Between 2006 and 2007, Settles Bridge Farm LLC purchased 36 acres of property in a low-density residential zone in the City of Suwanee, Georgia, with plans to construct a residential subdivision there. In Dec. 2006, a 41-lot subdivision plan was submitted to the City, and several variances to make way for the development were issued.

Before Settles Bridge began construction on the subdivision, the company was approached by Notre Dame Academy, which had hoped to purchase the property to build a school. Since the R-140 residential zone in which the property was included allowed schools as a permitted use, Settles Bridge abandoned its residential plan, and agreed to sell the property to Notre Dame. A purchase contract was signed in Feb. 2008.

Upon learning of the sale, City officials took an interest in the school project, which they discovered was allowed as of right in the R-140 zone without public review. In late Feb. 2008, the City Council imposed a 3-month moratorium on all building permits for large projects over a certain square footage located in residential zones. The City Council, in May 2008, amended its zoning ordinance to require a special use permit (SUP) for large development projects in residential zones. Projects covered included those with one or more buildings of 20,000 square feet total, a cumulative land disturbance of more than five acres, and any residential subdivision with more than seven lots. Projects which obtained approval prior to the amendment were not required to obtain an SUP, but new developments were required to do so, meaning that Settles Bridge’s residential development would not have required an SUP, but the Notre Dame School project, having obtained none of its required approvals, would have needed an SUP.

Neither Settles Bridge nor Notre Dame applied for an SUP for the school project. Instead, both parties filed suit against the City challenging the ordinance and the moratorium. Notre Dame settled its suit with the City and terminated its purchase contract with Settles Bridge.

At trial, the court found in favor of Settles Bridge, holding that the City had effected a regulatory taking of the property, and awarding Settles Bridge over $1.8 million in damages based on diminution in property value, as well as over $461,000 in interest. The City appealed.

On appeal, the City argued, and the appellate court agreed, that the case was unripe for review because Settles Bridge had not applied for an SUP, nor had the City denied an SUP for the school project, meaning that Settles Bridge had not exhausted its administrative remedies before the City Council. The only way Settles Bridge could have survived the City’s motion to dismiss was by showing that its application for an SUP would have been futile in this case because the decision-making body had already decided the issue against Settles Bridge. Here, the court held that the amendment of the City ordinance which required an SUP did not decide the question of whether the Notre Dame school project was entitled to an SUP for that specific project. Thus, the court held that the futility exception did not apply, and Settles Bridge could not survive a motion to dismiss for failure to exhaust administrative remedies. The court granted the City’s motion and reversed the trial court’s findings and monetary award.

City of Suwanee v. Settles Bridge Farm LLC, 2013 WL 593504 (Ga. 2/18/13)

The opinion can be accessed at: http://www.gasupreme.us/sc-op/pdf/s12a1599.pdf

Pegasus Tower Company sought to construct a 152.5-foot monopole cellular tower in Louisville, Kentucky, on property owned by Village Manor Properties, adjacent to property owned by appellant, Masonic Homes of Kentucky, Inc. In accordance with Kentucky law, Pegasus submitted a uniform application to construct the tower to the Louisville Metro Planning Commission, which held a hearing on the matter in December 2010. After hearing testimony from experts regarding the proposal’s conformity with the comprehensive plan and local laws, as well as opposition testimony from concerned neighbors, including Masonic Homes, the Commission approved the application. Masonic Homes appealed.

On appeal, Masonic Homes argued that the Committee had exceeded its statutory authority by granting Pegasus’s uniform application, which Masonic Homes also contended was not supported by substantial evidence. Further, Masonic argued that because Pegasus was “not in the business of building cell towers” it had no standing to apply to the Commission for a uniform permit, and the Commission had no authority to issue such a permit. Masonic Homes also argued that Pegasus had failed to provide sufficient evidence that the site it had chosen was the best available. Lastly, Masonic Homes argued that Pegasus should have been required to obtain site approval from the state Office of Historic Preservation.

The trial court, finding that Masonic Homes had waived its standing challenge by failing to raise standing as an issue before the Commission, and further finding that the Commission’s decision was supported by substantial evidence, affirmed the Commission’s decision and dismissed Masonic’s claim. Masonic Homes  appealed.

On appeal, the court limited its inquiry to the question of whether the Commission had acted arbitrarily by (1) exceeding the scope of its statutory powers, or (2) failing to provide procedural due process, or (3) basing its decision on a record containing insufficient evidence. Masonic had renewed its standing challenge, which the appellate court also held to have been waived by Masonic Homes’ failure to raise the issue at administrative hearings. Further, the court held that even if Pegasus’ application had been defective for lack of standing, the Commission had not, as Masonic claimed, lost subject matter jurisdiction over the application. The court held that the Commission was statutorily authorized to regulate placement of all cellular towers, and thus had jurisdiction over applications filed by any party wishing to erect such a tower. Finding no jurisdictional defects in the Commission’s action, the court rejected the claim that the Commission had exceeded its statutory authority in considering and ultimately approving Pegasus’ uniform application.

