This post originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.

In a case challenging a Portland, Oregon ordinance, a federal judge granted a preliminary injunction to a group of building owners who would have been compelled to post a potentially misleading message.  The judge, suspecting the city was not forthcoming about its real motive behind the ordinance, found the requirements failed strict scrutiny and burdened First Amendment rights.

Portland has long encouraged owners of unreinforced masonry buildings (“URMs”) to retrofit and reinforce their properties to be stronger in the event of a major earthquake, but has remained unable to garner enough political and public support to mandate doing so.  Instead, it implemented an ordinance requiring owners of designated buildings to display exterior placards disclosing the risks of major earthquakes in URMs. The ordinance required the placard state: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.”  The ordinance also required owners to (1) include a tenant notification provision in lease applications disclaiming risk and (2) document compliance with the ordinance.

In a reportedly flawed process, the city compiled a database of URMs that would be affected.  Portland acknowledged the database may be inaccurate and unable to predict building performance in an earthquake but still required “conclusive evidence” – a high bar – showing a building is no longer a URM in order for it to be removed from the list.  Thus, some buildings, including those owned by two of the plaintiffs, remained on the list despite having been retrofitted with safety improvements.

Quickly dismissing any argument that this was First Amendment-exempt government speech, the court then determined that the placard did not compel commercial speech. As such, the court looked to see if the regulation passed strict scrutiny.

The court continuously noted the disconnect between the ordinance and the initially-asserted government interests: 1) to build awareness of seismic risk and what to do in an earthquake – specifically to duck and cover and not try to get out, and 2) to build market demand for seismic improvements to these buildings.  While promoting safety is a compelling interest, nothing in the ordinance provided for posting of instructions on what to do in an event. If the goal was just to raise awareness of risk, plenty of less restrictive alternatives, such as a public relations campaign, would have sufficed.  Additionally, no evidence showed that posting placards was effective in improving risk awareness or public safety. Finally, because some retrofitted and reinforced buildings remained on this list, the ordinance was overinclusive; because some buildings that are riskier in earthquakes, like those with soft-story construction and non-ductile construction, were not on the list, it was underinclusive.

Thus, the court openly suspected the real interest lied in mandating retrofitting and reinforcement, and reprimanded the city for its attempt to achieve this goal by infringing on First Amendment rights.

Masonry Bldg. Owners of Oregon v. Wheeler, No. 3:18-cv-02194-AC, 2019 WL 2304252 (D. Or. May 30, 2019).

This post originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission.

A federal judge in North Dakota granted a temporary restraining order to enjoin the City of Mandan from enforcing a content-based ordinance regulating murals and signs.

The ordinance requires building owners to obtain a permit before displaying a sign or figurative wall mural.  A commission reviewing applications makes decisions based on guidelines and regulations, including those prohibiting murals that are commercial, have words as a dominant feature of the art, have political messages, or are on the front of the building.

The Lonesome Dove, a saloon that’s been a fixture on a main road for twenty-eight years, had until recently only decorated its exterior with beer ads.  Most recently, it had a Coors Light logo painted on the front wall.  Although the saloon never sought a permit for the logo, it was never cited for violation.  Seeking to reinvigorate its exterior, the saloon – not knowing it needed a permit – painted a 208 square-foot Western-themed “Lonesome Dove” mural on the front of the building in 2018. 

Soon after painting was complete, the city issued a citation for an “unpermitted mural” and gave the saloon options to either remove it, apply for a permit, or face a fine of up to $1,000.  The Lonesome Dove submitted a permit application but was denied at the initial and two subsequent hearings.  First, the commission determined that the mural is a “sign” because of a commercial message and needed to submit a sign application.  Second, when the saloon submitted a sign application, the city cited code prohibiting signs from being painted directly on the building in its denial.  Finally, the saloon’s appeal of the sign denial was rejected, with the city again citing code provisions prohibiting painting a sign or wall mural on a building without approval.

The court easily found that the plaintiff would likely prevail on the merits of its First Amendment claim because the City impermissibly regulated on a content-based distinction: whether the sign or mural displayed commercial speech.  Granting the motion, the court also noted that the loss of First Amendment freedoms constituted irreparable injury, the public interest lies in protecting First Amendment freedoms, the balance of equities favors the freedom of expression, and the restraining order will not impose any burdens on the city.  Notably, the court held a hearing on a preliminary injunction on June 5, but has yet to issue a ruling.

The court’s initial reaction to this case is interesting, as appellate courts have generally allowed restrictions on commercial speech that do not similarly apply to noncommercial speech.  In the event this decision is appealed, the Eighth Circuit Court of Appeals may be asked to clarify whether a local government may still regulate commercial speech to a greater extent than noncommercial speech.

