This post authored by Andrew L.W. Peters originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.

The Federal District Court for the District of North Dakota denied a request for a preliminary injunction that would have forced the City of Fargo to allow a “premier adult toy retailer” to open a downtown location.

The case arose out of a zoning dispute between plaintiff “Romantix” and Fargo’s planning department.  Romantix considered itself just another retailer eligible to locate downtown.  City officials disagreed, saying that Romantix’s business of selling sexual devices instead made it an “adult bookstore,” which the City prohibits downtown, and that the City would not issue a change-of-use permit for a prohibited use.

Romantix sought a preliminary injunction to prevent Fargo from applying the definition of “adult bookstore” and prohibit the City from requiring a change-of-use permit.  When it appeared likely the city would amend its code to clarify that Romantix’s sexual device sales were prohibited, Romantix sought to expedite proceedings to prevent its claims from becoming moot.

Romantix asserted several constitutional claims, among them that the definition of an “adult bookstore” was a content-based regulation of speech, that that term was unconstitutionally vague, that the city deprived Romantix of procedural due process, and that its zoning regulation amounted to a prior restraint or “zone out.”

The court disagreed in all respects.  On the First Amendment component, the court noted controlling Eighth Circuit precedent holding that sexual device sales were not expressive activity implicating the First Amendment.  Romantix had specifically stated that it didn’t intend to sell adult reading or video material, and the court could not discern any message the company intended to express that would trigger First Amendment protections.

On the void-for-vagueness claim, the Court concluded that a simple disagreement about interpretation did not make an ordinance void for vagueness, and that “adult bookstore” gave sufficient notice that a business like Romantix’s was prohibited.

On the procedural due process and prior restraint claims, the court also considered Romantix unlikely to succeed. The city had met with Romantix multiple times, and ultimately made a decision with which Romantix disagreed, but its decision was not irrational.  On the “zone out” argument, the Court considered the city’s change-of-use permitting scheme one of general applicability, which gave officials little discretion to exclude disfavored businesses. Rather, it specified the process for permitting a different use—which had the effect, in this instance, of excluding Romantix from downtown Fargo.

Romantix-Fargo, Inc. v. City of Fargo, Case No. 3:22-cv-183. (D. N.D. December 22, 2022)

This post authored by Andrew L.W. Peters originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission

The first federal circuit court opinions applying Reagan National Advertising of Austin, Inc. v. City of Austin are flowing in, and local governments can perhaps breathe a sigh of relief: normalcy has returned. Just last week, the Seventh Circuit upheld Madison, Wisconsin’s regulations on “advertising signs,” the definition of which used the same on/off-premises distinction at issue in City of Austin.

The story there was typical of the genre.  Madison has regulated billboards since at least the 1970s.  In the late 1980s, it adopted more comprehensive regulation, amending the sign ordinance to completely ban the construction of new billboards.  Then, in the new millennium, it amended the ordinance again, to ban digital image displays.  And in 2017, the city amended the definition of “advertising sign” to limit it to commercial speech, resulting in the following definition:

A sign containing a commercial message directing attention to a business, commodity, service, or entertainment, not related to the premises at which the sign is located, or directing attention to a business, commodity, service or entertainment conducted, sold[,] or offered elsewhere than on the premises where the sign is located.

Adams Outdoor Advertising, a billboard company, brought a broad First Amendment challenge to the city’s treatment of billboards.  Much of that challenge, though, was precluded by an earlier stipulation with Madison, which had prohibited Adams Outdoor from bringing precisely this sort of challenge again.

Still, preclusion didn’t extend to the city’s later ban on digital displays, so the Seventh Circuit addressed that component on the merits.  Applying City of Austin, the panel declared the on/off-premises distinction subject to intermediate scrutiny, observed that prohibiting digital signs advanced the city’s significant interests in aesthetics and traffic safety, and had no trouble upholding the ban.

We anticipate more of the same in future opinions confirming the constitutionality of on/off-premises distinctions to regulate billboards and other advertising signs.  The questions that remain are those from Justice Alito’s concurrence in City of Austin: What about noncommercial speech?  Is a sign encouraging drivers to attend a political rally somewhere else an offsite sign?  What about a sign directing residents to a church event?  We expect a court to confront those questions in due time.

Adams Outdoor Advert. Ltd. P’ship v. City of Madison, Wisconsin, 2023 WL 33962 (7th Cir. Jan. 4, 2023).

