homeowner’s Association v Guernsey, 2015 WL 2160510 (TX App. 5/7/2015)

The opinion can be accessed at:

On February 13, 2014, Green Hills Mixed Use, LLC submitted an application to the Metropolitan Nashville Planning Department for approval of a proposed 2.67 acre mixed-use development in Nashville. The property was located in a Shopping Center Regional (“SCR”) base zone and included an urban design overlay designated as the Green Hills Urban Design Overlay (“Green Hills UDO”). Andrew Collins, a Planner II for the Department, presented the request for approval, stating that the project met “all of the standards of the UDO and base zoning” and that it was developed under the property’s existing entitlements; the Commission voted unanimously to approve the request. On April 21, 2014, the Green Hills Neighborhood Association and Cecelia Smith (“Petitioners”) filed a petition for a writ of certiorari in Davidson County Chancery Court seeking review the Commission’s approval of the plan. The court entered an order affirming the Commission’s action and dismissing the writ with prejudice. Petitioners appealed, contending that the Commission illegally delegated its authority to approve the final site plans to the Executive Director, that the staff misinterpreted and misapplied the UDO standards when it approved the development, and that the 17–story tower violates the Metro Zoning ordinance. 

The court first noted that Tenn.Code Ann. § 13–4–103 grants planning commissions broad authority to effectuate municipal planning; there is no explicit prohibition on the delegation of authority to the Commission’s staff or employees. Thus, the procedure set forth in the rule constituted an administrative function; as such, it did not contravene the general rule against the delegation of functions which involve the exercise of discretion and judgment. Accordingly, the court held that the plan was presented to and approved by the Commission, and the procedure followed was lawful. The court then addressed Petitioners’ contention that the 17–story tower violated Section B.5 of the Green Hills UDO, which sets a 60–foot maximum building height at the “build-to line” of Hillsboro Pike. Here, the court discussed that the UDO contained guidelines for mixed use developments “constructed in accordance with the ‘build-to’ line”, which stated, “as an incentive, the UDO regulations should provide a bonus for mixed use development”; one such incentive encouraged by the UDO is the inclusion of residential space. The effect of the incentives, as noted by the Commission in its brief, could result in “taller buildings being built.” Since the UDO allows the height limitation to be exceeded provided that each floor above the height limit is “set back at least 10 feet from the floor below it”, the Green Hills plan accomplished this by moving the tower more than 130 feet back from the “build-to-line. 

For the aforementioned reasons, the court found the Commission did not exceed its jurisdiction or act illegally in its consideration of the Green Hill application, and the approval of the application was supported by material evidence. Accordingly, the judgment of the trial court was affirmed. 

Green Hills Neighborhood Assoc. v Metropolitan Government of Nashville and Davidson County TN, 2015 WL 2393977 (TN App. 5/18/2015)

Plaintiffs owned a parcel of land in the Druid Hills neighborhood of DeKalb County, which had been designated an historic district. Under that designation, property owners are required to obtain a Certificate of Appropriateness (COA) under certain circumstances if they want to make changes to their home that would change the exterior appearance of existing buildings. Plaintiffs sought to subdivide the property and believed that they did not need a COA to do so, however the Druid Hills Civic Association opposed this action. The Plaintiffs then brought action against current and former county officials under § 1983 alleging violations of their constitutional rights, and state law claims for interference with enjoyment of property and for abusive litigation.

In their § 1983 claim, Plaintiffs asserted that Defendants violated their substantive due process right to the lawful use of their property. The court noted that in making a substantive due process claim asserting that government officials have abused their power, the Plaintiff must allege facts which “shocks the conscience” and violates the “decencies of civilized conduct.” Here, there was no indication that any Defendant engaged in self-dealing or graft or was motivated by anything other than a principled opposition to Plaintiffs’ plans. Moreover, Defendant Rader’s belief that it was necessary for Plaintiffs to obtain a COA did not lack any rational basis. Finally, Plaintiffs did not challenge the Dekalb County zoning ordinances, and presented no argument that there was no economically viable use for their land based solely on their inability to subdivide their property. Accordingly, the court concluded that Plaintiffs have failed to allege facts sufficient to state a claim that their constitutional rights have been violated, and their claim brought pursuant to 42 U.S.C. § 1983 was therefore dismissed.

