This post was authored by Matthew Loescher, Esq.

Victory Temple was a religious congregation affiliated with the Redeemed Christian Church of God, an evangelical church founded in Nigeria. As the Bowie facility had an occupancy limit of only about 500, Victory Temple sought a larger property on which to locate and build a new church home for its expanding congregation. In February 2018, Victory Temple purchased a second Bowie property at 14403 Mount Oak Road, upon which Victory Temple intended to build a church facility with a seating capacity of up to 2,000 and a parking lot with about 750 spaces. Victory Temple submitted to the County DPIE its application for a water and sewer category change from Category 5 to Category 4. The County Council ultimately adopted the Transportation Committee’s recommendation to deny the Application. Following this, Victory Temple filed its Complaint against the County, alleging that the denial of the Application violated RLUIPA’s substantial burden provision.

The court first noted that, when the County Council and other County entities evaluated the Application, they made individualized assessments of Victory Temple’s proposed uses of the property. The district court ruled that the County’s denial of the Application constituted a substantial burden. Although there was evidence to undermine the County’s position that its denial of the Application was motivated by traffic safety concerns, the court accepted that the County’s asserted interest in traffic safety was the interest the County relied on when it denied the Application. Nevertheless, the County failed to present any trial evidence demonstrating that it considered any less restrictive means before denying the Application. Specifically, the County never sought to show at trial that it considered alternatives, such as roadway improvements or additional road signs, before denying the Application. Accordingly, the court agreed with the district court that the County’s denial of the Application failed strict scrutiny review. Thus, the court did not abuse its discretion in granting Victory Temple the injunctive relief that was appealed from.

The Redeemed Christian Church of God (Victory Temple) Bowie, MD v Prince George’s County, 17 F. 4th 479 (11/3/2021)

This post was authored by Cameron Balcarcel, Touro College Jacob D. Fuchsberg Law Center

The plaintiffs, Timothy Hogue and Dering Point Associates, LLC brought an action against the Village of Dering Harbor, seeking a judgment to declare that Local No. 1 of 2018 null and void. Local No. 1 of 2018 of the Village of Dering Harbor amended the local village code and removed the Architectural Review Board’s two-step approval permit process for the placement of hedges. The plaintiffs brought their original action against the Village of Dering in 2020, the lower court granted the Village’s motion  to  dismiss,  and  the  plaintiffs  appealed.

On  appeal,  the  court  found  that  the  Village  defendants  had  presented  a  prima  facie  case and  that  plaintiffs  lacked  standing  to  bring  this  action.  The court  found  that  the  Village demonstrated that the zoning was consistent with the Village’s comprehensive plan. Therefore, the  Plaintiffs  had  a  heavy  burden  to  rebut  the  strong  presumption  that  the  ordinance  was  valid. Plaintiffs did  not  display  that  they  sustained  any  special  damage  different  from  the  general community and plaintiffs also failed to argue a triable issue of fact.

The court concluded that  the  Village  of  Dering  was  entitled  to  judgment  as  a matter of law because the placement of hedges were conceived by the Village’s comprehensive plan and the plaintiffs’ contentions were meritless without a triable issue of fact. The court granted the defendant’s summary judgment dismissing this action.

For a more detailed discussion of this case visit: https://www.jdsupra.com/legalnews/living-fences-in-dering-harbor-1495476/

Hogue v Village of Dering Harbor 2021, WL 5348829 (NYAD 2 Dept. 11/17/21)

This post was authored by Fernando Ramos, Touro College Jacob D. Fuchsberg Law Center

Clarksville Ministries, LLC (“CM”), Plaintiff, filed an Emergency Motion for Temporary Restraining Order (“TRO”) against Defendants Town of Clarksville, Indiana, Town of Clarksville Building Department, and Rick Barr, in his Official Capacity as the Town of Clarksville’s Building Commissioner (collectively, the “Town”). CM is seeking to open an adult store that offers various retail items including sexually themed, but non-obscene, books, magazines, videos, and other products for off-site use. CM applied to receive a license to open this establishment on August 13, 2021 and had yet to receive permission to commence businessfrom the Town and filed the TRO requesting immediate relief.