This post was authored by Sebastian Perez, J.D.

Proposed intervenors sought to challenge AT&T’s application for a wireless facility at St. Peter’s chapel (the “Chapel”) as violative of the Telecommunications Act of 1996 (“TCA”).  The judge had previously ordered Plaintiff’s and Defendant’s proposed settlement agreement (“Settlement Agreement”), but the Court granted the Proposed Intervenors’ motion (the “Motion”) finding all of the factors in FRCP 24(a)(2) governing intervention were met: (1) timeliness of the motion; (2) the movant’s interest related to the property or transaction that constituted the subject of the action; (3) absent intervention, the movant’s ability to protect its interest would be impaired or impeded, and (4) the parties to the action did not adequately represent the movant’s interest.

First, the Motion was timely because the Proposed Intervenors were not originally joined in the underlying proceeding and only learned of the Settlement Agreement through word of mouth but took immediate action by retaining counsel to file an Article 78 petition and subsequently filed their initial letter motion to intervene. Second, the Court agreed that the Proposed Intervenors’ attempt to protect against potential economic harm to their properties of a potential decline in property value ranging from 15-30 percent was not only “more than a remote or contingent interest” and satisfied the legal interest requirement. Third, the Court concluded that denial of the Motion would have impeded the Proposed Intervenors’ legal rights because the Settlement Agreement would have overridden those rights by providing that a 50–70-foot cell tower be built at the Chapel in any scenario in violation of their economic property interest. Lastly, the Court determined there was not an adequate representation of the Proposed Intervenors’’ interests by the existing parties to the proceeding because the Plaintiff sought to build a cell tower at the Chapel and Defendants sought to act in the public interest and represent the interests of the Town as whole rather than protecting the Proposed Intervenors’ specific property rights. 

New Cingular Wireless PCS, LLC v Planning Board of the Town of East Hampton, 2022 WL 18859063 (EDNY 12/1/2022)   

This post was authored by Matthew Loescher, Esq.

In 2003, the City of Augusta, Georgia enacted an adult-entertainment ordinance with the stated purpose of combating negative secondary effects associated with adult-oriented businesses. The owners and operators of two longstanding nude-dancing clubs in downtown Augusta, Discotheque Lounge and Joker’s Lounge, sued the City and others claiming that the ordinance and related regulations violated the First Amendment. The district court granted summary judgment to the City on some claims and held that the plaintiffs lacked standing on other claims, and this appeal followed.

On appeal, Plaintiffs first argued that the 2003 Ordinance’s prohibition on transferring adult-entertainment permits was subject to, and failed, strict scrutiny. Plaintiffs contended that the predominant purpose of the ordinance was to eliminate adult live entertainment in Augusta. Plaintiffs further argued that because the ordinance expressly subjected some businesses to restrictions based on the content of the expression they offered, it must be evaluated as a content-based regulation under the Supreme Court’s decision in Reed. The court found that while Plaintiffs asserted that other adult clubs had closed since the ordinance passed, but they made no effort to connect those closures to the ordinance. Additionally, while Plaintiffs cited the City’s prior ban on alcohol in adult businesses—which has since been repealed—but that was insufficient on its own, since the court previously upheld “nude-dancing-while-selling-alcohol bans” under the secondary-effects doctrine. As Plaintiffs failed to cast direct doubt on the secondary-effects rationale, the district court properly reviewed the 2003 Ordinance under intermediate scrutiny.

The court next found that Plaintiffs failed to show that the prohibition on transferring adult-entertainment permits, § 6-1-15, was not narrowly tailored or otherwise fails to “allow for reasonable alternative avenues of expression.” Furthermore, the non-transferability provision furthered the City’s permitting scheme for adult-entertainment businesses, and its goal of reducing secondary effects, by ensuring that the current owners or operators of such businesses were evaluated by and received their permits directly from the City. It also protected the interests of existing businesses while allowing the City to gradually transition to the new-location requirements. Additionally, nothing in the non-transferability provision prevented Plaintiffs, following the death of a prior owner, from applying for their own permit to operate the business. Since § 6-1-15 survived constitutional scrutiny, the court affirmed the dismissal of Plaintiffs’ claims.

Discotheque, Inc. v August-Richmond County, 2022 WL 5877263 (11^th Cir CA 10/5/2022)

This post was authored by Matthew Loescher, Esq.