On the matter of substantial evidence, the court upheld the reasoning of the lower court, which had found that there was substantial evidence that the visual impacts on surrounding properties would be minimal; that the proposed site was close to an existing commercial complex which contained railroad tracks, billboards, and the appurtenant infrastructure; that choosing another site would simply relocate the inconvenience to another neighborhood; that sufficient expert testimony had been heard showing the site was suitable and in conformity with local laws and comprehensive plans; that no other alternative sites had been proposed; that alternative placements of the tower on the same property would not have been feasible; and that opposition to the project was principally from laypeople who were also interested neighbors unhappy with the potential visual impacts of the tower. Given the extensive evidence provided by Pegasus, and the existence only of generalized neighborhood opposition, the court held that the Commission had properly based its decision on substantial evidence.

Lastly, the court rejected Masonic’s argument that the Commission should have required approval from the Office of Historic Preservation for the project. The court found no statutory authority on the part of the Commission to impose such a condition during a uniform application process which is clearly delineated in state statutes. The laws in question permitted the Committee simply to approve or disapprove the application, and contemplated no latitude for the imposition of novel conditions not covered by the statutory scheme.

Masonic Homes of Kentucky, Inc. v. Louisville Metro Planning Commission, 2013 WL 462345 (Ky. Ct. of Appeals 2/8/13)

The opinion can be accessed at: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20KYCO%2020130208270.xml&docbase=CSLWAR3-2007-CURR

The Association of Guineans in Atlanta, Inc., sought a special land use permit from the Dekalb County Board of Commissioners to create a place of worship and family life center in a residence, which was located in a district zoned for single-family homes. The Board denied the permit, and the Association appealed, seeking a declaratory judgment, injunction, and writ of mandamus. The Board moved to dismiss the action on the grounds that the Association had not raised any constitutional claims in any proceeding before the Board, and therefore that the Association had not exhausted its administrative remedies before seeking judicial review. In response to the Board’s motion, the Association amended its claim to add a challenge under the Religious Land Use and Institutionalized Persons Act (RLUIPA); an amendment which the Board also contested on the same grounds as before. The trial court granted the Board’s motion to dismiss, and the Association here appeals.

The Georgia Supreme Court affirmed the dismissal, upholding the trial court’s finding that a landowner challenging a local board on constitutional grounds must have first raised the challenge before the local board, providing an opportunity for an offending ordinance to be amended or a potentially unlawful activity or problem to be rectified. While the Association argued that it had verbally raised its challenges before the Board prior to filing suit, the Court held that a verbal challenge must have been sufficient to put a zoning body on notice that its laws or practices were being challenged. The court held that this notice was not given to the Board, in part because the Association had failed to use terms like “constitutional” or “unconstitutional” at any time in its conversations before the Board. Simply stating that the Association intended to use the property for worship, or that the Association disagreed with the Board’s determination, was not enough to put the Board on notice that it would face a constitutional challenge to the property’s residential zoning designation or the validity of related ordinances. The court affirmed the dismissal of the Association’s claim on the grounds of failure to exhaust administrative remedies.

However, the court did agree with the Association’s second challenge to the trial court’s ruling, finding that the lower court had erred when it dismissed the Association’s RLUIPA claim on the grounds that the Association had not made a prima facie case of a RLUIPA violation. Because the trial court had been ruling on the Board’s motion to dismiss–not on a motion for summary judgment– the court was required to assume that all the factual allegations made by the Association were true, and then to determine whether the Association could still prevail under RLUIPA under those facts which most favored the Association’s position. Since the trial court failed to apply the proper standard, its decision to dismiss the Association’s RLUIPA claim was in error. The Georgia Supreme Court reversed that portion of the dismissal, and remanded the case for further review.

Association of Guineans in Atlanta, Inc. v. Dekalb County, 2013 WL 398942 (Ga. 2/4/13)

The opinion can be accessed at: http://www.gasupreme.us/sc-op/pdf/s12a1603.pdf

Stueve Brothers Farms, LLC, owns a large tract of land within the Prado Dam Flood Control Basin in Orange County, California. Following construction of the Prado Dam in 1941, the federal government had obtained flowage easements across Stueve Brothers Farms’ property below 556 feet in elevation. After a decision by the Army Corps of Engineers in 1976 to complete dam improvements at Prado Dam, the government determined that the flood inundation line would need to be raised, necessitating the acquisition of additional flowage easements across nearby properties for lands under 566 feet in elevation.