CM argued that the Town’s response to their license application disregards the Town of Clarksville Zoning Ordinance (“CZO”) Subsection 60-80(A) which states: “Upon the filing of a completed application for an Adult Business license [“ABL”] or an Adult Business employee license [“ABEL”], the Enforcement Officer shall issue a temporary license to the applicant, which temporary license shall expire upon the final decision of the Enforcement Officer to deny or grant the license. Within twenty (20) days after the receipt of a completed application, the Enforcement Officer shall either issue a license, or issue a written notice of intent to deny a license to the applicant.” However, Subsection (B) provides, in relevant part, that (Filing No. 1-3 at 7) The application shall be accompanied by a diagram of the premises, showing a plan thereof, specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons will not be permitted…. Internal dimensions of all areas of the interior of the premises shall be noted….

Accordingly, CM requested that the Court immediately order the Town to issue a temporary ABL and also issue employee Timothy Miller a temporary ABEL. CM also noted that the Town was seeking to amend its zoning ordinances to permanently prevent CM’s business operations before it could even open.  The Town argued that CM had yet to submit a complete application, specifically it failed to provide the dimensions of two areas colored in green on a floorplan it provided to the Town, and also that CM did not specify the location of all overhead lighting fixtures. The Town also stated that Miller’s ABEL application is incomplete because it is missing a picture of Miller’s drivers license and his photograph. The Town argued, for the above reasons, CM has no standing to bring this suit, the dispute was not ripe and none of the proffered grounds justify a TRO.

After a review of the evidence and arguments, the Court granted CM’s motion and orders: 1. “CM a temporary ABL immediately upon submission of an updated diagram showing (1) the internal dimensions of the rooms contained in the green blocks at issue and (2) all overhead lighting fixtures; and 2. Miller a temporary ABEL immediately upon submission of (1) a copy of his drivers licenses and (2) his photograph. “

Clarksville Ministries, LLC v Town of Clarksville, Indiana, 2021 WL 4898204 (S.D. IN 9/7/2021)

This post was authored by Jacqueline Rupelli, Touro College Jacob D. Fuchsberg Law Center

Plaintiff Old Tennent Cemetery Association sought a preliminary and final site approval plan for an addition that would be used as a crematorium on land already used for burial plots.  During the Planning Board’s hearing on the application, a non-for-profit group, “Stop the Manalapan Crematorium” (SMC) spoke and argued that the Planning board did not have jurisdiction to approve variances for expansion of nonconforming uses. SMC argued in favor of keeping the neighborhood residential in which it is already zoned for. The Plaintiff argued that it already has a pre-existing nonconforming use status, and a crematorium is nothing more than an accessory use.  Plaintiff argues that the site plan application is all that is required and therefore the Planning board does have jurisdiction on this matter.

The Planning Board’s Attorney, advised the planning board that the Zoning board has the authority to decide on matters regarding preexisting nonconforming use.  Additionally, the Attorney explained the Planning Board does not have jurisdiction because the “nonconforming use status” was never certified by the Zoning Board. This resulted in the Planning board denying the initial site approval plan. The Plaintiff consequently appealed.

The Court concluded that Old Tennent Cemetery does have a nonconforming use, but that adding a crematory would be an expansion of this non-conforming use.  The main issue in this case revolves around the Plaintiff’s, “Preexisting non-conforming use” status. Ultimately, it was decided that the Zoning board has the authority here.  A crematorium is not permitted explicitly by any ordinance, they are considered accessories and therefore variances are required. It was determined a pre-existing non-conforming use existed in this case, but a crematorium is an accessory use that the Zoning Board of Adjustment has exclusive jurisdiction over.

Old Tennent Cemetery Ass’n v. Twp. Of Manalapan Planning Bd., A-2961-19 (NJ Sup. 10/20/2021)

This post was authored by Amanda Ritchie, Touro College Jacob D. Fuchsberg Law Center

This past March, the Arizona Court of Appeals, affirmed the summary judgment granted to Florence Copper Inc., by the Superior Court of Maricopa County, declaring that the separation of powers doctrine did not compel the trial court to defer to the Town of Florence’s rezoning decision; the rezoning ordinance and amendment to development plan did not alter the Florence Copper Inc.’s vested right, under development agreement, to operate copper mine on property.