Charlestown Township, a municipality in Chester County, enacted a zoning ordinance that permits outdoor, off-premises advertising signs in a particular district. A statewide regulation concerning roadside billboards promulgated by the Pennsylvania Department of Transportation (“PennDOT”) had the practical effect of barring that use. Property owner Charlestown Outdoor, LLC appealed the decision of township zoning board, which denied the property owner’s challenge to validity of township’s zoning ordinance that permitted construction of billboards in the zoning district. The Court of Common Pleas, Chester County, affirmed the zoning board’s decision finding that the ordinance was not de facto exclusionary. The property owner appealed, and the Commonwealth Court affirmed.

At the outset, the court noted that as this was a de facto challenge, in order to overcome the presumption of constitutionality, Outdoor would have to demonstrate that, as applied, the Zoning Ordinance “appears to permit a use, but under such conditions that the use cannot in fact be accomplished.” Outdoor contended that the Zoning Ordinance and Section 445.4(b)(2)(i) of PennDOT’s regulations together precluded the construction of billboards in the Township, which resulted in a de facto exclusion. The court found that Outdoor did not establish that billboards were excluded because the Township imposed a condition that, as applied, prohibited billboards: the Township zoned for billboards in the B-1 zoning district, and PennDOT’s regulation effectively precluded billboards in that district.

The court found that the permitted use was not made impossible by application of the Zoning Ordinance, there was nothing restrictive in the Zoning Ordinance to sever, and Outdoor would not be able to erect a billboard on the property due to PennDOT’s regulatory 500-foot interchange setback requirement. Because PennDOT’s regulation, rather than the Zoning Ordinance, was the source of the exclusion, the ordinance was not de facto exclusionary.

In Re Appeal of the April 24, 2018 Decision of the Charlestown Township Zoning Hearing Board Denying the Challenge of Charlestown Outdoor, LLC, 280 A. 3d 948 (PA 8/16/2022)

This post was authored by Matthew Loescher, Esq.

In 2018, the City of Puyallup adopted Puyallup Municipal Ordinance (PMO) 3179, which established a new chapter of the Puyallup Municipal Code—chapter 20.72 (PMC 20.72). This new code chapter restricted the siting of day use centers and overnight shelters serving people experiencing homelessness within the City. The ordinance permitted such centers and shelters only in industrial zones in a small corner of the City that was distant from any services and had almost no access to transit. Siting anywhere else in the City required approval from a majority of Puyallup’s city council. Homeward Bound in Puyallup, which already operated one drop-in center, petitioned for review of the ordinance. Homeward Bound argued that PMC 20.72 was inconsistent with multiple policies in Puyallup’s comprehensive growth management plan and violated several provisions of the Growth Management Act (GMA), chapter 36.70A RCW. In this case, the operator of the drop-in center filed petitions for review of two orders of growth management hearings board, which found that city’s regulations restricting the siting of day use centers and overnight shelters serving people experiencing homelessness complied with city’s comprehensive growth management plan, and the GMA. The Superior Court, Pierce County, consolidated the two petitions and affirmed both the initial order and compliance order.

On appeal, Homeward Bound claimed the Board erroneously concluded that centers and shelters serving people experiencing homelessness were not essential public facilities. It further claimed the plain language of RCW 36.70A.200(1)(a) indicated that homeless centers and shelters could be considered essential public facilities because they were hard to site. Although the statutory list of essential public facilities was nonexclusive, the court found that in those circumstances, the Board did not have authority to mandate that day use centers and overnight shelters be classified as essential public facilities. Even assuming day use centers and overnight shelters were classified as essential public facilities, however, Homeward Bound failed to show that PMC 20.72 precluded their siting, as PMC 20.72 allowed day use centers and overnight shelters to be sited on almost 200 parcels on over 400 acres through conditional use permits.

The court next held that the Board did not err as a matter of law by giving weight to Puyallup’s intent to regulate a narrow set of facilities versus broadly prohibit any institution involved in assisting people experiencing homelessness. The record reflected that the Board’s conclusion was supported by evidence that would convince a reasonable person, and was not willful or unreasoning. Thus, the Board’s ruling was supported by substantial evidence and was not arbitrary and capricious. It was also clear from the record that the city council felt pressure from many angles in their decision-making and council members were seeking to craft a solution that would satisfy multiple competing community needs and concerns without running afoul of the GMA. The court therefore held that the Board did not err as a matter of law by finding in the compliance order that PMC 20.72 ultimately complied with the comprehensive plan policies regarding transit access.