The federal government then signed an agreement charging the Orange County Board of Supervisors and Orange County Flood Control District (“Orange County Boards”) with the task of obtaining these new flowage easements. Included in the easements to be acquired were those across Stueve Brothers’ property for the 10 additional feet between the existing easement elevation and the post-improvement inundation level for Prado Dam. In the ensuing years, the Orange County Boards purchased properties adjoining Stueve Brothers Farms, and attempted unsuccessfully to obtain the Stueve Brothers’ property.

In 2003, the Army Corps released a flood plain map showing the new inundation line at 566 feet in elevation, prompting the city of Chino to rezone all portions of the Stueve Brothers’ property below 566 feet in elevation, designating those areas for “passive recreation and open space use” only. Chino’s rezoning action was required in order for the city to remain eligible for federal flood insurance, Stueve Brothers claimed. When Stueve Brothers sought to develop their property in 2009, the city of Chino amended its zoning plan to allow for “mixed-use residential, commercial, office and industrial uses” on the land above 566 feet in elevation, and to permit the use of soils from the new inundation zone to raise Stueve Brothers’ remaining 93.3 acres above the new flood inundation line for such development. The Corps approved the plan, but gave no indication when it planned to follow through with its intention to obtain flowage easements over the Stueve Brothers’ property.

Stueve Brothers then filed a Fifth Amendment takings claim in the Court of Federal Claims, seeking compensation for the possible future inundation of their property once the Prado Dam improvements were completed. In the original action, Stueve Brothers relied on the theory of inverse condemnation. The Federal Government moved to dismiss the action for failure to state a claim, asserting that an inverse condemnation claim requires proof of either permanent flooding or “multiple, actual physical invasions of water.” The Stueve Brothers countered by arguing that the flooding easement, taken via the designation of a new flood plain, itself constituted a permanent physical taking, regardless of “actual physical intrusion, invasion or trespass.” The court sided with the Federal Government, holding that the “apprehension of future flooding” rather than “flooding which has actually occurred” was not sufficient to show inverse condemnation or a taking.

Plaintiffs here file a motion for reconsideration and seek to amend their complaint in light of new evidence that the federal government had, at some time in the past, entered the Stueve Brothers property and placed concealed and underground surveyors’ monuments there to demarcate the flood elevation lines. The plaintiffs asked the court to reconsider its decision based on several new arguments—first, that the new evidence of the surveyors’ monuments is enough to sustain a physical takings claim; next that there exist additional takings theories under which they can recover, namely the hybrid takings theory, the cloud on title theory, the inequitable precondemnation conduct theory, and a general fairness and justice theory.

The Court dismissed the new takings theories as unripe, noting that the plaintiffs had not previously raised them, and had not shown any proof that they could not have raised them in their original complaint. Even if the theories had been timely, the Court dismissed each as being futile.  Regarding the cloud on title theory, plaintiffs attempted to rely on Hurley v. Kincaid, 285 U.S. 95 (1932) to show that the Federal Government’s actions, as well as its statement of intent to take a flowage easement, but subsequent failure to do so, had cast a cloud on the title of Stueve Brothers Farms’ property by saddling it with the threat of future flooding and the difficulties of selling a property that will likely be subject to flooding, without compensation for that flooding. However, the Court held that plaintiffs had misinterpreted Hurley, which had actually involved the Supreme Court refusing to issue an injunction where just compensation through a takings process was an available remedy. In that case, the Court had assumed for purposes of its analysis that the government’s actions had created a cloud on the Hurley title, and held that if there was a cloud on the title, a takings claim would be the remedy, not an injunction. This was by no means a conclusive finding of cloud on title in that case, making it an unavailing argument for Stueve Brothers Farms.

On the hybrid takings theory, plaintiffs relied on Drakes Bay Land Co. v. United States, 191 Ct.Cl. 389, 424 F.2d 574 (1970), a case in which the National Park Service was effectively able to prevent development on a parcel of land without resorting to a taking. In that case, Congress had declared through legislation its intent to acquire the property, and the Park Service had taken numerous positive steps toward preventing development on plaintiffs land, but had refused to follow through with an actual condemnation or compensation of the landowner. Here, the Court found no similar positive acts undertaken by the Federal Government. While Orange County had made zoning changes, these acts could not be imputed to the Federal Government. Unlike in Drakes Bay, the government’s actions had not impeded Stueve Brothers’ access to their property. Further, the Court held that merely publishing a flood map containing the plaintiffs’ property, and engaging in discussions about the need to acquire flowage easements, did not amount to a hybrid taking of the type at issue in Drakes Bay. Thus, the Court held the hybrid takings claim, even if it had been timely, was not availing.

On the fairness and justice theory, the Court found that no such claim existed, holding that the plaintiff had merely stated the policy purposes behind takings jurisprudence in general to attempt to invent a new cause of action in which a landowner should be given compensation for government actions which do not amount to a taking but which, in the interests of fairness and justice, should nevertheless be compensable. Such an attempt could not overcome the fact that takings procedures and rules already exist to foreclose Stueve Brothers Farms’ claims in this case.