Kersten v. City of Mandan, Case No. 1:19-CV-085, 2019 WL 2212381 (D.N.D. May 22, 2019).

This post originally appeared on the Rocky Mountain Sign Law Blog and it is reposted with permission.

The Third Circuit Court of Appeals held that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment.  The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.

Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971.  That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs.  The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.

Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania.  After processing the permit application for over a year, the state’s transportation department  eventually denied the permit on the grounds that the sign violated the interchange restriction.  Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.

The district court, which had previously dismissed Adams’s vagueness challenge, granted summary judgment for the state on the interchange restriction, but granted summary judgment for Adams on its permitting challenge.

On appeal, the Third Circuit affirmed the dismissal of the vagueness challenge.  Analyzing the interchange restriction, the appeals court concluded that the exemption for official signs was not content-based, as it is simply an exemption for government speech.  The court found, however, that the state had not met its burden to demonstrate that the on-premises sign exemption furthered an important state interest that was at least as important as the state interest in the overall prohibition.  The court remanded that issue back to the district court for further factfinding.

On the permitting claim, the Third Circuit agreed with the district court that the lack of a permitting timeframe created an unconstitutional prior restraint.

Two points stand out about the court’s ruling.  First, the Third Circuit appears to continue to apply a test that it established for “context-sensitive” sign regulation in the case of Rappa v. New Castle County, a case authored by the now-Supreme Court Justice Alito.  Under that test, the court reviews exemptions to general prohibitions as a balancing of the governmental interests in both the exemption and the general prohibition.  Some observers had questioned whether the context-sensitive analysis survived Reed, but it appears to have done so.  Second, the Third Circuit’s analysis does not take into account the Supreme Court’s prior statement in the case of Thomas v. Chicago Park Districtthat strict permitting timeframes are not required in cases involving content neutral regulation.  Here, the court did not find that the exemptions were content based, but it still imposed a requirement for a strict permitting timeframe.

Adams Outdoor Limited Partnership by Adams Outdoor GP, LLC v. Penn. Dept. of Transp., ___ F.3d ___, 2019 WL 3071292 (3d Cir. Jul. 15, 2019).

Posted by: Patricia Salkin | July 29, 2019

IL Appellate Court Upholds Village Stormwater Fee Ordinance

This post originally appeared on the Municipal Minute Blog of the Ancel Glink Firm and reposted with permission.

In 2014, the Village of Winnetka adopted a storm water ordinance that imposed a fee on the owners of property in the Village in order to provide a dedicated funding source for various improvements to the Village’s storm water system. That fee was calculated based on the “equivalent runoff value” (ERU) of 3400 square feet of impervious surface area on lots within the village. No fee was assessed on properties with less than 170 square feet of impervious surface area, and roads, sidewalks, and alleys were also not subject to the fee. Properties that do not discharge storm water into the Village’s system could obtain a 100% credit of the fee, and properties that detained at least half of their own runoff could obtain a 50% credit of the fee. The fee was assessed on the Village’s utility bills.
Green, a Village resident subject to the fee, filed a lawsuit against the Village to challenge the fee, claiming that it was an unlawful tax because the fee bears no relation to a property owner’s actual use of the Village’s storm water system. The parties filed motions for summary judgment, and the circuit court ruled in the Village’s favor. Green appealed.
The issue before the appellate court was Green’s argument that the Village’s storm water fee was actually a tax rather than a fee for services rendered. Green made a number of arguments, including that many property owners were being charged the fee without receiving any benefit, and that the fee was not tied to the actual use of the Village’s storm water system. The Village defended the fee, arguing that a previous appellate court ruling had upheld a similar storm water fee adopted by Rock Island that was also based on impervious surface area.
The appellate court agreed with the Village that Winnetka’s fee was similar to Rock Island’s fee that was previously upheld by the Third District Appellate Court. Both ordinances assess the fee based on impervious surface and both defined impervious surface in the same manner. Both ordinances also allow for a 100% credit for properties that do not use the municipal system, and the revenues obtained in both municipalities are dedicated to a fund used solely to finance the municipal storm water system. Finally, both ordinances exempt public roads and rights of way. Moreover, the court determined that there was a rational basis to support the storm water fee ordinance. In sum, the court upheld the Village’s ordinance.

This post was authored by Matthew Loeser, Esq.

