This post was authored by Franceska Osmann, Jacob D. Fuchsberg Touro Law Center

Plaintiffs owned a vacant and zoned property with a plan to develop a residential hotel as a portion of their planned development. Hence, Plaintiffs sought approval from the City’s Zoning Administrator for their proposed use of the property. Administrator declined to provide a decision, stating that Plaintiffs must submit a full and complete application for a Zoning Certificate approval. Plaintiffs unsuccessfully appealed the Zoning Administrator’s decision with the City’s Board of Zoning Appeals, who informed Plaintiffs that the response was not an appealable administrative action. Plaintiffs then filed a Notice of Appeal with the trial court, who also held that there was no final appealable order and therefore the court lacked subject matter jurisdiction. Fifth District court affirmed the trial court’s dismissal and Supreme Court of Ohio declined to accept jurisdiction of appeal.

Days after filing state court action, Plaintiffs filed a federal action against the City in the U.S. Southern District Court of Ohio, claiming: “(1) deprivation of property and liberty interests without due process of law; (2) deprivation of property and liberty interests without due process of law by refusing to hear their appeal; (3) unequal protection of the law; and (4) deprivation of property and liberty interests pursuant to an unconstitutionally vague act.” Plaintiffs also sought declaratory judgement on the ground that Defendants violated City zoning code.

Defendants moved to dismiss the Plaintiffs’ claims on the ground that the Court lacked subject matter jurisdiction because the claims were unripe. Defendants also argued that the Court should abstain from hearing the case under the Younger abstention doctrine, which discourages federal intervention in state judicial matters without irreparable injury to the federal plaintiff. Because Plaintiffs did not receive a final decision from the City, Defendants argued that Plaintiffs’ claims were not ripe and that the dismissal will not bring Plaintiffs any hardships because Plaintiffs can still submit a zoning application. To address the ripeness issue, the Court assessed the four claims individually to determine whether the finality requirement was met for each claim.

Court determined that the finality is required for equal protection claims. In order for an equal protection claim to be ripe, Plaintiffs must show that the parties have reached a sort of an impasse. Because Defendants had admitted that he would not issue a Zoning certificate and Plaintiffs believed that the proposed use was permitted under the City’s zoning code, the Court concluded that the parties were at an impasse and that the finality requirement was satisfied. As for the three due process claims, the court determined that although finality was not required, Plaintiffs demonstrated finality and concluded that the due process claims were ripe. The court also found that Plaintiffs will suffer hardship if the Court dismisses the complaint because of the incurring damages from lost profits and increase construction costs resulting from Defendant’s failure to approve the proposal. The court determined that Plaintiffs do not have other viable options for relief without judicial intervention.

As for the Defendants’ application of the Younger abstention doctrine, the court concluded that the doctrine is not applicable to this matter because the present case does not fit into any of three types of proceedings that qualify as “exceptional circumstances.” For all the reasons stated above, the Court denies Defendants’ motion to dismiss.

Golf Vill. N., LLC v. City of Powell, 338 F. Supp. 3d 700 (S.D. Ohio 09/06/2018)

This post was authored by Christopher Guercio, Jacob D. Fuchsberg Touro Law Center

On August 31, 2020, Tri County Telephone Association, Inc. (TCT) applied to the Park County Planning and Zoning Department for a special use permit.  The special use permit would allow TCT to erect a 150’ foot high communications tower. The tower would have the ability to provide approximately seventy-five households within the county wireless internet service. The area of concern had no prior internet service. The initiative for erecting the communications tower is through the federal program CARES ACT, through which the endeavor will be funded. The communications tower would be a benefit to the general public of the county. The Park County Planning and Zoning Department granted the special use permit to TCT.  James Jolovich opposed the granting of the special use permit.  At a board meeting, Mr. Jolovich claimed that the communications tower would obstruct his view of Heart Mountain, and that the tower would have a negative impact on his health. Mr. Jolovich asked the board to consider alternative locations for the tower.

Mr. Jolovich filed an appeal of the decision from the District Court of Park County. Mr. Jolovich contends two main points: did the Board have a rational basis for approving TCT’s application for a special permit to construct its communications tower; and did the board act arbitrarily or capriciously in approving TCT’s application without considering alternative sites for the proposed tower.