However, the Court did permit the plaintiffs to amend their complaint to add a takings claim for the land occupied by the surveyors’ monuments. Plaintiffs had claimed that the physical presence of the surveyors’ monuments was proof that the federal government had taken the entire flowage easement. The court disagreed, holding that the presence of surveyors’ monuments could serve as proof only that the federal government had taken the small portions of property currently housing the surveyors’ monuments. Since that was still a viable—if nearly inconsequential—takings claim, the court decided to allow plaintiffs to amend their complaint to add that claim.

Stueve Bros. Farms, LLC v. United States, 107 Fed.Cl. 469 (U.S. Ct of Fed. Claims 10/26/12)

The opinion can be accessed at: http://www.charitableplanning.com/cpc_1965553-1.pdf

 

The Town of Cary appealed the District Court’s decision invalidating the municipality’s sign ordinance as it applied to William Bowden who painted “Screwed by the Town of Cary” on his house. The court ruled that the ordinance was a content-based constraint on Bowden’s First Amendment rights. The Court of Appeals for the Fourth Circuit reversed, holding that the ordinance was a content-neutral restriction. When the court applied intermediate scrutiny it found that the ordinance did not violate the First Amendment.

The dispute arose when Bowden, who often quarreled with the Town, painted “Screwed by the Town of Cary” on his house after it was allegedly damaged by water discharge from municipal road-paving projects. In response, the Town issued a notice of zoning violation, citing to Chapter 9 of the Land Development Ordinance (LDO) which governs the placement and display of residential signs. The Town stated that under chapter 9, signs could not exceed two square feet or use high intensity colors or fluorescent pigments; Bowden painted the sign across a fifteen-foot swath of his house in a bright fluorescent orange paint. The Town explained to Bowden that the issue was the size and color of the sign and not the content, but Bowden still refused to remove it. Instead, he sued the Town in district court for infringing on his First Amendment rights. As mentioned before the court ruled in Bowden’s favor and this appeal followed.

The issue before the court was whether the sign ordinance was content neutral. A regulation is content neutral if it is “justified without reference to the content of regulated speech,” even if it “facially differentiates between types of speech.” Although chapter 9 does distinguish some content from others, such as holiday decorations and public art, “the distinctions themselves are justified for reasons independent of content.”

The LDO explicitly stated that the purpose of the sign ordinance was to promote aesthetics and traffic safety. The ordinance’s exemptions for public art enhance aesthetic appeal while holiday displays are only temporary, and therefore have a less significant impact on traffic safety. Because the exemptions bore a reasonable relationship to the interests of aesthetics and traffic safety, and because the regulation placed reasonable restrictions on only the physical characteristics of the signs, the court held that the ordinance is content neutral and examined its constitutionality under intermediate scrutiny.

Under this level of scrutiny, the sign would be constitutional if it “furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication.” The court first noted that the Town’s stated interests in promoting aesthetics and traffic safety are substantial. The Town provided documentation on how unregulated signage could depress property value, cause visual blight, and could even distract motorists if the paint was too bright or intense.

The court then moved on to determine if the ordinance is narrowly tailored, meaning that it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” The court held that the ordinance passed constitutional muster because the size, color and positioning restriction “[did] no more than eliminate the exact source of the evil it sought to remedy.” Additionally, the court noted that the ordinance does not place an outright ban on residential signs, but rather generally permits them subject to reasonable restrictions, and within these restrictions the sign could bear any message the speaker wishes to convey.

For the reasons set forth above the sign ordinance was constitutional and the Town of Cary did not infringe upon Bowden’s First Amendment rights.

Brown v Town of Cary, 2013 WL 221978 (C.A. 4 N.C. 1/22/2013)

The opinion can be accessed at: http://www.ca4.uscourts.gov/Opinions/Published/111480.P.pdf

 

Ben Ray and Brendan Coyne (“Plaintiffs”) live in residences approximately 0.4 miles away (2,212 feet for Ray and 2,002 feet for Coyne) from a planned unit development (“PUD”) that is anticipated to bring in twenty national retailers and house seventy to eighty apartment units. Plaintiffs filed a Petition for Judicial Review in an attempt to block its construction. The City Council and Mayor of Baltimore responded by filing motions to dismiss alleging that Plaintiffs lacked standing to challenge the PUD. Both plaintiffs claim that the construction of the PUD will adversely affect the character of each of their neighborhoods, mainly due to the addition of a Wal-Mart store. Plaintiffs claim that the Wal-Mart will force local business to close and lower the wages of neighborhood workers, thereby causing fewer people to be employed. This in turn will cause those people to neglect maintaining their properties which will decrease the overall values of houses in the area. Ray also claims that the Wal-Mart store will make his neighborhood more dangerous due to the increase in traffic through the narrow streets.