Homeward Bound next contended that the Board’s compliance order improperly relied on the development agreement option in PMC 20.72 to which the Board had previously declined to afford weight. The court noted that the Board did not mention development agreements in the compliance order until the second-to-last paragraph of its analysis: stating that the development agreement option “potentially serves to increase the availability of sites.” While the option “in the absence of any centrally located areas in which shelter facilities were permitted outright” was insufficient, the court found that “the existence of this option … may offer an opportunity for additional sites.” The record reflected that the Board found PMC 20.72 in compliance based on the expanded availability of siting and only raised development agreements as a further positive consideration. As such, it was not an error of law for the Board to note that development agreements allowed for additional siting opportunities beyond the conditional use permit siting restrictions. The Board’s orders were therefore affirmed.

Homeward Bound v Central Puget Sound Growth Management Hearings Board, 2022 WL 4477915 (WA App. 9/27/2022)

This post was authored by Matthew Loescher, Esq.

In this case, the Town of Brigham, the Iowa County Board of Supervisors, and the Iowa County Planning and Zoning Committee appealed a circuit court judgment declaring that BARD Materials was entitled to a requested rezoning of its property as a matter of law. The Town and County contended that BARD’s complaint failed to state a claim because, under Voters with Facts, certiorari was the exclusive remedy for review of a rezoning decision. Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶25, 382 Wis. 2d 1, 913 N.W.2d 131, The Voters with Facts court noted “the longstanding policy that declaratory relief is disfavored if there is a speedy, effective and adequate alternative remedy.” That court further stated that “it is well established in this state that where there are no statutory provisions for judicial review, the action of a board or commission may be reviewed by way of certiorari.” Here, BARD did not dispute that its challenge to the rezoning decision arises under WIS. STAT. § 59.69(14) and that the statute did not provide the method of judicial review. Accordingly, the court held that, following Voters with Facts, the exclusive method of review in this case was by certiorari.

Here, the court found that BARD’s claims – that the County Board erred by denying its rezoning application and that it was entitled to the rezoning as a matter of law – fit within the scope of certiorari review, and BARD’s complaint could be construed as requesting certiorari review of the County Board’s decision. Nevertheless, as this matter was litigated in the circuit court as a declaratory judgment action and not as a certiorari proceeding, the municipality did not compile a record of its proceedings, and the record before the court was found insufficient to be reviewed. Accordingly, the court remanded to the circuit court for certiorari review of the County Board’s decision with respect to BARD’s rezoning application.

Dyersville Ready Mix, Inc. v Iowa County Board of Supervisors, 2022 WL 11555313 (WI App. 10/20/2022)

This post was authored by Matthew Loescher, Esq. 

This appeal centered around the determination of just compensation for the partial taking of property in Greenpoint, Brooklyn, owned by the claimant, 20 Rewe Street, Ltd. Prior to the taking, the parcel was a 39,900 square foot double-cornered property with a maximum floor area ratio (“FAR”) of 2.0, located in a M3–1 (Manufacturing/Industrial) zone. The property was unimproved, except for a concrete wall and a chain-link fence, and was used for storage and the parking of construction equipment and vehicles. In January 2012, the New York State Department of Transportation appropriated 27,041 square feet of the northern side of the property as part of the Kosciuszko Bridge Project, leaving a remainder property of approximately 206 feet by 60 feet (12,859 square feet). The claimant commenced this claim seeking damages from the State as just compensation for the taking. Following a trial, the Court of Claims awarded the claimant the sum of $3,310,500.

On appeal, the court noted that the determination of the Court of Claims to credit the appraisal of the State’s expert, with one adjustment, over that of the claimant’s expert was supported by the record and was adequately explained. Contrary to the claimant’s contention, the Court of Claims did not base its determination of the amount of consequential damages to the remainder property on a finding as to the highest and best use of the remainder property. Instead, the court applied a percentage reduction to the value of the remainder parcel per square foot of FAR, utilizing the higher 20% figure proffered by the State as an admission against the State’s interest. The claimant did not challenge the percentage diminution method used by the court. As the claimant proffered a lower diminution figure, it failed to meet its burden of establishing an entitlement to higher severance damages. Accordingly, the determination of the Court of Claims to award the claimant the principal sum of $3,310,500 as just compensation for the taking was affirmed.

