On July 23, 2013, Gerald and Cheryl Earney, the Mississippi Land Connection and Timber Company, LLC, and Wisconsin Bluff Sands, LLC (f/k/a Badger Bluff Sands, LLC) (collectively “Earney”), filed a Conditional Use Permit (CUP)  application for a nonmetallic mine and wet processing facility to be located on the Schoepps Valley Road in Waumandee. Earney sought to mine industrial sand for “gas and/or oil production and potential unknown markets.” In this case, Earney appealed an order affirming, on certiorari review, the Buffalo County Board of Adjustment’s decision to deny Earney’s application for a CUP to operate a frac sand mine in the town of Waumandee.

On appeal, Earney contended that the Board erroneously denied the CUP application based upon “reclamation standards prohibited by state law and upon road issues it had agreed not to consider.” Earney also contends that the Board was equitably estopped from considering the potential impact of the mining project on the Schoepps Valley Road. Here, the Board did not erroneously consider the environmental issues addressed by the reclamation plan, since the zoning ordinance at issue required the Board to consider a wide range of factors when determining whether to grant a nonmetallic mining CUP, including factors pertaining to topography, soil erosion, and drainage. Furthermore, even assuming that the elements of estoppel were met, the court concluded that the Board still acted within its jurisdiction, as the Board considered all seven of the factors outlined by the Buffalo County Zoning Ordinance and rejected the CUP application for numerous reasons—not just considerations pertaining to the road. The decision below upholding the denial of the CUP was affirmed.

State of Wisconsin ex rel Eavney v Buffalo County Board of Adjustment, 2016 WL 3884048 (WI App. 7/19/2016)

The Dellingers owned three tracts of real property in Denver, Lincoln County, North Carolina, which totaled approximately fifty-four acres. In May 2013, the Dellingers contracted with Strata Solar, LLC for it to lease a portion of their property for the installation and operation of a solar energy facility. On 23 July 2013, Strata Solar filed its conditional use permit application to construct a solar energy facility on a 35.25–acre portion of the land owned by the Dellingers. The Lincoln County Planning Board voted 4–4 on its recommendation to the Board of Commissioners for the conditional use permit, and the Board of Commissioners voted 3 to 1 to deny Strata Solar’s application. The Dellingers appealed.

On appeal, the Petitioners argued the superior court erred by affirming the Board’s decision and asserts Strata Solar’s application for a conditional use permit was supported by competent, substantial, and material evidence. In order for Strata Solar to make a prima facie showing of entitlement to a conditional use permit, it was required to present competent, substantial, and material evidence to meet the four conditions enumerated in the Ordinance. The Board found Strata Solar had met its “burden of production” but “found the evidence unpersuasive.” The Board denied the conditional use permit and concluded Strata Solar failed to satisfy the condition that the use would not substantially injure “the value of adjoining or abutting property.” The court found that Strata Solar’s experts provided enough evidence that the solar farm would not substantially injure the value of the adjoining property. Thus, the superior court erred by upholding the Board’s conclusion.

Petitioners next argued the Board erred by allowing Commissioner Oakes to participate in the Board’s vote on remand, because he was not on the Board when it rendered its original decision to deny issuing Strata Solar’s conditional use permit. The court found that although the addition of two new Board members had changed the membership composition of the Board from the time of the initial hearings in December 2013 to the time the Board reviewed the matter on 16 March 2015 after remand, both new Board members had an opportunity to read and review all of the evidence previously considered. Accordingly, the order of the superior court, which upheld the Board’s denial of Strata Solar’s application for a conditional use permit, was reversed and remanded.

Dellinger v Lincoln County, 20916 WL 3894687 (NC App. 7/19/2016)

Hunterstown Ruritan Club appealed from an order of the Court of Common Pleas of Adams County denying the Club’s appeal from a decision of the Zoning Hearing Board of Straban Township denying the Club’s application to expand a prior nonconforming use on property it owns in the Township. A portion of the property was informally used for go-cart racing beginning in the early 1960s. The Club eventually entered into a relationship with the Hunterstown Kart Club (HKC), some of whose members belonged to both organizations. The property was not zoned until 1992, when the township adopted its first zoning ordinance and found the go-cart racing to be a legal nonconforming use. On appeal the Club first argued that it never abandoned the nonconforming use of go-cart racing on Sunday. The Club maintained that the Board’s Finding of Fact No. 8 confirmed that fact and supported the Club’s position that the lawful nonconforming use includes racing on both Saturday and Sunday.