In order to have standing, a person’s property interest “must be such that he is personally and specially affected in a way different from that suffered by the public generally.” While Coyne produced no evidence showing that he can see or hear the PUD from his residence, Ray stated that he could view the PUD from his bathroom window during the winter months when there is no foliage on the trees, and can hear the PUD when his bathroom window is open. The City Court granted the motions to dismiss for lack of standing because neither plaintiff had shown any special interest or damage unique to themselves; the types of views, noises, traffic congestion, and worries about local businesses were not circumstances “unique or different from many other Baltimore residents among the general public.” Additionally, the court noted that Plainitffs would not qualify for prima facie aggrieved status because their properties were not adjoining, confronting or nearby property owners to the PUD. The Court of Special Appeals affirmed for the same reasons.

Under Maryland Code, any aggrieved person can appeal to the Circuit Court a zoning action by the City Council. An aggrieved person is one whose “personal or property rights are adversely affected by the decision of the board,” adding that this person must also be “personally and specially affected in a way different from that suffered by the public generally.” A property owner whose property adjoins, confronts or is near the property at issue is deemed, prima facie, to be specially damaged and therefore aggrieved. However, if a person’s property is far removed from the property at issue, a court will generally not consider that person aggrieved. But a person’s property that is still close enough to be considered as almost prima facie aggrieved and offers additional factors supporting an injury can still maintain “aggrieved person” status. Therefore, according to the court and past cases, proximity is the linchpin. The analysis of whether someone is specially affected is a fact-sensitive case-by-case inquiry.

Plaintiffs conceded that they were not prima facie aggrieved because they both live almost half of a mile from the PUD. Therefore, their only basis for standing would be as a specially aggrieved party by proximity. This means that they must reside close enough to be almost prima facie aggrieved and produce some additional evidence establishing injury. Unfortunately for Plaintiffs, the court found no instances where a person living over 2,000 feet away qualified as an almost prima facie aggrieved party. In fact, the court has applied this category of aggrievement to persons at a maximum of 1,000 feet away from the subject property.

Lastly, Plaintiffs attempted to establish standing under a third and final category, one that the court has never before found. This category requires a showing that the reclassification produces a harm directly and specifically impacting their property. Plaintiffs sought to prove this by arguing that the PUD would 1) detrimentally change the character of the neighborhood, 2) increase traffic, 3) create an eye sore, and 4) decrease property value. The court rejected all four arguments. It pointed out first that it had never upheld standing based on change in neighborhood character to a non-prima facie aggrieved party, in addition to the fact that the City Council conducted numerous reviews and held public hearings and meeting before determining that this PUD would change the character of the neighborhood for the better, not worse. The court then noted that, once again, it had never upheld standing to a party alleging increased traffic. Along those lines, Ray’s visibility argument failed because he failed to cited to any cases where a party, who lacked proximity to the rezoning action, was granted standing based on a claim of such limited visibility. Finally, because Coyne only offered lay opinion testimony claiming that property values would decrease, which the court deemed to be mere speculation about a future prospect. Expert testimony would have been needed in this situation, so the court refused to consider his argument.

Needless to say, Plaintiffs failed to satisfy this last category for standing. The court concluded that the Plaintiffs did not allege specific facts to demonstrate that they were specially aggrieved in a manner different than the general public, and therefore they did not have standing to bring this action.

Ray v Mayor and City Council, 2013 WL 216298 (Md. 1/22/2013)

The opinion can be accessed at: http://mdcourts.gov/opinions/coa/2013/21a12.pdf

In 1962, Levi Kemp built an earthen berm at the back of his property, located in Marshall County, Kentucky, for use as a shooting range. At the time, no county zoning ordinances, regulations, or state laws were in effect to govern shooting ranges. Kemp expanded the range several times, the most recent in 2006, and two years later obtained the Board of Zoning Appeals’ approval to continue operating the range. The plaintiffs in this case, the Yates family and the Tibbs family, moved across the street from the range in 1995 and 2006 respectively. The Plaintiffs filed a nuisance action against Kemp for the noise the range produced. Both parties moved for summary judgment.The trial court granted Kemp’s motion as to the plaintiffs’ claims for nuisance and damages to their property. This appeal followed.

The key statute here, Indiana Code section 14–22–31.5–6 (“section 6”), provides a safe harbor for owners and operators of shooting ranges against claims of noise pollution. Section 6 provides:

A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.

The plaintiffs argued that this safe harbor statute does not apply to Kemp because no laws or ordinances were in existence at the time he built and began operating his range. The court agreed, noting that the plain language of the statute supports this argument. In order for Kemp to be covered by the safe harbor and be immune from noise pollution liability, a law or ordinance governing shooting ranges must have been in effect when the range in question was built or initially operated.