Buckler v Rader, 56 F. Supp. 3d 1371 (ND GA 10/28/2014)

Plaintiff sought review a determination of the Zoning Board of Appeals that denied the petitioner’s appeal of a Code Enforcement Appearance Ticket issued by the respondent Town Building Inspector. The court below denied the petition and dismissed the proceeding and plaintiff appealed.

Contrary to the plaintiff’s contention, the court found the plaintiff failed to establish that its use of the subject property as a maintenance garage and truck storage facility was a preexisting nonconforming use which existed at the time of the enactment of the Town of Mount Pleasant Zoning Code in 1928, and that it continued uninterrupted thereafter except for a period of one year or less. Here, the Zoning Board of Appeals of the Town of Mount Pleasant determined that a use variance issued in 1931 to a prior owner limited the subject property to a specific use, a sand and gravel operation, which was discontinued in or around 1950. The court determined petitioner’s subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. Finally, the contention that the defendants were equitably estopped from prohibiting the plaintiff from operating a maintenance garage and truck storage facility on the subject lot was likewise found to be without merit, since the evidence submitted by the petitioner did not establish that there were “exceptional circumstances” involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision. Accordingly, the court affirmed the Supreme Court’s denial of the petition and dismissal of the proceeding on the merits.

Bradhurst Site Construction Corp. v Zoning Board of Appeals, Town of Mount Pleasant, 2015 WL 2215441 (NYAD 2 Dept. 5/13/2015)

Plaintiffs, the Detroit Memorial Park Association, Inc. (“DMPA”) and Greater Grace Temple (“Greater Grace”), wanted to use a parcel of property in the City of Detroit, which was formerly a golf course, as a cemetery. In this action, Plaintiffs asserted two federal Constitutional claims: 1) that they were denied due process with respect to the zoning decisions relating to the property (Count (III); and 2) that the zoning decisions resulted in the taking of private property without payment of just compensation (Count IV). Plaintiffs also ask the Court to exercise supplemental jurisdiction over two state-law claims: 1) an appeal of the zoning decision (Count I); and 2) alleged violations of Michigan’s Open Meetings Act (Count II).

As to the state law claims, the court found that party aggrieved by a decision of the zoning board of appeals “may appeal to the circuit court for the county in which the property is located,” the “circuit court shall review the record and decision,” and the circuit court reviewing a decision by a zoning board of appeals “may affirm, reverse, or modify the decision, order further proceedings on conditions that the court considers proper,” or “may make other orders as justice requires.” Thus, these two claims were a matter for the court, rather than a jury to decide. Accordingly, the court declined to extend supplemental jurisdiction over Counts I and II.

Defendants’ primary argument is that under the Burford and Pullman abstention doctrines, this Court should abstain from hearing Plaintiff’s federal claims (Counts III & IV). Defendants’ Burford abstention argument was rejected because: the Defendants have not made a strong showing of the coherent state policies or highly complex, unsettled state law issues required for Burford abstention; and the Sixth Circuit has expressly rejected the very cases that Defendants rely on. Here, unlike the cases cited by the Defendants, this case did not require the state as a mandatory party to appeals of zoning decisions. Similarly, in Pullman, the Supreme Court held that when state court construction of an unclear state statute might narrow or eliminate a federal constitutional question, abstention may be justified under principles of comity in order to avoid “needless friction with state policies.” The court noted that the Pullman abstention is “appropriate only when state law is unclear and a clarification of that law would preclude the need to adjudicate the federal question.” Because Defendants had not identified any unclear state laws that are at issue in this case, the Pullman abstention was not warranted. Thus, the motion to dismiss the two federal claims was denied.