The court found that under the doctrine of natural expansion, “the right to expand [a nonconforming use] as required to maintain economic viability or to take advantage of increases in trade, is also constitutionally protected.” Since the issuance of a nonconforming use certificate does not grant a landowner any additional property rights, and the absence of a certificate does not deprive landowner of his right to continue a lawful nonconforming use, the failure to appeal from the terms of a certificate of nonconformance results only in a procedural disadvantage and not in a restriction or limitation of constitutionally protected property right. Thus, while the Board purportedly recognized the legal insignificance of the certificate, it nevertheless failed to recognize that the Club’s preexisting lawful use of the property for Sunday racing was entitled to constitutional protection.

Here, in addition to arguing that the increase in Sunday races over time was a natural expansion of a lawful nonconforming use, the Club acknowledged the concerns expressed by its neighbors and represented that it would comply with all aspects of the Ordinance. Accordingly, the court held that the Board erred in determining that the Club is not permitted to hold any races on Sunday, and the trial court erred in affirming the Board’s decision.

Hunterstown Ruritan Club v Straban Township Zoning Hearing Board, 2016 WL 3755520 (PA Commwlth 7/14/2016)

Valley of Love owns three adjacent parcels of real property on Empire Avenue in Park City, Utah. The two smaller parcels, consisting of 2,221 and 1,676 square feet, border Empire Avenue. The large parcel, consisting of 8,985 square feet, is landlocked behind the two small parcels. The parcels are located in a recreation commercial zone, which allows developments to have a maximum density ratio of 1.0. In 2009, Valley of Love sought approval of a proposed ordinance to combine the three parcels, which had not yet been subdivided3 for development, into a single platted lot of record. Park City approved Valley of Love’s proposal and enacted Ordinance 10–08, subdividing the three parcels into a single lot. Appellants, who owned property near the parcels, challenged Ordinance 10–08 in district court, asserting that Park City violated various provisions of the Park City Land Management Code (LMC) by adopting the ordinance. On appeal, Appellants challenged the district court’s grant of summary judgment in favor of Park City Municipal Corporation and Valley of Love LLC.

Appellants asserted that the district court erred in concluding that Park City’s adoption of Ordinance 10–08 did not conflict with the LMC. Appellants also argued that because setback requirements would have made the front two parcels unbuildable had they been subdivided into individual lots, the lot requirements had the effect of forever limiting the total buildable square footage on the three parcels to the amount allowed on the large parcel: 8,985 square feet. The court found that the setback requirements only indirectly affected the buildable square footage on a lot due to the impossibility of building a structure on a narrow lot while complying with the setback requirements, since those requirements did not actually alter the density allowance for the lot.

Appellants next argued that the increase in the potential buildable square footage of the three parcels created by Ordinance 10–08 violated the purposes of the LMC to prevent overcrowding and allow circulation of traffic. The court rejected this argument, noting that while the setback requirements might have resulted in an overall lower density if the parcels had been subdivided differently, this did not change the fact that the LMC allowed for a 1.0 density ratio. Moreover, the potential overcrowding or traffic problem that Valley of Love’s multi-unit dwelling posed was addressed in the process of approving the conditional use permit, and was not challenged in the district court.

Accordingly, since Park City did not violate any provision of the LMC or the General Plan in enacting Ordinance 10–08, the court affirmed the district court’s grant of summary judgment in favor of Appellees.

Olsen v Park City Municipal Corp., 374 P. 3d 52 (UT App. 5/19/2016)

George L. Grace, the former mayor of St. Gabriel, Louisiana, was charged with 13 counts of corruption-related offenses arising out of four schemes: the Hurricane Katrina Scheme, the City Vendor Scheme, the Real Estate Scheme, and the Cifer 5000 Scheme. A jury convicted Grace of seven of those counts, The Court of Appeals, affirmed in part, vacated his sentence, and remanded for resentencing. On remand, the United States District Court for the Middle District of Louisiana sentenced defendant to 240 months’ imprisonment, one year of supervised release, a $50,000 fine, and forfeiture of at least $22,000, and the Defendant appealed.