The Supreme Court affirmed the District Court’s decision. The court addressed Mr. Jolovich’s two main arguments.  First, the Court determined that the board had a rational basis for its approval of the permit. The court found that the planning staff properly classified the tower as a major utility and thus followed the county regulations pertaining to major utilities. Under these regulations, the tower is not considered an over-sized utility, bringing the tower into compliance with a special use permit. The Park County development regulations require that adverse impacts be identified and mitigated. The planning staff considered, among other issues, the present use of the land, vegetation, animal life, and the impediment of the tower upon any of them. The court determined that the board had sufficient information, followed the regulations, and therefore was not arbitrary or capricious in its decision. Additionally, the court found that the Park County’s development regulations do not mandate the Board to consider alternative sites in this case, as Mr. Jolovich had asked.  Finally, the court held that the visual impacts of the communication tower would provide minimal to no visual impact or health impact for Mr. Jolovich, as the tower will not require beacons, guyed wires, nor emit noise or radiation.

Jolovich v. Board of County Commissioners of Park County, 2022 WL 3134134 (WY 8/5/2022)

This post was authored by Victor Gesuele of Touro University Jacob D. Fuchsberg Law Center

On March 13, 2019, the City of New York approved a zoning regulation that affected the area located in the vicinity of Douglaston Parkway and Northern Boulevard in Queens, NY. The change in zoning permitted private developers to erect an eight-story residential building along with a five-story mixed use structure. The buildings would contain eighty-three affordable senior residences with thirty-four units becoming permanent affordable dwelling units.

Douglaston Civic Association challenged the new zoning regulation. Douglaston argued three main points. First, the change in zoning was illegal spot zoning. The Supreme Court of New York admonished Douglaston’s claim noting that there were other multi-story structures in the area. The court said the change in zoning also benefited the general welfare of the community by creating affordable senior housing, which was needed in the community.

Second, Douglaston argued that there was lack of adequate notice to participate in the City Planning Commission’s Hearing and it violated due process. Douglaston alleged according to ULURP (Uniform Land Use Review Procedure), ten days’ notice was required, but community residents were only advised nine days prior to the December 5,2018, hearing. The Supreme Court of New York rejected this claim. The court believed adequate notice was provided to the public and the  Douglaston Civic Association.

Lastly, the zoning amendment violated the State Environmental Quality Review Act. The Supreme Court of New York rejected Douglaston’s claim. The court ruled that the City Planning Commission (CDC) considered the zoning change. The CDC directed the Department of City Planning to conduct an extensive assessment to determine the environmental impact to the area. The Department of City Planning’s assessment produced an Environment Assessment Plan with 225 pages indicating the impact to the environment was minimal.

On Appeal, the three arguments presented by the Douglaston Civic Association were revisited. The Appellate Division of New York rejected all of Douglaston’s arguments. The Appellate Division concluded the change to zoning was not spot zoning. The change in zoning benefited the general welfare of the community and not just one property owner. The Appellate Division agreed with the lower court. The City Planning Commission took a “hard look” at environmental concerns and declared that the environmental impact was not significant. Finally, the Appellate Division concluded that insufficient notice of the City Planning Commission’s public hearing did not negate the zoning amendment. The court said petitioners cannot generally raise “the legal rights of another.” The court further stated that a deficiency in notice “would not, by itself, invalidate the actions of the commission at that meeting.”

Douglaston Civic Association v. City of New York, 199 A.D.3d 562, 159 N.Y.S.3d 23 (2021)

This post was authored by Amy Lavine, Esq.

A case decided in August by the Washington Court of Appeals held that a developer had acquired vested rights to have its permit applications reviewed under regulations that were included in a development agreement that was in place when it submitted those applications, despite the city’s subsequent termination of the development agreement and its adoption of new and more restrictive regulations.

The developer in the case, Shelter Holdings, owned property in an area known as Issaquah Highlands, which was the subject of a development agreement that the City of Issaquah had entered into in 1996 with various development partnerships. Shelter submitted preliminary site plan applications in August 2017 for the construction of a medical office building and a self-storage facility, but in March 2018 the Issaquah City Council voted to terminate the development agreement and adopt new regulations for the Issaquah Highlands area. The city also determined that Shelter did not have any vested rights under the development agreement, and that it would therefore have to modify its pending site plan applications with respect to several of the city’s newly adopted and more stringent regulations, including parking and floor aspect ratio requirements. Shelter declined to make these changes and appealed the city’s determination instead, but the county superior court ruled in the city’s favor and found that Shelter was not entitled to continue its applications under the regulations that were in place under the development agreement. The Washington Court of Appeals then reversed.