Detroit Memorial Park Association, Inc. v City of Detroit Board of Zoning Appeals, 2015 WL 2343879 (ED MI 5/14/2015)

Plaintiff Ernie Telian commenced the instant action pursuant to 42 U.S.C. § 1983, alleging that Defendants, his ex-wife and the Town of Delhi officials, violated his Fifth and Fourteenth Amendment rights. After the Court granted Defendants’ motions to dismiss with leave to amend certain claims, Plaintiff filed an Amended Complaint. Defendants then moved to dismiss the Amended Complaint.

Plaintiff’s Amended Complaint pointed to two other individuals who allegedly “constructed buildings without first obtaining a permit, and were, after being notified by the Town of the need for a permit … granted permits with no prosecution.” One of these comparators was Plaintiff’s ex-wife, Defendant Sherri Telian. The prior Court concluded that, despite the fact that she was equally responsible for building the structures that were the subject of the court case but faced no actual punishment, Plaintiff had not alleged that Sherri Telian was a proper comparator because the Plaintiff had not alleged that any of the Defendants were actually involved in the decision to allow her to avoid prosecution. Despite this, the court held that the Amended Compliant, if proved, would indicate that the decision to expose only the Plaintiff to prosecution for violating zoning ordinances was the result of an arrangement and agreement between the Defendants, the prosecutor, and the Town Justice. Accordingly, the court found that the Plaintiff alleged a plausible class-of-one claim, and that Sherri Telian was a valid comparator.

As to the state claims, unlike Plaintiff’s earlier allegations, where Sherri Telian only reported violations and the other Defendants acted independently to prosecute them, Plaintiff now alleged that Sherri Telian knowingly and actively participated in a careful scheme to bring false allegations and played a particular role in ensuring that those allegations damaged the Plaintiff. The court found that this change was “just enough” to survive the motion to dismiss. However, as to the malicious prosecution claim, the court found that the case against the accused ended when the Plaintiff and the Town entered into an agreement to withdraw the appeals. Because, a termination is not favorable “if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused” the Plaintiff failed to prove the favorable termination element of this claim, and it was therefore dismissed. Finally, Plaintiff’s conspiracy claim under Section 1983 survived the Defendant’s motion to dismiss when viewed in a light most favorable to the Plaintiff.

Telian v Town of Delhi, 2015 WL 2249975 (NDNY 5/13/2015)

Under the Washington State Medical Use of Cannabis Act (MUCA), qualifying patients may participate in “collective gardens” to pool resources and grow medical marijuana for their own use. However, MUCA granted cities and towns the power to zone the “production, processing, or dispensing” of medical marijuana. Given this state law, the city of Kent enacted a zoning ordinance that prohibits collective gardens within its city limits. The Plaintiffs, Cannabis Action Coalition, sued the city of Kent, its city council, and its mayor Suzette Cook (collectively Kent) in King County Superior Court, seeking to have the Ordinance declared preempted and invalid. The Superior Court ruled in Kent’s favor and upheld the Ordinance, and the Court of Appeals affirmed.

The Supreme Court noted that a statute preempts the field and invalidates a local ordinance within that field if there is express legislative intent to preempt the field or if such intent is necessarily implied from the purpose of the statute and the facts and circumstances under which it was intended to operate. Here, the MUCA expressly contemplates local regulation of medical marijuana, and recognizes local authority by granting cities and towns the power to zone the “production, processing, or dispensing” of medical marijuana. The court then discussed conflict preemption, and found that whether MUCA conflicts with the Ordinance turns on the scope of Kent’s power to zone medical marijuana activities under RCW 69.51A.140(1). Since the relevant of the Ordinance’s text drew no distinction between commercial and noncommercial operations, the court turned to the plain and ordinary meaning; holding that the plain and ordinary meaning of the provision that a city may adopt zoning requirements for the “production, processing, or dispensing” of medical marijuana provides no reason to limit these concepts to only commercial activities. Likewise, the court found the provision was not limited to only licensed producers.