In 2000, a real estate developer named W. Harrison Merrill bought over a thousand acres of unincorporated land near the Town of Florence from a mining company, along with mining infrastructure and mineral rights to an adjacent leased parcel. The intention was to first extract the copper with a mining partner and then develop Merrill Ranch on the Property. In 2002, the Town expressed interest in annexing the Property but pursuant to Arizona law, they required Merrill’s consent.To ensure flexibility in development,Merrill entered a 35-year agreement in November 2003, formalized in a Pre-Annexation Development Agreement and a Planned Unit Development Plan. The following year both were approved by the Town Council, adopted a corresponding amendment to the zoning map and filed with the recorder’s office pursuant to Arizona Law A.R.S.§9-500.05(c).

The Development Agreement preserved Merrill’s vested right to develop and use the Property in accordance with the Agreement and the 2003 Plan, and directed that associated burdens and benefits would run with the land for 35 years. Moreover, to advance the vested rights, the Agreement barred the Town from imposing zoning ordinances or land use regulations that would change or otherwise impact the development or use of the Property as set forth in the Plan. The Property was subject to a non-conforming historical use of copper mining called the BHP Copper Mine Overlay and the 2003 Plan ensured the Mine Overlay would be preserved until the mine was “closed” aka if not used for more than 180 days. However, because Merrill did not immediately intend to mine, the 2003 Plan expressly excepted copper mining from that requirement. Finally and most importantly, the Development Agreement specified that any amendment to the Agreement must be in writing, executed by both parties and filed within ten days with the Pinal County Recorder pursuant to Arizona Law A.R.S.§9-471(A)(4).

In 2007, Merrill and the Town agreed to a new Development Agreement which, among other things, rezoned the Mining Parcel from light-industrial to residential. The Town Council then passed a rezoning ordinance, amending the Town’s zoning map to conform to that Plan. It is important to note that the new Plan was not incorporated into the Development Agreement or recorded with the county recorder—unlike the 2003 Plan—and only appears in the Town’s zoning book. In their negotiations, neither Merrill nor the Town mentioned mining rights. The Rezoning Ordinance did not identify mining as a non-conforming use or purport to amend or supersede the Development Agreement.

In 2008, following the financial crisis, Merrill lost the Property in foreclosure and Florence Copper’s parent company purchased the Mining Parcel. Then in 2010, the Town decided they no longer supported the mine and ultimately pursued litigation against Florence Copper Inc.

The Town and Merrill voluntarily entered into a 35-year binding development agreement so their rezoning decision to prohibit mining on the land subject to pre-annexation development agreement which granted parcel owner and his successors a vested right to operate a copper mine is contradictory. They could have negotiated further concessions from Merrill if they so desired in 2007. Moreover, local governments do not possess absolute power over zoning decisions; those decisions are subject to judicial review and the Superior Court enforced the plain terms of development agreement, which itself was a product of legislative action.

The rezoning ordinance and amendment to development plan did not alter owner’s vested right under pre-annexation development agreement, as successor to developer, to operate copper mine on property; agreement required that amendments to agreement be in writing, signed by the parties, and filed with the county recorder within ten days, those events did not occur, neither the amended plan nor the rezoning ordinance purported to amend the agreement, and there was no indication that the developer intended to amend or abandon the right to mine when negotiating with town to rezone the property. The record includes substantial evidence showing that Merrill never intended to amend or abandon his right to mine on the Property when he requested and then renegotiated the zoning change in 2007. He wanted to maximize the value of his investment, including the residential development rights and the mining rights. Moreover, the Town offered no evidence showing that Merrill intended to abandon his valuable mining rights.

The Court’s decision supports developer’s demand’s for more certainty and less risk when entering into development agreements with cities and towns. A city or town is able to set definite conditions that govern the process of development, thus limiting the potential negative impacts from the development on neighboring land and the community and here the Town negotiated and mutually agreed to an agreement that provided the owner and its successors vested rights to mine that ran with the land. An attempt to violate the terms set forth would not only be a breach of contract but an overreach by the Town that could be considered an illegal regulatory taking.