The court explained on appeal that Washington statutes require development agreements to “set forth the development standards and other provisions that shall apply to and govern and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement,” and that they also require development agreements to include “a build-out or vesting period for applicable standards.” These statutory provisions were adopted, the court observed, to allow local governments to modify the common law rule of vesting, which in Washington generally requires that a complete land use application must be considered under the laws and regulations in effect at the time of the application’s submission. The common law rule can inadvertently “sanction the creation of a new nonconforming use,” however, and development agreements provide an alternative method for local governments to provide certainty in the development process.

The development agreement in this case stated that a “buildout period” would run for twenty years after the first final plat approval for the Issaquah Highlands Project, and during this buildout period, “the City shall not modify or impose new or additional Development Standards beyond those set forth in this Agreement.” The development agreement also provided that “the Development Standards shall continue to apply to all applications for Implementing Approval submitted after expiration of the Buildout Period, except either party may terminate this Agreement, and the zoning and development regulations may be modified….” While Shelter interpreted this language to mean that its site plan applications were vested because they were submitted before the development agreement was terminated, the city contended that applications were only entitled to vesting if they were submitted within the twenty year buildout period.

The court ruled that the city’s interpretation was inconsistent with the plain meaning of the contract terms, however, and that it also undermined the certainty intended to be provided by the development agreement statutes. As the court explained, the term “implementing approvals” was defined broadly enough in the development agreement to encompass Shelter’s site plan applications. As a result, there was no ambiguity that Shelter’s applications were entitled to vesting since the agreement stated that “the Development Standards shall continue to apply to all applications for Implementing Approval submitted after expiration of the Buildout Period…” The significance of the buildout period, the court explained, was that the development standards could only be changed after it expired, but it did mean that applications submitted after the buildout period ended would be barred or disqualified from vesting. Indeed, the development agreement provisions “confirm[ed] that vesting is most crucial during the window of time between post-build-out and pretermination because the standards could potentially change.” The court also refused to read any retroactivity into the provisions in the development agreement that authorized the city to impose new regulations that would “thereafter” apply, since interpreting “thereafter” in this manner would conflict with the plain meaning and intent of the development agreement.

IHIF Commercial, LLC v. Issaquah, 2022 WL 3583970 (Wash. App. 8/22/22)

This post was authored by Tracy Feldman, Jacob D. Fuchsberg Touro Law Center 

The United States Court of Appeals, Sixth Circuit held that Residents did not meet their burden of showing that they had a protected property interest in maintaining 8383 Keister Road without the adopted variances.  Residents (neighbors) brought challenges against Butler Country, the Board of Zoning Appeals, and Alan Daniel asserting a claim for violation of their procedural due process rights under the Fourteenth Amendment and were seeking relief to invalidate the issuance of the variances, a declaratory judgment, and damages. The Residents also moved for a temporary restraining order and a preliminary injunction. 

Subsequently, Butler Country and the Board of Zoning Appeals had opposed the motion and Germantown filed a motion to dismiss the Residents’ complaint for lack of subject matter jurisdiction and failure to state a claim. On November 16, 2021 the District Court denied the motion for a preliminary injunction and held that the Residents did not have a protectable property interest, so were unlikely to succeed upon the merits of their due process claim. 

In November 2020, Germantown LLC contracted to build a Dollar General store on the property (8383 Keister Road).  The Board of Zoning Appeals had granted variances to Germantown that required some adjustments to the applicable zoning requirements.  This property was zoned as part of a B-2 Community Business District despite the fact that residential property owners surrounded the parcel.

The property owner, Alan Daniel, had transferred the property to his son in 2013, when he took a mortgage interest in the property.  The plaintiff Residents realized months after the zoning board hearing took place, that although Alan Daniel had a financial interest in 8383 Keister Road, he had played a key role in making the determination of whether Germantown would receive the variances.  Alan Daniel was a part of the quorum requirement of three that would vote along the other board members in favor or denial of granting zone variances.  None of the Residents had objected to Germantown’s application at the time nor did they attend the Board of Zoning Appeals meeting or submit any comments in response to such proposed changes in the variances. 