At the outset, the court found that it was constitutional for the district court to consider Grace’s acquitted conduct at sentencing under the preponderance of the evidence standard. Grace next argued that the district court erred by including the loss values of $18,000 for the Hurricane Katrina Scheme, $450,000 for the City Vendor Scheme, and $900,000 for the Real Estate Scheme. Grace contended that the $18,000 amount represented the value of a bribe and should not have been included cumulatively in the loss amount pursuant to § 2C1.1, and that the $450,000 amount should have been offset completely because the City of St. Gabriel received $450,000 worth of equipment and services in the exchange. However, Grace did not raise these arguments regarding the $18,000 and $450,000 values in the district court.

Grace next asserted that the $900,000 in the Real Estate Scheme represented a loan amount that was sought for the purchase of property in the scheme. While Grace acknowledged that he wrote a fraudulent zoning letter to support an attempt to obtain the loan, he argued that the amount of loss attributable to his letter was speculative and could not reasonably be determined. Despite this, he did not present any argument challenging the district court’s finding that the Real Estate Scheme separately entailed a $1,360,000 loss value stemming from Grace’s offer to direct money from various government programs to buy and develop property. Accordingly, the court held that Grace waived any such argument.

Finally, as to Grace’s Sixth Amendment claim, the district court heard Grace’s arguments for a lesser sentence based on his age and other factors but determined that a 240–month sentence, which the district court noted was lower than Grace’s original sentence and a substantial downward variance from his guidelines range of life imprisonment, was appropriate. The court therefore affirmed the decision of the lower court.

U.S. v Grace, 640 Fed. Appx. 298 (2/18/2016)

 

The petitioners, James Alger and Lois Alger, appealed an order of the Superior Court that affirmed a decision of the zoning board of adjustment (ZBA) for defendant Town of Goffstown. The ZBA approved an administrative determination by the town’s code enforcement officer (CEO) that defendant St. Anselm College installed its stadium lighting in compliance with a conditional use permit issued by the town’s planning board, and that the board had not imposed any “additional conditions of approval for the project.” On appeal, the abutters contended that the trial court’s order upholding the ZBA was both factually and legally erroneous.

The court found that there was evidence before the trial court from which it could have reasonably found that, based upon the balance of probabilities, the ZBA’s decision that the CEO’s determination that the college’s permit did not contain any implied conditions was lawful and reasonable. Here, the CEO’s final determination letter stated that the college complied with the approved plan and that the board “made no additional conditions of approval for the project.” To the extent that the abutters contend that simply displaying the out-of-date aerial photograph, showing a buffer between the parties’ properties in a condition that no longer existed, the court noted that the college “was not relying on the vegetation to block light, but rather was relying on … the type and height of the fixtures to address the light impact on its neighbor.” Furthermore, the trial court noted that the ZBA did not address “the specifics of the buffer, such as the height, width, and type of the trees, as would be typical”, and the aerial photograph used by the Board contained no such detail. Accordingly, because the court concluded that the trial court’s finding that the college did not make any representation regarding the vegetative area’s function as a buffer was supported by the record, it did not address the trial court’s further finding that the board did not rely up such a representation.

Alger v Town of Goffstown, 2016 WL 3748661 (NH 5/13/2016)

Plaintiff Shane Harrington filed his initial complaint in this matter on May 15, 2015 raising numerous allegations against multiple defendants claiming Defendants were unlawfully impeding his ability to open an adult entertainment venue in Hall County, Nebraska, and Harrington had incurred damages as a result of this conduct. The proposed amended complaint alleges the Hall County zoning amendments passed in 2015 are vague, overbroad, and violated Plaintiffs’ rights of association, assembly, and free speech.

The court’s prior opinion held that Harrington had no constitutional standing to challenge the zoning amendments at issue because he failed to allege an injury-in-fact that is concrete in nature and particularized to him; specifically, Harrington had not alleged he would be able to purchase or lease land suitable for his intended club in Hall County. Harrington attempted to remedy this defect by alleging: he would have the “opportunity” to purchase land in Hall County and establish his intended business but for the 2015 zoning ordinances; and the ordinances at issue were vague and overbroad. However, Harrington was unable to show that he owned property, or that there was a “substantial probability” he would acquire property, and therefore did not suffer an injury-in-fact.

As to the Equal Protection claims, Plaintiffs argued Hall County did not subject a strip club previously located in the City of Grand Island – the Edge – to the zoning restriction now placed upon any Adult Establishment under the county’s 2015 zoning amendments. The court found that the Plaintiffs and the Edge could not be “similarly situated” for the purposes of the Equal Protection Clause since the Edge had not been in business since 2013 and it apparently operated in the City of Grand Island – beyond the reach of the Hall County zoning ordinances.