Town of Florence v. Florence Copper Inc., 251 Ariz. 464, 493 P.3d 891 (Ct. App. 2021), as amended (Mar. 24, 2021)

This post was authored by Aron Pirov, Touro College Jacob D. Fuchsberg Law Center

Congregation Rabbinical College of Tartikov, Inc. (Tartikov) is a New York religious corporation formed to establish the Rabbinical College in Village of Pomona (NY), which includes a housing component for students and their families. To this end, in 2004 Tartikov purchased a 100-acre property in the Village of Pomona. However, the zoning ordinance of Village of Pomona prohibited the construction of non-accredited educational institutions and housing for students with families on this property. Tartikov sought a preliminary injunction against the Village and Board of Trustees from enforcing zoning ordinances that prohibit Tartikov from building the Rabbinical College alleging that these ordinances are unlawful under the Religious Land Use and Institutionalized Persons Act of 2000, the Fair Housing Act and the New York State Constitution.  The federal district court found that in order to review any claims the plaintiffs must prove that their request to build the Rabbinical College was denied by the Village of Pomona by a “final decision.” A final decision requires that a development plan must be submitted, considered, and rejected by the governmental entity. Even when the plaintiff applies for approval of a subdivision plan and is rejected, a claim is not ripe until plaintiff also seeks variances that would allow it to develop the property. If, however, plaintiffs can show that the Village of Pomona would not entertain any of their applications, then the plaintiffs do not have to show “final decision” for the purposes of ripeness. Based on facts of the case, the Court concluded that plaintiffs never submitted any applications seeking approval to build Rabbinical College. Therefore, plaintiff’s application to build the Rabbinical College was never denied and there were no decisions made on this case, let alone “final decision.” Therefore, the Court dismissed the petition.  

Congregation Rabbinical College of Tartikov, Inc. v Village of Pomona, 2021 WL 4392489 (SDNY 9/24/2021)

This post was authored by Jakor Riddick, Touro College Jacob D. Fuchsberg Law Center

 In 2011, Thomas and Julia Willan bought land in Dane County, Wisconsin. The land included a house and a dairy barn. They spent $75,000 restoring the barn into a space for their small business. After using the barn for their business for many years, they considered renting it out for group gatherings. In 2019, the Dane County Board of Supervisors changed the zoning ordinance restricting the Willan’s to only use their property for residential purposes. The Willan’s objected to the ordinance sending emails to the Planning and Development Department. The zoning administrator for the county responded that they needed a conditional-use permit and advised them of the process to obtain one. Instead of following those procedures, the Willan’s requested a construction permit to make the necessary repairs for hosting events. The Willans’ communication with officials amounted to a request to be in a business zone and a permit to repair the barn. The county officials denied both requests at the final meeting because the Willan’s did not follow proper procedures and apply for a conditional-use permit.          

The Willans sued Dane County, claiming the rezoning decisions interfered with their ability to use their barn for business in violation of their rights under the Takings Clause. They also included claims for due process and equal protection violations. The district court entered judgment on the pleadings in favor of the county. The court concluded the claim was not ripe for adjudication as state administrative decisions are not final and they never applied for a variance or a conditional use permit for the property. On appeal, the Seventh Circuit court reviewed the Supreme Courts’ jurisprudence in the context of the Takings Clause. The claim was not ripe until the plaintiff received a final decision regarding the application and sought compensation through state procedures. A property owner should at least resort to the procedure for obtaining variances and obtain a conclusive determination by the commission to ripen the takings claim.

The county advised the Willans multiple times of the proper procedures required to obtain a conditional use permit. The communications and meetings with the Planning and Development Department officials were not the same as an application for a variance or conditional use. Although the officials denied their request at the meeting, the Willans should have applied for the conditional use permit as instructed. The Willans tried to amend their claim, but the court stated it would not survive dismissal again as the claim can only ripen when the appropriate procedures are complete.