After analyzing the statute and surrounding provisions, the court determined that the General Assembly, when drafting the laws, knew how to indicate that a provision applies to a shooting range that was built before an ordinance was enacted. Therefore, according to the court, if the legislature wanted section 6 to apply to all ranges regardless of whether they were built before or after governing ordinances took effect, it would have done so. However, because it did not, the court’s construction of section 6 meant that Kemp was not protected under it.

To recover on their nuisance action, plaintiffs had to demonstrate inconvenience, annoyance, or discomfort with the shooting range. The court had to decide if, by looking at the surrounding facts and circumstances, the plaintiffs had established a dispute of material fact as to whether Kemp actually caused them inconvenience, annoyance, or discomfort. The plaintiffs provided evidence that the gunshots from the range force them to avoid riding their horses due to fear that the horses would get startled and buck the rider to the ground. Jason Tibbs actually claimed that one day he was riding his horse when a gunshot spooked his horse which then reared up, causing him to fall to the ground and sustain injury. Additionally, because of the risk to riders, the Yateses had foregone a program to let at-risk youth ride their horses due to this danger. Plaintiffs also claim that to avoid the noise they remain indoors with the doors and windows closed.

For these reasons, the court found that there was a dispute of material fact as to whether the noise pollution from the shooting range caused the plaintiffs to experience inconvenience, annoyance or discomfort. In doing so the lower court’s decision granting summary judgment in favor of Kemp was reversed.

Yates v Kemp, 979 N.E. 2d 678 (Ind. App. Ct. 12/6/2012)

The opinion can be accessed at:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20INCO%2020121206181.xml&docbase=CSLWAR3-2007-CURR

In order for its signal to reach customers, T-Mobile built cell sites in various locations to maximize wireless service. Due to a significant gap in coverage in the Borough of Leonia, T-Mobile applied for a use variance in order to place an antenna and other equipment on the roof of an apartment building. This building, located in the “B Multi-Family Dwelling” zone, also happens to be the tallest in Leonia. The proposed plan was to fix eight antennas to the exterior of the building and install three equipment cabinets in the building’s courtyard. The use variance was needed because the building is in the multi-family zone and the height of the proposed plan would exceed that allowed by the zoning ordinance.

Several years before this, T-Mobile’s competitor, Sprint, was initially denied the ability to place antennas and other facilities on this same building, but after seeking judicial review it was allowed to. At the time of the case Sprint had antennas and other facilities installed on the building in the same manner as T-Mobile proposed. Furthermore, Sprint’s wireless equipment extended higher above the roofline than T-Mobile’s proposed facilities would. At the Board’s request to search for alternative sites, T-Mobile conducted an investigation but found no other reasonable alternatives. In the end, the Board denied T-Mobile’s application, claiming it would constitute a nonconforming commercial use in a residential zone, the antennas placed on the exterior of the building would result in encroachments into the required setbacks, and the height of the antennas would exceed the maximum height allowed by the zoning ordinance. Additionally, using its own expert and ignoring investigation and expert testimony by Plaintiff, the Board found that T-Mobile gap in coverage would not be totally remedied by placing the facilities on that building, and suggested that other locations would be better suited to fill the gap.

Plaintiff’s argument was threefold: “1) the Board’s decision unreasonably discriminated against the Plaintiff under the Telecommunication Act of 1996 (the “TCA”); 2) the Board’s denial of Plaintiff’s application has the effect of prohibiting wireless service, in violation of the TCA; and 3) the Board’s denial is not supported by substantial evidence in the record.” First, under the TCA, state or local governments are prohibited from discriminating among providers of wireless services that are functional equivalents of each other. That being said, the TCA does not prohibit all forms of discrimination, just unreasonable discrimination that creates an unfair market advantage. This occurs most notably when a municipality permits one provider to locate in a particular area to the exclusion of other providers. Applied to the present situation, Plaintiff’s expert testified that the proposed facilities would be similarly situated to Sprint’s, installed in the same manner and even being shorter than Sprint’s pre-existing facilities. The fact that Sprint had near-identical pre-existing facilities on the same building supported the court’s conclusion that Plaintiff satisfied the definition of unreasonable discrimination under the TCA.

Second, the court shifted its discussion to determining whether the Board’s decision prohibited Plaintiff from providing service in violation of the TCA. To help guide its analysis, the court relied on the Third Circuit’s two-part test for determining if a denial of a wireless service application rises to the level up unlawful prohibition of serve: “1) whether there is a significant gap in wireless service and 2) whether the proposed location is the least intrusive on the values the Board’s denial sought to serve.” By the testimony of Plaintiff’s expert, and also by the admission of the Board, Plaintiff did have a “major coverage gap” in Leonia. The record also showed that the installment of the proposed facilities would fill a majority of that gap. For these reasons Plaintiff had satisfied the first prong of the test. As for the second prong, the court relied heavily on Plaintiff’s investigation into alternative sites and its expert’s opinion that placing the facilities on the subject building would have the least negative aesthetic impacts. The court agreed, and found that the proposed facility was the least intrusive means of closing the coverage gap.