Lastly, Plaintiffs asserted the County violated the Nebraska Open Meeting Act by failing to provide Harrington with “reasonable notice of a public meeting where a petition against Shane Harrington was submitted for the purposes of stopping him from opening a legal business in Hall County.” Plaintiffs also argued notice of the meeting was insufficient; however, the County published notice of its May 5, 2015 meeting on April 29, 2015 in the Grand Island Independent newspaper. Plaintiffs also argued the description of the proposed May 5, 2015 meeting agenda was insufficient because it omitted his name. Here, the proposed agenda item stated: “Accept Petition from citizens concerned with potential adult entertainment establishment ….” which was sufficient to notify the public of the issues raised. Accordingly, there was no violation of the Nebraska Open Meeting Act.

Harrington v Hall County, 2016 WL 3950745 (D. NE 7/1/2016)

In February 2014, after conducting two public meetings, the Council of the City of Roswell (the “City Council”) approved a new zoning ordinance called the Unified Development Code (“UDC”) and a new zoning map. The UDC substantially replaced the City’s existing zoning ordinance and rezoned the plaintiffs’ properties. Plaintiffs Eric Schumacher and Mike Nyden, residents and residential property owners in the City of Roswell, brought this action for declaratory and injunctive relief in the Superior Court of Fulton County to challenge the City’s approval of a new zoning ordinance and map that rezoned their respective properties. After the Superior Court granted the City’s motion for judgment on the pleadings and denied the plaintiffs’ request for an interlocutory injunction as moot, the plaintiffs filed this direct appeal.

The applicable statute, OCGA § 5–6–35 (a) (1), provides that “appeals from decisions of the superior courts reviewing decisions of … state and local administrative agencies” must be brought by application for discretionary appeal. The Georgia Supreme Court has clarified that OCGA § 5–6–35 (a) (1) applies not only to cases where a party appeals directly to the superior court from the local government’s zoning decision, but also in cases where a party collaterally attacks the local government’s zoning decision by filing an action in superior court for mandamus, declaratory judgment, or injunctive relief. Here, the plaintiffs’ amended complaint sought declaratory and injunctive relief challenged the City Council’s zoning decision to approve the UDC and new zoning map on constitutional due process and other grounds, and to have the UDC and map declared null and void and prevent its enforcement. Furthermore, none of the plaintiffs’ requests for relief were independent of the City Council’s decision to approve the UDC and map, and none of the requests for relief could be granted or denied by the superior court without affirming or reversing the City Council’s decision.

The plaintiffs next argued that they were not required to file a discretionary application because the City Council’s decision to approve the UDC and map was a “legislative” rather than an “administrative” zoning decision. The court found that a county commission’s vote on a rezoning proposal as a local administrative agency decision for purposes of determining the method of appeal, despite the fact that in other contexts, the court had held that “commissioners in voting on either a zoning or rezoning proposal are functioning in a legislative capacity.” Thus, a zoning decision that could be characterized as “legislative” in other contexts still could fall within the ambit of OCGA § 5–6–35 (a) (1).

Lastly, the court noted that there is an exception to the discretionary application requirement under OCGA § 5–6–35 (a) (1) in cases where the plaintiff who challenged the zoning decision in superior court was not a party, and could not have been a party, in the local government’s zoning proceeding. Here, while there were no specific “parties” to the two public meetings conducted by the City Council in which the UDC and map were discussed, the certified minutes of those meetings reflected that members of the public were allowed to participate and make comments before the final vote was taken. The court therefore determined that this was not a case where only certain individuals were permitted to participate in the administrative zoning proceedings, and the exception to the discretionary application requirement did not apply. Because the plaintiffs failed to comply with the discretionary appeal procedure, the court granted the City’s motion to dismiss the appeal for lack of jurisdiction.

Schumacher v City of Roswell, 2016 WL 3086089 (GA App 6/1/2016)

Plaintiff brought suit against Defendant Metamora Township alleging a violation of First and Fourteenth Amendment Free Speech rights, prior restraint, unlawful taking, violation of equal protection, and an unconstitutional tax surrounding the denial of several variances for Plaintiff’s non-conforming sign. The Court found that Defendant prevailed on all claims outside of the prior restraint claim and found that Section 1801(c) of the Township Ordinance was unconstitutional. Defendant filed a Motion for Reconsideration of the Order and requested the Court to enter an Order granting summary judgment for Defendant on the issue of prior restraint. Plaintiff also filed a Motion for Reconsideration requesting that the Court award Plaintiff nominal damages and strike the entire Township’s Ordinance as a result of its finding regarding prior restraint.