Months later, the Residents had discovered Daniel’s obvious conflict of interest and they informed the Butler County prosecutors to make them aware of the fiduciary role that Daniel had at the time of vote.  Although this conflict of interest was seemingly apparent, that office did not file any suit against Daniel. 

The Court of Appeals addressed the fundamental issue of whether the Resident’s had a cognizable property interest claim in the outcome of the zoning decision without assessing the underlying apparently corrupt manner by which it had been rendered.  The Court did not agree with the notion that a benefit is discretionary only if it is exercised totally free of any corrupt means and cited to case law.  Rather the court hung its analysis on whether the discretionary power of a zoning board’s decision is broad enough to allow such decisions to be final as long as no discretion had been abused.  Although there may be underlying corruption, the Court did not find this to be an automatic abuse of discretion. 

Furthermore, the Court expanded their analysis to address whether such discretionary powers of the zoning variance decisions would preclude a person, who is an adjacent property owner, from maintaining a property interest in such a discretionary decision. Since the decision of a zoning board is exclusively at their own discretion, accordingly, it is clear, that a party cannot maintain a property interest in such a discretionary benefit.  Therefore, it was clear to the Court that the Residents lacked an actionable cognizable property interest right in this case. 

Though Residents argue that their own case is unlike the precedential cases because they were not challenges to denials of the Board’s approval.  Rather, they argue that their own claim was not based on any “discretionary” decision for the Zoning Board of Appeals rather to maintain the status quo.  The Court of Appeals, however, did not agree because there were no exact cases by which the Residents could cite to.  Furthermore, the Residents claimed that Ohio law that provides a right to appeal zoning ordinances by adjacent property owners creates an automatic property interest.  The Court found the right to appeal supported only legally sufficient standing to adjudicate the matter, not an actual property interest. 

The Residents’ proposed argument was that they had a cognizable protected property interest in existing zone classifications of nearby and/or neighboring properties. The Court held that there is no case law in the Sixth Circuit or the Ohio courts to support this notion. Therefore, the Court of Appeals affirmed the District Court’s decision and held that the Residents did not meet their burden of showing they had a protected property interest in perpetuating the status quo of 8383 Keister Road without the requested variances. 

Brooks v. Butler Cnty., Ohio, No. 21-4129, 2022 WL 2526601 (6th Cir. July 7, 2022)

This post was authored by Joseph Doria, Jacob. D. Fuchsberg Touro Law Center

A NC Appeals Court overturned the trial court ruling that a digital billboard could not be built off a highway in Clemmons, North Carolina. The court determined, on appeal, that the city’s zoning ordinance allowed for the construction of the company’s sign. Also, the billboard was not considered a “Moving and flashing sign” which was prohibited by the City. Finally, the billboard was not an “electronic message board” which was also restricted by the city.

The City ordinance contained several provisions regarding signage, and each was intertwined with one another. A general provision permitted off-premises signs such as billboards in the location in question. However, a separate district regulation did not permit off site premises signs. An additional superseding sign specific ordinance does permit off-premises signs on that property. Additionally, moving or flashing signs are not allowed. A separate provision states that when there is a conflict between each provision the most restrictive one prevails.

Plaintiff, Visible Properties LLC, owns and operates an outdoor advertising company that builds digital billboards in North Carolina. In 2019 Visible applied for a permit to construct a 10’x30’ outdoor digital billboard. The billboard would not contain any flashing lights or images. Only static images that would change every six to eight seconds.

Defendants, The Village of Clemmons, rejected the permit determining that flashing or moving electronic message boards are not permitted.  In January of 2020 the board entered a written decision that rejected Visible’s application. This was affirmed by the trial court in December of 2020.

The appellate court focused on two prevailing principles in zoning law. “First, that we should strive to harmonize provisions and avoid conflicts whenever possible; and second, that we should construe ambiguous provisions in favor of the free use of property.” When applying these rules, the court first looked at the provision around moving and flashing signs. Clemmons argued that by switching images the sign is moving and will cause a flash. That it is different from the static text seen on digital signs that show temperature, time, or text. These signs change their image periodically and by doing so only move to reflect updated information. The court rejected this argument. The court referred to the dictionary definition of “Moving” which means “marked or capable of movement.” The court noted none of the adjectives identified the proposed billboard Visible planned on building. Also, that there is no discernible difference between the electronic signs (Temperature, Time, text display) the provision did allow for. Furthermore, the provision does allow for the electronic display of fuel prices. The court noted that the drafter of the provision clearly understood some electronic signs and that moving or flashing is not the same as the information of the sign changing over time.