Lastly, the court addressed Plaintiff’s third argument that the denial of the application was not supported by substantial evidence. Under the TCA, “Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” New Jersey law requires “an applicant to prove both positive and negative criteria to obtain a use variance.” The negative criteria require proof that the variance “can be granted without substantial detriment to the public good” and that it “will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” In the commercial context, the positive criteria is satisfied if the use is particularly suited for the proposed site, which can be met if the use promotes the general welfare. A facility promotes the general welfare if an FCC license was issued to the service provider.

Here, positive criteria was satisfied because 1) the building is particularly suited for T-Mobile’s use because it would lessen the coverage gap, and 2) T-Mobile has an FCC license. Regarding the negative criteria, the court found that Plaintiff had sufficiently established that variance could be granted without adversely affecting the public good or being inconsistent with the intent and purpose of the ordinance. For support, the court emphasized once again that the equipment used by Sprint was very similar and already installed on the roof at issue and that no expert of the Board disputed the contention that placing the facilities on an existing building is more desirable than constructing a new tower. Also, the Board never proposed a more suitable alternate location.

Additionally, the court found that the variance at issue here is “not inconsistent with the intent and purpose of the master plan and zoning ordinance.” In fact, the Leonia Zoning Code even stated that the ordinance’s purpose was to collocate wireless antennas on as few buildings as possible rather than spread them out or construct new ones. Because T-Mobile’s plan was to place its facilities with Sprint’s on the same building, its proposal was consistent with the objectives of the ordinance. Therefore, for these reasons, the denial was not based on substantial evidence and the Court required the Board to grant T-Mobile’s application and associated permits.

T-Mobile Northeast LLC v Borough of Leonia Zoning Board of Adjustment, 2013 WL 144269 (D.N.J. 1/10/2013)

 

Roundstone Development, LLC (“Roundstone”), sought to develop an affordable-housing subdivision in the City of Natchez. The land pegged for the site had two different zoning classifications: O–L (Open–Land) and R–1 (Single–Family Residential). The Planning Commission denied the plan after finding that the O-L area must be rezoned R-1 before the plan could be approved. After this, the Mayor and Board of Alderman denied Roundstone’s rezoning request. Both the lower court and appellate court upheld the decision, and subsequently Roundstone appealed to the Supreme Court of Mississippi. The court affirmed, holding that the City did not act arbitrarily or capriciously in denying the request.

Roundstone had sought to develop a subdivision consisting of approximately sixty-five single-family homes. It claims that prior to purchasing the site, it relied on three letters from the Director of Planning and Zoning, the Planning Director, and the Land Use Planner, all stating that the area was zoned R-1 and the use of the property for single-family development was permitted. Unfortunately for Roundstone, all three letters were incorrect about the land’s actual zoning status. The Planning Commission refused to approve the site plan application, and later denied a subsequent application seeking to rezone the property. Roundstone appeals the decisions to the Mayor and Board of Alderman, which voted unanimously to affirm the Commission’s decision. Roundstone appealed to the Circuit Court which affirmed the decision as well, finding that the decision was “supported by substantial evidence and was neither arbitrary nor capricious.” The Court of Appeals upheld the decision as well, and this appeal followed.

The City interpreted section IV(1) of its Zoning Ordinance and Subdivision Regulations as requiring O-L district to be reclassified before being subdivided into urban building sites for single-family homes, and rejected Roundstone’s site plan because it did not comply with this ordinance. The court had to decide whether the City’s interpretation of its zoning ordinance to require rezoning from O-L to R-1 was not manifestly unreasonable. The statute at issue provides, in pertinent part:

The regulations are designed to protect the essentially open character of the districts by prohibiting the establishment of scattered uses that are unrelated to any general plan of development and that might inhibit the best future urban utilization of the land. It is intended that land in these districts will be reclassified to its appropriate residential, commercial, and industrial category in accordance with the amendment procedure set forth herein whenever such land is subdivided into urban building sites.

A number of interpretations support that of the City’s. First, reclassification of the area prior to development would “protect the essentially open character of the districts by prohibiting the establishment of scattered uses that are unrelated to any general plan of development and that might inhibit the best future urban utilization of the land.” Further, the last sentence explicitly states that reclassification is intended. In addition, the phrase “whenever such land is subdivided” could mean that reclassification should occur prior to any subdivision. For these reasons the court did not find any reason to believe the City’s interpretation of section IV was unreasonable. Therefore, the City’s decision to deny the site plan and require rezoning was not improper.