The Mayor and the Council of the District of Columbia desired to close a large and poorly functioning facility for homeless families, known as the DC General Family Shelter, and replace it with a set of smaller shelters to be dispersed throughout the city. This led to the enactment of the Interim Eligibility and Minimum Shelter Standards Amendment Act of 2015, which required the Mayor to maintain an inventory of 280 replacement units for families in anticipation of the closing of the DC General Family Shelter. The Homeless Shelter Replacement Act of 2016 (“HSRA”) was also passed to authorize the appropriation of $125 million for the planning, design, and construction of six new shelters that would provide the required replacement units at specifically designated sites in Wards 3, 4, 5, 6, 7, and 8. The District of Columbia Department of General Services (“DGS”) then filed applications with the District of Columbia Board of Zoning Adjustment (“BZA”) requesting zoning relief for shelters proposed at all six of the sites specified in the HSRA. Several neighbors and neighborhood organizations filed petitions for review of the BZA’s orders approving zoning relief for the shelters in Wards 3 and 5. The decision in Neighbors for Responsive Gov’t affirmed the BZA’s order granting zoning relief for the Ward 3 shelter.

 

In its decision, the BZA made specific findings that DGS satisfied all of the conditions for area variances allowing increased building height from 50 to 69.8 feet, increased floor-area ratio (“FAR”) from 2.5 to 3.51, and loading via the public alley to the east without a loading berth. The BZA also found that strict application of the zoning regulations governing height, FAR, and loading would create practical difficulties for DGS in meeting the District’s programmatic goals, and that the requested variances would not substantially impair the area’s zoning plan or cause any substantial detriment to the public good.

 

On appeal the petitioners challenged the BZA’s decision to grant area variances for height and FAR. The court found, however, that all of the petitioners’ arguments relating to the BZA’s finding of an extraordinary or exceptional condition on the property were foreclosed by the decision in the Ward 3 case. In that case, the court held that the HSRA’s designation of the site for the family shelter in Ward 3 was sufficient to create an exceptional condition on the property for the purposes of granting variance relief. It further held that DGS’s request for variance relief was properly considered under the more flexible standard for a non-profit or other public service entity seeking to serve an important public need or purpose, despite the fact the relief was not sought for the Ward 3 site solely for the purpose of expanding an already existing use on the property.

 

The petitioners’ lastly argued that the court found that the BZA made the findings underlying its decision to grant area variances for height and FAR contrary to evidence presented in opposition. Specifically, several neighbors of the proposed shelter testified on behalf of CFRO and expressed worries about the shelter’s possible effects on traffic, parking, noise, and sunlight in the neighborhood. The court found that the BZA was entitled to give greater weight to the extensive expert testimony presented by DGS and supported by formal studies on transportation, traffic, parking, and shade. Additionally, substantial evidence in the record also supported the BZA’s finding that the proposed shelter would have “adequate, appropriately located, and screened off-street parking to provide for the needs of all occupants, employees, and visitors to the facility,” which were required for a special exception for an emergency shelter in an MU-4 zone. Accordingly, the order of the District of Columbia Board of Zoning Adjustment was affirmed.

 

Citizens for Responsible Options v District of Columbia Board of Zoning Adjustment,

2019 WL 2851583 (DC App. 7/3/2019)

This post was authored by Matthew Loeser, Esq.

W.J. Menkins Holdings, LLC owned property located in the Township’s Village Commercial (“VC”) Zoning District, which consisted of approximately one and one-half acres with a single-family residence and a five-bay garage/office. Applicant purchased the property from Randy L. and Debra Keen, who lived in the residence and operated a family-owned commercial electrical contracting business from it in accordance with variances the Township had granted. Applicant leased the property to the W.J. Menkins Hauling company to operate a quarry trucking business. After the Township contacted Applicant about zoning violations, Menkins applied for a zoning permit to change the property’s use from Keen Electric to a “hauling business.” The Township’s Code Enforcement Officer, John Wascavage, denied the zoning permit application. The Zoning Board then granted Applicant’s variance, subject to several conditions, which W.J. Menkins challenged in this case.

The first condition imposed by the Board was that the hours of operation of the trucking/hauling use would be limited to between 6AM to 6PM, Monday through Friday. Applicant’s noise study/abatement expert Robert G. Richardson testified that he performed a study of the heavy vehicle noise from the Property on October 26, 2016 between 4:48 a.m. and 5:44 a.m., and concluded that the noise levels produced in that process were below 60 decibels at four locations, which complied with Section 27-708.B of the Zoning Ordinance  However, Richardson also acknowledged that his study did not measure for air brakes, back-up beepers, trucks moving on gravel, or driver gear-shifting techniques/ revolutions per minute (“RPMs”), and admitted that the decibel levels would increase as the number of simultaneously operated trucks increased. Conversely, the court found that substantial record evidence supported the Board’s determination that noise from the Company’s operation of its dump trucks on the property negatively impacted the surrounding property owners. As such, the Board was authorized to impose reasonable conditions necessary to minimize or neutralize the intrusion on the neighborhood.