Finally, the court turned to the meaning of “Electronic message boards” which was left undefined. The Village of Clemmons contended that a digital billboard and an electronic message board are the same. The Court rejected this argument. Throughout the ordinance a board that displays a message is referred to as a sign or a billboard. As a result, if the drafters intended to restrict digital signs or billboards they would have used those terms. The drafter would not have written “Message boards” in the provision. Finally, the court looked at the ordinary usage of the word “billboard” and noted that when people drive by a sign displayed on the highway it is not commonly referred to as a message board.

The court concluded that the holding does not restrict other municipalities from restricting digital signs, like the one proposed by the plaintiff. The Court emphasized the importance for drafters of zoning regulations that restrict property use that there is a responsibility to provide clear rules that property owners can rely on. The zoning system is not one to be, “A system of murky, ambiguous rules where the permitted uses of property ultimately depend on the interpretive discretion of government bureaucrats.” The provision used in The Village of Clemmons was ambiguous, unclear, and created confusion when attempting to interpret it.

Visible Properties, LLC v. The Village of Clemmons, 2022 WL 3031723, 2022-NCCOA-529 (2022)

This post was authored by Amy Lavine, Esq.

The Third Circuit Court of Appeals dismissed a copyright infringement lawsuit brought by a planning consultant over the use of land use plans it worked on under a disputed municipal contract. The court concluded that the city retained a valid license to use the land use plans because the planning consultant never terminated the license in accordance with the notice and cure procedures required under the consulting contract.

The City of Harrisburg, Pennsylvania hired a private planning consultant in 2015 to redesign its zoning and land use planning. The consulting contract gave the city a nonexclusive license to use the planning consultant’s work product, “provided that the [city] substantially performs its obligations.” The contract also provided that this license would be terminated if the planning consultant terminated the contract, and specified that the planning consultant could terminate the contract for cause and after providing the city with notice and a chance to cure. Unlike the planning consultant, the city could terminate the contract with or without cause, and the contract also stated that termination by the city would not affect its license to use the planning consultant’s work product. As the court observed: “That arrangement makes sense. If the city terminated the contract, doing so would not return the city to square one. It would have to pay for the land-use plans, and it would get to keep using them in its project. For the city to lose its right to use the plans, it would not only have to stop paying (a material breach), but also get the required notice and chance to cure.”

The planning consultant stopped providing services to the city after a payment dispute arose in 2016, but it never complied with the notice and cure requirements in the contract’s termination provision. Instead, it sued the city for copyright infringement after the city retained another planning consultant in 2019 to continue working on the land use plans. The district court held that the city was entitled to continue using the plans under the license provisions in the consulting contract, however, and therefore dismissed the planning consultant’s copyright claims. The planning consultant then sought to amend its complaint to add three novel arguments: first, that it “couldn’t” terminate the city’s license; second, that it “didn’t have to” terminate the city’s license; and third, that it could, alternatively, “rescind” the city’s license. Because it still failed to allege that it had actually terminated the contract in compliance with the notice and cure requirements, however, the district court rejected the planning consultant’s proposed amendments. On appeal, the Third Circuit agreed that the proposed amendments were futile and accordingly affirmed the denial of leave to amend the complaint.

The court explained in its decision that the city never prevented the planning consultant from terminating the license pursuant to the contract’s required termination procedures, rejecting the planning consultant’s argument that it was “robbed of the opportunity to terminate… by the city’s self-serving, dishonest machinations.” The court wasn’t persuaded that the city had “strung the firm along while secretly planning not to continue the deal,” and even if that were the case, the planning consultant had “discovered the ruse” and so it could have chosen to terminate the license rather than alleging that the city was infringing its copyright.

The court also concluded that the city hadn’t terminated its license by terminating the contract, rejecting the planning consultant’s argument that the city’s license was ended when the city “relieved [the firm] of the duty to take steps to terminate the [contract].” While the planning consultant contended that “[a] contract can only be terminated once,” the court explained that this was irrelevant because “terminating a contract excuses future performance but does not undo past performance.” And as provided in the contract, the planning consultant had “granted the city the license when it executed the contract, so its continued existence was not a matter of future performance. Even after the city ended the contract, the firm needed to take extra steps to end the license.”