The next issue the court had to tackle was whether the decision to deny the rezoning request was arbitrary, capricious, discriminatory, illegal, or without substantial basis. To reclassify property, the party seeking reclassification must show, by clear and convincing evidence, either “that (1) a mistake in the original zoning occurred; or (2) a change in the character of the neighborhood occurred that justified rezoning, and a public need existed for the rezoning.” The court ruled out a mistake in the original zoning, and proceeded to determine the more specific issue of “whether the character of the neighborhood had changed to such an extent as to justify reclassification from O–L to R–1, and whether a public need for rezoning existed.”

The court supported the City’s reliance concerns over traffic congestion reasons and the potential negative impacts the rental properties would have on the use and enjoyment of surrounding properties. The court was unconvinced by Roundstone’s allegation that racial or class animus played a role in the Board’s decision, in part because the Board used its common knowledge and familiarity with its municipality in reaching its decision, and also because Roundstone provided no proof that the decision was discriminatory or otherwise motivated by class, race, or other animus. For these reasons the court found the decision was not arbitrary, capricious, discriminatory, illegal, or without a substantial basis. Therefore the decisions of the lower courts were affirmed.

Roundstone v. Natchez, No. 2010-CT-00274-SCT. (MISS 1/18/2013)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=8328444813561872010&hl=en&as_sdt=2,33

 

In 2008, William H. Thomas Jr. petitioned the Tennessee Department of Transportation (TDOT) for permits to maintain billboards on three sites he leased from John Charles Wilson. Despite the fact that TDOT denied the permits, citing a failure to adhere to zoning requirements, Thomas continued with construction of the billboards, then filed a request for a contested case hearing on one of the permits pursuant to the Uniform Administrative Procedures Act (UAPA). TDOT granted the request, held the administrative hearing, then decided against issuing the permit applications. Thomas appealed to the Chancery Court of Davidson County, Tennessee, for review of TDOT’s decision. The Chancery Court found in TDOT’s favor; Thomas appealed, and that action is still pending.

In the meantime, Thomas and landowner Wilson (hereafter, “Plaintiffs”) filed a declaratory judgment action on the TDOT’s denial of the remaining two permit applications. TDOT opposed the action, arguing that the plaintiff had failed to obtain a final determination on the matter by appealing to the TDOT itself. Before the court acted on TDOT’s motion to dismiss, additional declaratory judgment actions were added challenging TDOT’s denial of permits for billboards on land owned by Kate Bond; permit denials for which Plaintiffs had also requested a contested case hearing, which had not been resolved at the time Plaintiffs sought to add those permit denials to his prior declaratory judgment action. TDOT again moved to dismiss the action, urging that the matter had not yet come to final determination before the agency, as contested case hearings had not been held. In March 2012, after a hearing on TDOT’s motion to dismiss, the court dismissed the action for lack of subject matter jurisdiction, citing both sovereign immunity and a 2008 decision by the Tennessee Supreme Court, Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008). Plaintiffs here appeal.

On appeal, the sole matter before the Tennessee Court of Appeals was whether the Chancery Court had acted improperly in dismissing the action for lack of subject matter jurisdiction. In a Memorandum Decision, the Court noted that TDOT is authorized by state statute to control the placement, use, and maintenance of billboards adjacent to highways and main thoroughfares throughout the state. Appealing a permit denial requires following the administrative requirements of the state’s UAPA. As such, a declaratory order from the TDOT is required before an aggrieved applicant may bring a declaratory judgment in state court requesting review of the denial. Until Plaintiffs complied with the contested case hearing process with TDOT, the court held that a declaratory judgment action was premature, and the lower court had been correct in dismissing the complaint on that basis.

Plaintiffs claimed they did not need to comply with the UAPA procedures in this case because they had, in their declaratory judgment action, raised constitutional challenges to the TDOT’s application of zoning restrictions. However, the court held that the Colonial Pipeline case contradicted plaintiffs’ arguments. The essence of the Colonial Pipeline case was the creation of three classes of constitutional challenges—“(1) challenging the facial constitutionality of a statute authorizing an agency to act or rule, (2) challenging the agency’s application of a statute or rule as unconstitutional, or (3) challenging the constitutionality of the procedure used by an agency.” The second and third types of challenges could be heard by administrative agencies, but the Colonial Pipeline court held that the first type of challenge was within the sole province of the judiciary. In this case, the court held that the plaintiffs’ claim, while difficult to discern, was not a facial constitutional challenge, meaning that the TDOT could hear the challenge within the established hearing procedure. Thus, the plaintiffs needed first to go through with the procedurally mandated contested case hearing process before seeking judicial review of the TDOT’s final order.

Wilson v. Tennessee Dept. of Transportation, 2013 WL 209048 (Tenn. Ct. App. 1/17/2013)

The opinion can be accessed at: http://www.tncourts.gov/sites/default/files/wilsonjohncharlesopn.pdf