Willan v Dane County, 2021 WL 4269922 (7th Cir. CA 9/20/2021)

This post was authored by Sebastian Perez, Jacob D. Fuchsberg Touro Law Center

The question on appeal was whether the zoning authority granted to the municipality permitted the use of a zoning device known as a planned development district. In 2016 the defendant filed an application with the zoning commission seeking the creation of a planned development district within a parcel of land consisting of about 121 acres. The parcel existed within a light industrial park zone for more than 50 years. The parcel had remained vacant except for one single-family home nearby owned by the plaintiffs. The commission held 6 public hearings related to this development where there was substantial public opposition regarding traffic, effects on nearby residential areas, and environmental impacts. The defendants modified their initial proposal and in 2017, the commission approved the application. The plaintiffs appealed to the trial court arguing that under the local statute, the municipality lacked the authority to create planned development districts, the proposed planned development district violates a uniformity requirement, and the commission’s decision resulted in an unlawful subdivision. The trial court disagreed with each of plaintiff’s claims and this appeal followed. Regarding the plaintiffs first argument, the court narrowed the question to whether the local statute authorized the city to create new zones. The court concluded that the statute permitted the creation of the planned development district. As to the plaintiff’s second argument, the court simplified the statute’s uniformity requirement to simply be a need for“equal treatment.” The court focused on two points here, the requirement did not require regulations governing adjacent zones to be consistent with one another and the requirement did not prohibit the commission from blending different types of uses within a planned development. The court concluded that the defendants were not in violation of the statute’s uniformity requirement. Lastly, the court performed a brief analysis of the plaintiff’s third argument. The court used the two requirements found in the statute’s clear language: the division of the land into three or more parts and for the sale or building development. The court concluded that there was no indication that the commission’s approval caused the alteration of any previously existing property line. The court affirmed the lower court’s judgment.

Tillman v. Planning & Zoning Comm’n, 2021 Conn. LEXIS 279 (CT 10/20/2021)         

This post was authored by Damion Jeenarine, Touro College Jacob D. Fuchsberg Law Center

Plaintiff, The Church at Jackson motioned for the court to remove the restrictions blocking it from building on its property for a religious assembly. Plaintiff’s motion results from Defendant Hinds County blocking the Church from using the land in an agricultural district. County officials contend religious institutions are permitted in agricultural districts if they obtain a Special Use Permit. However, after applying for the Special Use Permit, the County still did not approve the land use because Churches can promote urban development of the land. The purpose of the zoning restriction is to keep the agricultural district conservative. Nevertheless, the County does allow particular nonreligious assembly uses in its agricultural areas. Conversely, the Church claims that Hind’s County officials are violating the equal terms clause of the Constitution provided in the Religious Land Use and Institutionalized Person Act ( “RLUIPA”).

Obtaining the injunction requires Plaintiff to satisfy four elements. Specifically, the applicant must show its case can succeed on its face, that there is a substantial threat of irreparable harm if the injunction is not granted, that the threatened injury outweighs any harm that the injunction might cause to the Defendant and that the injunction will not disserve the public interest.

First, the Court analyzed the Plaintiff’s claim based on RLUIPA’s Equal Terms Clause – prohibiting the government from imposing a facially discriminatory ordinance. Plaintiff argues that the ordinance treats them on less than equal terms than other institutions. Specifically, the Church notes that the ordinance does not require a Special Use Permit for gymnasiums, recreation centers, and amusement parks. The Court found the Equal Terms clause of RLUIPA violated based on the facially discriminatory ordinance. As such, the burden of proof shifted to Defendant. Hind’s County contended that religious institutions are more likely to promote urban development and damage the agricultural district. Nevertheless, the Court declared Hind’s County failed to meet its obligation in its brief because it could not show how religious institutions promoted urban development.

The Court then discussed the second requirement in granting injunctive relief, whether the Church suffered a substantial threat of irreparable harm. The Court held that because the ordinance violates RLUIPA, it infringes on the Plaintiff’s constitutionally held rights.

After ruling on the second element, the court examined whether the injury outweighs any potential harm cast on Defendant. Hind’s County argued it has a legitimate interest to establish classifications for its districts. However, the Court does not entertain the County’s explanation, seemingly because the test here will not rely on a rational basis test. Religion is a suspect class, and therefore the County needs more than legitimate interest.