Finally, the court also rejected the planning consultant’s claim that it had a right to rescind the city’s license without following the contract’s termination procedures. While a right to rescind can sometimes arise due to the material breach of a contract, the court found that this was “beside the point” in this case because “the parties contracted for a specific procedure” and the planning consultant could have terminated the license by simply complying with that procedure.

Office for Planning & Architecture, Inc. v. City of Harrisburg, 2022 WL 4243951 (3d Cir 9/15/22).

This post was authored by Amy Lavine, Esq.

The Third Circuit Court of Appeals upheld New Jersey’s Cemetery Act in a decision issued in April 2022, reversing a district court decision that had found that the law was void for vagueness.

The New Jersey Cemetery Act requires municipal consent for the creation of new cemeteries. As discussed in a previous Law of the Land post, Rosedale and Rosehill Cemetery Association argued successfully at the district court that this consent requirement was facially unconstitutional because it failed to include any standards for granting or denying such consents. The Third Circuit found that the district court’s decision was in error, however, because Rosedale failed to allege that it had any protected property interest at stake. As the court explained: “Rosedale’s entire theory rests upon the unlimited grant of discretion in the Cemetery Act, which permits cemetery use contingent upon municipality approval. However, such ‘a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.'”

Additionally, the court observed that the void for vagueness doctrine was inapplicable in this case because the Cemetery Act did not involve judicial or administrative discretion but instead delegated authority regarding cemetery siting to the “policymaking bodies of local municipalities.” The court noted that this was in accord with Sixth Circuit precedent, which has held that the void for vagueness rule “does not apply to [the] fundamental delegation of authority to [a] legislative body.” Rosedale & Rosehill Cemetery Ass’n v. Twp. of Readington, 2022 U.S. App. LEXIS 8906, 2022 WL 996420 (3d Cir 4/4/22).

This post was authored by Matthew Loescher, Esq.

April Elizabeth Mancini owned the Jah Healing Kemetic Temple of the Divine Church, Inc., whose adherents consume cannabis blessed by Church pastors as “sacrament.” The County of San Bernardino determined that the Church routinely sold cannabis products in violation of a County ordinance prohibiting commercial cannabis activity on unincorporated County land. The trial court found that the Church was operating an illegal cannabis dispensary and issued a permanent injunction against Mancini and the Church, among other relief. Mancini and the Church appealed.

Appellants first argued that the County’s ordinance banning commercial cannabis activities was preempted by state law legalizing the sale of cannabis. While permitting the use of marijuana, California law ‘does not thereby mandate that local governments authorize, allow, or accommodate the existence of’ marijuana dispensaries,” the court found that California law “does not limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate marijuana dispensaries or to completely prohibit their establishment or operation.” The court therefore held that the County’s ordinance was not preempted by state law.

Appellants next contention was that the County’s ordinance and the trial court’s injunction enforcing it violated RLUIPA. Appellants could show that the County ordinance imposed a substantial burden on their religious exercise, however, as the Church’s only relevant religious practice was the use of blessed cannabis products, which its adherents allegedly considered to be their sacrament. The County ordinance, however, did not prohibit appellants from possessing, blessing, or consuming cannabis products. Instead, the ordinance banned commercial cannabis activity, including selling and dispensing cannabis, whether for profit or otherwise. As appellants acknowledged the provisioning of cannabis was not a religious activity of the Church, its pastors, or its congregants. – appellants conceded that the County could prohibit the Church from selling cannabis or giving it out as part of a quid pro quo donation. Accordingly, the ordinance did not impose a substantial burden on their religious exercise.

Appellants next alleged that the County ordinance violated article I, section 4 of the California Constitution, which states: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.” Here, the evidence demonstrated that the County enforced the ordinance against appellants only because the County believed that appellants had violated the ordinance by running an illegal commercial cannabis dispensary. Nothing in the record implied that the County sought to persecute the Church or discriminate against its members for their religious beliefs. The court therefore held appellants failed to show that the County enforced the ordinance against the Church for discriminatory reasons, and thus failed to show that the County violated section 4.

 As a final issue, appellants argued the ordinance did not apply to the Church’s not-for-profit “quid pro quo” scheme where members receive sacrament for a tithe or donation because the ordinance does not expressly cover quid pro quo donations. The court rejected this contention as the ordinance prohibited the dispensing and distribution of cannabis, “whether or not for profit.” As such, by its plain terms, the ordinance covered the Church’s quid pro quo scheme.