As to the condition that required Applicant obtain land development approval, the Board found credible an adjoining property owner’s concern that Applicant’s truck washing would take place wherever the dump trucks were parked, and the water run-off would contaminate his property. The court noted that this speculation did not amount to substantial evidence. Furthermore, the Board acknowledged that it did not have the authority to require Applicant’s compliance with land use development regulations as a variance approval condition. Because this condition was not supported by the Zoning Ordinance/MPC or the record, it was found unreasonable, and the Board therefore abused its discretion by imposing it.

W.J. Menkins Holdings, LLC v. Douglass Township, 208 A.3d 190 (PA Commwlth 5/2/2019)

This post was authored by Matthew Loeser, Esq.

GEO owned and operated the Northwest Detention Center (“NWDC”), a 120,000 square foot private detention facility on the Tacoma tide flats, pursuant to a contract with the United States Immigration and Customs Enforcement agency (“ICE”). NWDC opened in 2004. When it was constructed the NWDC was permitted outright under Tacoma’s Municipal Zoning Code. Since that time, the NWDC had been upgraded or expanded several times, most recently in 2011. In 2017 the Tacoma City Council passed an Interim Emergency Ordinance, which allegedly banned private correctional facilities in Tacoma, and permitted public correctional facilities only with a Conditional Use Permit. The Ordinance was adopted in 2018, and GEO sued one month later, arguing that the politically-motivated zoning law change was unconstitutional. The City then moved for summary judgment on the GEO’s §1983 damages claim.

GEO claimed that its damages will be incurred when, and if, it actually takes steps to improve or expand its facility, and that its damages will multiply as the project proceeds. The City contended that GEO was expressly relying on its allegations, rather than evidence, in support of its claim that the zoning change would make any expansion more expensive. The court held GEO’s damages claim, stemming from a permit it had not yet applied for, and that was not the subject of any final decision, was not recoverable.

GEO’s primary claim was that the Ordinance is unconstitutional, and its primary claim for relief was a Declaration that the City could not enforce the Ordinance against GEO and a permanent injunction. The court found that should GEO prevail on this claim, it would not have to process any future expansion under the new Ordinance, and would therefore never incur the additional costs associated with doing so. Accordingly, the City’s Motion for Summary Judgment on GEO’s §1983 damages claim was granted and that claim was dismissed with prejudice.

The GEO Group Inc. v. City of Tacoma,  2019 WL 2766722 (WD WA 7/2/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiff Schneur Cadaner is an Orthodox Jewish Rabbi who conducted various personal and public religious activities, including shabbat services, prayer, and bible studies from his home. Chabad Lubavitch, an Orthodox Jewish Hasidic movement that the Rabbi was a member of, advertised these services to the public on its website. Plaintiffs’ house was located in an R-1 Single-Family Residence District that required a special use permit for houses of worship. The City sent three letters to Rabbi Cadaner regarding the Chabad and the use of the house for religious services. The first two letters stated that Plaintiffs need a special use permit or variance from the Board of Adjustment in order to use the property as a house of worship. The third stated that Plaintiffs might need a business license for home occupation. After the first two letters were sent, the Bettendorf City Council approved a new zoning scheme that allowed houses of worship in R-1 districts as a right.

Plaintiff brought several claims, contended the zoning code was unconstitutionally limiting them from using their property as a house of worship to host religious services. Plaintiffs did not allege they sought a special use permit, variance, license, or otherwise attempted to follow up with the City in order to obtain a decision as to their use of the land, nor receive any fines or other adverse actions. As Plaintiffs failed to obtain a final decision as to the use of their land, the Court found that their RLUIPA claim was not ripe and should be dismissed. The Court further held that Williamson County’s finality rule also applied to Plaintiffs’ claims under the Iowa Constitution, and that those claims were therefore unripe as well. Accordingly, Defendants’ Motion for Judgment on the Pleadings was granted.

Chabad Lubavitch of the Quad Cities, Inc. v. City of Bettendorf, 2019 WL 2754711 (SD IA 7/2/2019)

This post was authored by Matthew Loeser, Esq,

New Image, a towing and wrecker service, leased a facility located in Morrow, Georgia in Clayton County’s Heavy Industrial (“HI”) zoning district. In 2016, the Clayton County Planning and Zoning Administrator verified that towing and wrecking was a permitted use of the property, and New Image was able to pursue its application for a business license. During the application process, New Image met with the Technical Review Committee (“TRC”), which included the County Water Authority, the Transportation and Development Department, the Planning and Zoning Department, and the Fire Department. The TRC instructed New Image to submit a site plan to facilitate its review, but after New Image failed to do so its application for a business license was suspended. New Image appealed this decision to the BZA, which unanimously voted to uphold the Administrator’s decision and found that New Image must submit a site plan to show its compliance with sections 6.2 and 6.32 of the Zoning Ordinance. New Image filed a petition for writ of certiorari to the superior court, which reversed the BZA’s decision.