Accordingly, the court found Kent had properly exercised its authority under RCW 69.51A.140(1) to zone the land use activity involving collective gardens. Because the Ordinance was consistent with state law and was not preempted, the holding of the Court of Appeals was affirmed.

Cannabis Action Coalition v City of Kent, 2015 WL 2418553 (WA 5/21/15)

The opinion can be accessed at:

On November 25, 2014, the Court entered Findings of Fact and Conclusions of Law ruling that the City of Jacksonville Beach had violated the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act when it refused to grant the Church of Our Savior a conditional use permit (“CUP”) to construct a church. The Court then proceeded to the remedy phase. Using the least intrusive remedy consistent with the RLUIPA violation it had found, the Court stated its intention to direct the City to grant a CUP but to allow the City to consider “reasonable conditions on the permit in accordance with the City’s Land Development Code (“LDC”) and subject to its procedures.” Rather than working together, the parties chose to engage in unnecessarily contentious litigation on topics like how and where they should negotiate on possible conditions, what was permitted to be said in court filings, the correctness of the Court’s original decision, the appropriate remedy, and the amount of attorneys’ fees and costs to which the Church’s attorneys are entitled. As a result, the Court entered an Order directing the City to grant the Church a CUP containing any reasonable conditions. The City Planning Commission held a meeting on March 9, 2015, at which time it issued the CUP with certain conditions. On April 10, 2015, the Court conducted a hearing on three issues: the City’s motion for reconsideration of the Court’s original ruling finding the City to be in violation of the Equal Terms provision of RLUIPA, the Church’s objections to some of the conditions imposed by the City on the CUP, and the Church’s motion for attorneys’ fees and costs.

The motion of reconsideration was denied by the court since the City acknowledged there was no newly-discovered evidence and pointed to no intervening change in controlling law since the Court issued its Findings of Fact and Conclusions of Law. Instead, the City merely tried to more fully present the law and the facts than it did originally, under the guise of helping the Court avoid a supposedly manifest error. The court deemed this to be an attempted “second bite of the apple” and denied the motion. As to the objections to the CUP, however, the court found some of the Church’s objections to have merit. The court agreed that there should be no provision prohibiting future variance applications, nor a condition mandating the Church to secure development plan approval of its proposed facilities “within twelve months of issuance of the conditional use permit …” Other conditions, such as imposing a pedestrian only easement, and requiring the erection of a fence, were permitted.

The Church sought $851,352.59 in attorney’s fees and costs. The City responded that the rates and the hours were excessive and contends that no enhancement was appropriate, particularly since the Church succeeded on just one of eight counts it originally filed against the City. In evaluating whether the fees requested are reasonable, the court considered the reasonable hourly rate multiplied by “the number of hours reasonably expended on the litigation,” the product of which was the “lodestar” reasonable sum the party may recover. Here, the court found the amount of hours and fees charged to be excessive of the median, and therefore found that an across-the-board reduction of 50% appropriately accounted for all of the factors the Court has considered in this Order. Consequently, the Court awarded $281,535.68 in fees and $23,612.08 in expenses, for a total of $305,147.76.

Church of our Savior v City of Jackson Beach, 2015 WL 2383662 (MD FL 5/19/2015)

Posted by: Patricia Salkin | June 8, 2015

EPA Releases EJSCREEN Screening and Mapping Tool This Week

This week the U.S.  Environmental Protection Agency (EPA) released EJSCREEN, an environmental justice screening and mapping tool that uses high resolution maps combined with demographic and environmental data to identify places with potentially elevated environmental burdens and vulnerable populations. To access the tool, visit:

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