In its Motion for Reconsideration, Defendant claimed that the Court committed a palpable defect when it concluded that Section 1801(C) was not objective or specific. Defendant argued that the terms the Court found to be subjective, such as “special conditions,” were further clarified, qualified, and/or explained by additional language in the ordinance. The Court agreed, finding that the definition of these terms contained in the Ordinance provided objective and specific guidance for the decision makers that would allow for an appropriate amount of discretion. Moreover, since the Court found that the specific sign ordinance sections of the Zoning Ordinance were a part of the zoning ordinance itself rather than a separate and distinct policy, the Court held that these definitions could be applied to the Section 1801(C) regarding the granting of variances.

Accordingly, the Court concluded that Section 1801(C) was reasonably objective and specific and was not a prior restraint on speech.

Rzadkowolski v Metamora Township, 2016 WL 3230535 (ED MI 6/13/2016)

 

Editor’s Note: This summary was posted by Brian J. Connolly and authored by Otten Johnson summer law clerk Alex Gano, and it appears on the Rocky Mountain Sign Law Blog here:  http://www.rockymountainsignlaw.com/

The Ninth Circuit Court of Appeals in Lone Star Security v. City of Los Angeles revisited an earlier opinion regarding the content neutrality of ordinances in five Southern California cities that banned mobile billboard advertising. In upholding the municipal bans a second time, the court held that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert did not create heightened judicial scrutiny for restrictions on the “manner” of advertising.

Lone Star sued Los Angeles and three other municipalities in 2013, alleging that their bans on “mobile billboard advertising” violated the free speech protections of the First Amendment. Mobile billboards are trucks that have large sign features behind the cab, and are driven around communities for the sole purpose of advertising. The ordinances at issue define mobile billboards as structures “extend[ing] beyond the overall length, width, or height of the vehicle.” However, they do not ban the painted logos or decals commonly found on commercial vehicles.

In the first round of litigation, the federal district court rejected Lone Star’s claim. It determined, and the Ninth Circuit affirmed, that: the bans were content-neutral; the cities’ interests in traffic safety, parking control, and aesthetics were significant; the ordinances were narrowly tailored to achieved these interests; and the laws left open ample alternative channels of communication.

Then last year, the U.S. Supreme Court overruled the Ninth Circuit in a different sign code case, Reed v. Town of Gilbert. Reed emphasized that “facially content based” laws must be analyzed under strict scrutiny. Previous case law in this area focused on viewpoint discrimination, but the Reed opinion stressed that “more subtle” laws that regulate speech by “subject matter,” “function,” “purpose,” or “communicative intent” must likewise be subjected to strict scrutiny. Municipal governments, businesses, and the judiciary are still sorting out exactly what Reed allows and what it prohibits in local sign ordinances.

Lone Star believed that the ordinances, which single-out “advertising,” were facially content-based and that Reed required the court to overrule its 2013 decision. Neither the district court nor the Ninth Circuit were persuaded that Reed changed their previous analysis. The bans still do not “differentiate between categories of speech”; rather, the court analyzed the ordinances as regulations on the size and mobility of vehicles. “Even a regulated vehicle bearing a blank sign could conceivably violate the ordinances,” according to the court. The Ninth Circuit’s opinion relied in part on a footnote from Justice Alito’s concurrence in Reed that rules regulating the “size of signs” or “the locations in which signs may be placed” should not be reviewed under strict scrutiny.

The rest of the court’s opinion focused on the second, third, and fourth steps of the familiar time-place-manner analysis. The Ninth Circuit found the stated governmental interests in traffic control, public safety, and aesthetics are “sufficiently weighty” to justify the ordinances, “the means chosen” are not “substantially broader than necessary” to achieve the interests, and the ordinances left open “ample alternative channels for communication.”

Importantly, Lone Star was a facial challenge to the ordinances. The parties stipulated to all facts, and the court only inquired as to whether the ordinances were “unconstitutional in every conceivable application.” Also, at first blush, this case would appear to fall within the rubric of the commercial speech doctrine, but Lone Star objected to these ordinances in part because it occasionally uses its mobile billboards to convey political messages. In a footnote, the Ninth Circuit noted that “advertising” is broader than commercial speech.

Lone Star Security & Video, Inc. v. City of Los Angles, No. 14-55014 (9th Cir. July 7, 2016).

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