Finally, the Court held that upholding a Constitutional right is within the public interest. Therefore, the Court granted the injunction to the Church and noted as a matter of law that the ordinance treats religious assemblies on less than equal terms.

The Church at Jackson v. Hinds County, 2021 WL 4344886 (SD MS 9/23/2021)      

This post was authored by Maria P. Hirakis, Touro College Jacob D. Fuchsberg Law Center

The Florida Supreme Court set a new precedent in late September, rejecting two City of West Palm Beach residents’ claims that sought to mandate the City to enforce a zoning ordinance against a third party.  In the certified conflict case, the Court declined to allow for injunctive relief against the City, stating that the doctrine of separation of powers prevents it from exercising its judicial power over matters that are traditionally left to the Legislature.

Suspecting their neighbor, Miriam Galan, was running a group home in violation of a city zoning ordinance, Peter and Galina Haver, who lived in a city of West Palm Beach, filed a five-count lawsuit after their numerous complaints to the City’s code compliance division went unresolved. Several defendants were named in the suit, including Galan and two city zoning officials, but the Court’s review involved the claims against the City itself. The Haver’s sought two counts of injunctive relief requiring the City to investigate the purported group home, and if necessary, take action against Galan’s alleged zoning violation. Due to the City’s inaction, the Haver’s also sought a declaratory judgment that the city violating its own ordinance by refusing to act against Galan. The remaining two counts were for a writ of mandamus and a writ of certiorari. The Circuit Court dismissed the entire suit, and on appeal, the Fourth District Court of Appeal affirmed the dismissal of the mandamus and certiorari claims but reversed as to the claims for injunctive and declaratory relief.

In its dismissal of the entire suit, the trail court cited to the Third District’s decision in Detournay v. City of Coral Gables, 127 So. 3d 869 (Fla. 3d DCA 2013), which held that the doctrine of separation of powers prevented the court from overseeing a purely executive function such as a city’s “discretion to file, prosecute, abate, settle or voluntarily dismiss a building and zoning enforcement action.” While Detournay was directly on point, the Fourth District decided that it lacked binding precedent. Arguing that stare decisis must be followed, the Fourth District held that the Havers’ injunctive relief was “specifically permitted” by the Florida Supreme Court’s decision in Boucher v. Novotny, 102 So. 2d 123 (Fla. 1958). In an attempt to follow binding precedent, the Fourth Circuit ultimately misread Boucher according to the Florida Supreme Court. Unlike the Havers’ case, Boucher involved a cause of action between two private parties and was an issue of whether the complaining party properly plead special damages, affording it standing to sue. “There was no injunction for the Court to review.” From the dicta in Boucher, the Fourth District mistakenly garnered “a broad rule” which would afford a plaintiff injunctive relief “against a city without regard to its alleged role in the violation or the content of the injunction being sought,” so long as the plaintiff can establish special damages as a result of a zoning violation.

The Florida Supreme Court was clear in deciding Haver that Boucher was not on point and did not provide binding precedent for the Havers’ claim against the City. Interestingly, the Court noted that, in its broadest reading, Boucher “assumed the availability of injunctive relief against a city in some circumstances where the city violates its own zoning ordinance.” However, the Havers failed to allege any such violation. While there was no precedent which would allow the Court to authorize a claim for injunctive relief against a city, the Court addressed whether it should now approve such a remedy. Bringing the discussion back to the doctrine of separation of powers, the Court refused to approve such a remedy. Not only did the Havers base their stare decisis argument on a case that was wrongly interpreted, but they failed to allege that the City acted illegally. Nonetheless, the judicial remedy sought by the Havers, if exercised, would “so exceed current limits on the exercise of judicial power.” The Court reasoned that building and zoning enforcement action is a purely executive function that the judiciary has no authority to oversee. Any such expansion of the judiciary’s authority would have to be expressly “authorized by the Legislature or by a city’s own ordinance.”

Ultimately, the Court remanded the case with instructions to have the claims against the City for injunctive and declaratory relief dismissed. Generally, municipalities have complete discretion over their regulatory authority and the courts will give deference to the municipality’s decisions, so long as they are not unreasonable or onerous.

City of West Palm Beach, Inc. v. Haver, 2021 WL 4467768 (Fla. 10/30/2021)