County of San Bernardino v Mancini, 2022 WL 52424419 (CA App. 9/13/2022)

This post was authored by Sonia Canales, Jacob D. Fuchsberg Touro Law Center

The appellants, The Homeless Charity, Sage Lewis LLC, and Sage Lewis, submitted a request to the Akron City Council in September 2018 for a conditional use variance to allow a campground tent community for the homeless on property owned by Sage Lewis LLC. Subsequently, it was denied and the appellants were issued a Notice of Violation/Order due to a zoning ordinance violation from tents the remained on the property. Prior to the conditional use variance for the existence of a campground, tents for homeless individuals were already established on the aforementioned property. Their reasoning for the conditional use variance was to provide an “emergency, potentially lifesaving shelter to the most destitute members of the community.”

The appellants then sought an appeal of the denied request from the Akron Board of Zoning Appeals (henceforth BZA). The BZA held a public hearing in which the Akron City Planning Commission openly and obviously opposed the variance and continued to state that BZA did not hold the authority to even grant the variance. Ultimately, BZA upheld the City’s decision and also denied the variance request.

Further litigation ensued when the appellants submitted an administrative appeal in the Summit County Court of Common Pleas (henceforth trial court) to allow additional evidence and discovery to support their request for a campground of tents and to prove the unconstitutionality of the zoning ordinance. Trial court granted discovery solely to support the constitutionality arguments. Once more, the appellants’ variance request was denied because the trial court found that only Sage Lewis LLC held standing on the constitutional arguments because he was the property owner of the plot of land that was in at the core of this battle.

The appellants sought an appeal of the trial’s court decision in Ohio’s Court of Appeals, 9^th Judicial District. They asserted that the trial court erred in holding that appellants Sage Lewis and HC lacked standing, in upholding the variance denial, and in in holding that appellants failed to state as applied substantive due process claims under the federal and state constitutions. All three errors of assignments were overruled and the Court of Appeals affirmed the trial court’s decision.

After reviewing the zoning codes in question, such as 153.240, which noted the use and prohibitions of each district, the Court of Appeals found that the structure of a campground was not prohibited since it was not listed a prohibition in the 24 different circumstances and structures that could apply. Thus, since campground was not a building that was prohibited, they followed with an analysis on whether the use of the campground was in general keeping and appropriate to the authorized uses of the district it was in.

Sage Lewis LLC was located in Class U1 District, which was residential with one family homes, two family homes in certain areas within the district, and a few public spaces such as schools and museums. The trial court determined they had a preponderance of reliable, probative, and substantial evidence as a matter of law that the use of the property was prohibited because of the character of use. The court determined that tents for homeless people in a residential neighborhood was an eyesore when seen adjacent to the apartment building. The character use was also targeted at the homeless people in the neighborhood as that also was not a character of use in accordance to the zoning ordinance. The tents would supersede how many people may reside on a lot of land. Despite the appellants’ pleas about limiting the number of tents and keeping them out of sight, the appeals court determined that there was a preponderance of evidence that the tent campground was not an appropriate use in District U1.

The arguments of constitutionality also revolved around the aforementioned rationale. The Court of Appeals asked “whether the ordinance, in prescribing a landowner’s proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by municipality.” They determined the city of Akron did due to the presumed and unconstitutional use described above. The appellants originally argued that based on Ohio’s constitution, they were being deprived of a property interest in sheltering homeless individuals in tents on their property in the past and intended to the same in the future for the same purpose. However, one does not have that interest if the use was not granted in accordance to the zoning codes.

The Court of Appeals also disagreed with the appellants’ right to rescue argument which came about from a 7^th circuit case. The 7^th Circuit did not recognize a constitutional right to be rescued or to rescue under the 14^th Amendment but it acknowledged that arbitrary state action that may unconstitutionally deprive an individual of the right to life for purposes of the 14^th Amendment. The Court found that there was no deprivation of the appellants’ right to rescue nor the homeless individuals’ right to being rescued as that has no bearing on use and second, they found it to be arbitrary in the argument. Due to the overruled arguments regarding use and constitutionality of the zoning ordinance, the Court of Appeals immediately discarded the holding that appellants Sage Lewis and HC lacked standing and marked it moot.

 Homeless Charity v. Akron Bd. of Zoning Appeals, 2022-Ohio-1578 (2022)