On appeal, the County contended that this matter did not involve construction of the Zoning Ordinance because the BZA made a factual finding that New Image’s license application was subject to sections 6.2 and 6.32, and, with regard to the requirement for the site plan, the Administrator was exercising her administrative discretion. As such, the County claimed the superior court was confined to consider “whether the agency acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights,” rather than reviewing the decision de novo. The court found that rather than simply making a factual finding, the BZA analyzed the context of the Zoning Ordinance, specifically with respect to the meaning of “altered” in section 6.2. Accordingly, the superior court was required to construe the ordinance in determining whether the agency overreached its authority.

In reviewing the Ordinance, the court found that the term “altered” in section 6.2 included changes in land use unaccompanied by physical alterations to the site, as well as “land uses” and “land use changes” within the scope of Article 6. Here, the record reflected that New Image’s proposed use varied from that of the former lessee. Specifically, as testified to by the Planning and Zoning Division consultant at the BZA hearing, there was a significant difference in intensity of use between the former fencing company’s “laying wire” and New Image’s proposed use involving “laying down any number of vehicles.” Therefore, Article 6 was found to apply to New Image’s business application, regardless of whether the features of the property were physically altered. The court thus held that because New Image proposed a change in the use of the property, it was required to comply with sections 6.2 and 6.32.

Clayton County v. New Image MA-012 Towing and Recovery, Inc., 2019 WL 2754562 (GA App. 7/2/2019)

This post was authored by Matthew Loeser, Esq.

Plaintiff Jovanna Edge owned Hillbilly Hotties, a bikini barista stand in Everett. In 2009, the Everett Police Department (“EPD”) began to receive several citizen complaints related to such bikini barista stands. As a result, the EPD launched an undercover investigation and found that some baristas at this type of stand were openly violating the existing criminal code prohibiting various forms of lewd conduct. Thus, the City enacted EMC §§ 5.132.010–060, a Dress Code Ordinance applicable only to “Quick-Service Facilities” like drive-throughs and coffee stands, and amended its criminal code to broaden the definition of “lewd act” and created the crime of Facilitating Lewd Conduct. Plaintiffs’ motion for a preliminary injunction alleged that the new measures were impermissibly vague because they used ambiguous language to define parts of the body that must be covered by employees, owners, and operators of barista stands, and that a person of ordinary intelligence was denied a reasonable opportunity to know what conduct the City prohibited. The district court granted the preliminary injunction and the City appealed.

The court first analyzed the Lewd Conduct Amendments, which expanded the definition of “lewd act” and created the misdemeanor offense of Facilitating Lewd Conduct. The district court held that the amended definition of “lewd act” failed to give a person of ordinary intelligence a reasonable opportunity to conform his or her conduct to the City’s law. On appeal, the court found that the public would not be left to guess at the meaning of the term “anal cleft,” specifically because the meanings of both “anal” and “cleft” were easily discerned through recourse to a common dictionary. as the definition of lewd conduct was clear. The court therefore held that the activity the Lewd Conduct Amendments prohibited was reasonably ascertainable to a person of ordinary intelligence.

The court next reviewed the district court’s order enjoining enforcement of the Dress Code Ordinance, which mandated that employees, operators, and owners of “Quick-Service Facilities” comply with the City’s dress requirement. The terms of the Dress Code Ordinance were sufficiently clear to preclude enforcement on “an ad hoc and subjective basis” since the dress requirement clearly defined areas of the body that owners and employees were required to cover while operating Quick-Service Facilities, using commonly understood names for those body areas. Furthermore, even assuming plaintiffs could prove that their intent was to convey a particularized message, and satisfy the first requirement for classification as expressive conduct, plaintiffs’ First Amendment claim would still fail due to their failure to show a great likelihood that their intended message would be understood by individuals receiving it. Moreover, as the court held wearing pasties and g-strings while working at Quick-Service Facilities was not “expressive conduct” within the meaning of the First Amendment, the Dress Code Ordinance did not burden protected expression. Accordingly, the court vacated its preliminary injunction and remanded the case for further proceedings.

Edge v. City of Everett, 2019 WL 2864410 (9th Cir CA 7/3/2019)

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