20 Rewe Street, LTD v State of New York, 174 N.Y.S.3d 117 (2 Dept. 9/14/2022)

This post was authored by Sebastian Perez, JD

The Native American tribe of Cayuga Nation (petitioners) found reprieve when New York’s Supreme Court, Appellate Division reversed a judgement that dismissed their petition for a declaratory judgement on the ground they lacked standing. Petitioners had commenced a hybrid Article 78 proceeding and declaratory judgement action seeking a declaratory judgement action seeking a declaration that respondent-defendant Carlin Seneca-John’s operation of their residence as a commercial enterprise was prohibited under Town of Seneca Falls Zoning Local Law (zoning code). Petitioners alleged that respondent-defendant Town of Seneca Falls (Town) failed to enforce the zoning code and allowed Seneca-John to continue operation of the business as a nonconforming use, but the court instead granted Town’s motion to dismiss the petition-complaint’s second cause of action against it for declaratory judgement on the ground that they lacked standing. The court reminded that standing was an aspect of justiciability which must be addressed at the outset of any litigation (Matter of Barbeau, [4^th Dept, 2020]) although a party’s lack of standing did not constitute a jurisdictional defect (Charles, [2^nd Dept, 2016]) and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a pre-answer motion to dismiss which the  Town failed to do in their motion regarding the second cause of action.

Therefore, the lower court erred in sua sponte reaching the issue of standing with respect to that cause of action.

Cayuga Nation v Town of Seneca Falls, 2023 WL 1498762 (NYAD 4 Dept. 2/3/2023)    

This post was authored by Matthew Loescher, Esq.

In 2020, AT&T initiated this action alleging that the Board of Commissioners and Zoning Appeals Board unlawfully denied its request to build a wireless communications facility. AT&T claimed that the County’s decision violated the Federal Telecommunications Act (Counts I and II), required judicial review (Count III), and that the Ordinance, as interpreted by the County, violated the Illinois Counties Code (Count IV). AT&T moved for summary judgment as to Counts I, III, and IV and asked the court to review, vacate, and reverse the Defendants’ decision to deny the application.

AT&T first contended that Defendants failed to comply with the FTA’s requirement to provide a written record explaining the rationale and substantial evidence supporting the denial. Conversely, Defendants argued that the Board meeting minutes satisfied the low standard for a written record. The court found that the Zoning Appeals Board decision provided AT&T a clear description of the basis for the denial. Specifically, the record indicated that the County found the proposed property unsuitable for a cell tower because a local ordinance prohibited storage facilities from being operated on the same property. The Board of Commissioners and Zoning Appeals Board based this decision on the Zoning Administrator’s decision along with AT&T’s arguments in opposition. The Board explained its rationale with sufficient specificity regarding how and why it held the way it did: a violation of a local ordinance. Accordingly, AT&T’s motion for summary judgment was denied.

AT&T next claimed that Defendants denied its application under an unreasonable interpretation of the Ordinance. According to AT&T, the Ordinance set forth that self-storage businesses were only “maintained in connection with” telecommunications facilities when they were related or operated by the same owner on the same plot of land. The Court declined to perform an in-depth analysis regarding the Board’s interpretation of the Ordinance, finding instead that under a reasonableness standard, Defendants provided sufficient support for their interpretation, and their construction of the Ordinance did not run afoul of statutory construction. Accordingly, the court denied AT&T’s motion for summary judgment as to Count III.

Lastly, AT&T argued that summary judgment was proper because Defendants’ denial of the application overreached the power conferred to the County by Illinois state law. Defendants’ interpretation of the Ordinance, according to AT&T, conflicted with multiple provisions of the Telecom Facilities Statute – which made the Ordinance preempted. The court found that Monroe County’s Ordinance did not violate the section. The Ordinance set forth that, “No public office, or principal repair or storage facilities shall be maintained in connection with the site.” The court found this was not a prohibition against multiple structures, buildings, or uses on a zoning lot, and the zoning lot that AT&T sought to build its tower on allowed multiple structures, buildings, and uses. The court further found that to read Section (g) as AT&T did would completely eliminate any power or discretion a county had in approving or denying location of cell towers or facilities that met these size and general structural requirements. Moreover, while a facility that meets the requirements in Section (g) may be permitted, the provision did not suggest that a facility could be placed in any location where the facility could meet these specifications.

New Cingular Wireless PCS, LLC v Monroe County Board of Commissioners, 2022 WL 4604`64 (SD IL 9/30/2022)