This post was authored by Amy Lavine, Esq.

The petitioner in Matter of Khan v. Annucci was convicted of sexual abuse and subject to the Sexual Assault Reform Act (“SARA”) during a period of post-release supervision. The law prohibited him from knowingly coming within 1,000 feet of a school, and prior to his release his wife moved into a SARA-compliant apartment in Brooklyn. The petitioner lived there for several years, but in 2018 he was directed to move to a new residence after a charter school leased space within 1,000 feet of the apartment. He then commenced this litigation. The court found that SARA’s school-grounds requirement applied equally to sex offenders serving periods of postrelease supervision beyond the maximum date of their release from prison, as it did to those “on parole or conditionally released.” The court further held the SARA school-grounds requirement did not violate substantive due process because it was “rationally related to the legitimate purpose of protecting children from the risk of recidivism.”

Matter of Khan v Annucci, 2020 NY Slip Op 04946 (NY App Div 2d Dept 9/16/20)

This summary is reposted with permission from the RLUIPA Defense Blog.

The U.S. Court of Appeals for the First Circuit recently found in favor of the Town of Pembroke, New Hampshire regarding the Town’s denial of an application for an electronic sign permit for religious messages.  The Town’s Zoning Board of Adjustment (Board) denied the permit because it believed the sign would “detract from the rural character of the Route 3 corridor” and noted the Town’s interest in maintaining its “quaint little New England village” aesthetic.  Signs for Jesus and Hillside Baptist Church (collectively, the Church) sued the Town after the Board denied a permit to install an electronic sign on Hillside Baptist Church’s property which would transmit messages provided by Signs for Jesus.  According to the Church, the denial of the permit and the Town’s local sign code violated the First Amendment to the U.S. Constitution, RLUIPA’s equal terms and substantial burden provisions, and state law.  The First Circuit did not agree.  It affirmed the District Court’s decision granting summary judgment to the Town. 

The Church’s RLUIPA equal terms claim failed because the Church could not identify a similarly situated secular comparator.  It contended that a public school, Pembroke Academy, and the New Hampshire Department of Transportation (NHDOT) were comparators because they both had electronic signs in the same zoning district as the Church.  The First Circuit concluded otherwise.  The public school and NHDOT were governmental land uses regulated by the state.  The Town had no power to regulate land uses owned or occupied by the state or school district, so the public school and NHDOT were not valid comparators.  The Court found the Church’s equal protection claim failed for similar reasons.

The Church’s substantial burden claim under RLUIPA fared no better.  The First Circuit reiterated the three factors it considers when analyzing substantial burden claims: (a) whether the regulation at issue appears to target religion based on hostility against religion; (b) whether the regulation was imposed on the religious institution arbitrarily, capriciously or unlawfully; and (c) whether local regulators have subjected the religious organization to a process that may appear neutral on its face but in practice is designed to reach a predetermined outcome contrary to the group’s requests.

The Church relied on the third factor and argued that the Board prejudged the application before actually denying it at the hearing.  It argued that its application was prejudged because some members of the Board colluded to deny the application after they met with an attorney in advance of the hearing to discuss the Church’s application.  At this meeting, the attorney provided the Board members with a draft motion to deny the application but did not provide an equivalent draft of a motion for approval.  However, a member of the Board testified that the purpose of drafting the motion to deny was to ensure that the Board “knew the motion that we had to make if we were going to deny,” and that he “didn’t know whether we were going to approve or deny [the request] until the end of the meeting.”  There was also evidence that the Board consulted with the lawyer because the Church hired “expensive counsel” who had raised issues of federal law.  The First Circuit sided with the Town: “[T]he fact that the Board had counsel ready is not a basis on which a jury could conclude that the Board improperly prejudged the decision.”  The reason that there was only a draft motion for denial was because a motion for approval would have been simple to draft.  By contrast, a draft motion for denial required the Board to state the reasons for the denial.

The First Circuit also found that provisions of the Town’s sign ordinance did not violate free speech protections.  It was not persuaded by the Church’s contention that certain elements of the sign ordinance were content-based, including an exemption for government signage.  The Church also argued that restricting electronic signs to just one zoning district reflected a preference for commercial speech and was therefore content-based.  The Court disagreed.  It concluded that there was nothing to support the Church’s argument that locational rules imposed on churches were a pretext for the Town to regulate the content of speech with respect to the use of electronic signs.  The Town’s sign code provisions satisfied intermediate scruinty.  The Court emphasized the Town’s interest in maintaining its “quaint little New England village” aesthetic.  Finally, the court was not convinced that the sign ordinance vested unbridled discretion in the Town to determine which signs are and are not permitted without narrow, objective and definite criteria.

The decision in Signs for Jesus v. Town of Pembroke (1st Cir. 2020) is available here: https://www.rluipa-defense.com/wp-content/uploads/sites/9/2020/10/Signs_for_Jesus_et_al_v._Pemb_33-002.pdf

This post was authored by Amy Lavine, Esq.

A New York appellate court held in Matter of McCrory v. Village of Mamaroneck Bd. of Trustees that members of the public who claimed to have been excluded from municipal meetings had standing under the Open Meetings Law and were not required to demonstrate any additional “personal injury” to prove their aggrievement.

The case was brought by residents of the Village of Mamaroneck who alleged that they were unlawfully excluded from a meeting of the village board due to its failure to comply with requirements for notice, executive session, and the recording of meeting minutes. The trial court dismissed the petition on the basis of standing, reasoning that “being a member of the general public, a taxpayer, or resident of the municipality, in and of itself, is insufficient to confer standing to raise an alleged Open Meetings Law violation.”

The Appellate Division, Second Department reversed the trial court’s decision on appeal, emphasizing the broad scope and intent of the Open Meetings Law to ensure “that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.” The court also noted the relevant text of the Open Meetings Law, which states that “any aggrieved person shall have standing….”

While the concept of “aggrievement” has been thoroughly addressed in “a wide spectrum of cases,” the court acknowledged that “case law on the issue of who has standing… to enforce the provisions of the Open Meetings Law is sparse.” The court was nevertheless able to discern from previous cases that aggrievement under the Open Meetings Law contemplates an injury that is inherently public in nature. InMatter of Friends of Pine Bush v Planning Bd. of City of Albany, for example, the court refused to dismiss an Open Meetings Law challenge for lack of standing because “[a]s residents of the city, the individual petitioners are persons aggrieved by a decision of the planning board….” Another case, Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., recognized that a member of the public who was allegedly excluded from a meeting was within the “zone of interest” protected by the Open Meetings Law and was sufficiently aggrieved to establish standing.

Instead of relying on cases decided under the Open Meetings Law, the trial court focused on the “injury in fact” standard applied in land use cases, which requires petitioners to allege a direct injury distinct from that of the public at large to establish aggrievement. But as the appellate court explained, the overriding purpose and intent of the Open Meetings Law “dictate[s] that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting.” The trial court’s analysis was counterintuitive and excessively restrictive, the court concluded, and it “would undermine, erode, and emasculate the stated objective of this statute, which was designed to benefit the citizens of this state and the general commonweal, assure the public’s right to be informed, and prevent secrecy by governmental bodies.”

Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 2020 NY Slip Op 00864 (NY App Div 2d Dept 2/5/20).

This post was authored by Amy Lavine, Esq.

A lawsuit seeking to compel town officials to direct the removal of a paved parking area was dismissed as untimely in a recent appellate court decision from New York. The proceeding was commenced by residential property owners in the Town of Guilderland, who objected to the installation of a small parking lot on an adjoining parcel. The neighbors completed work on this parking lot in 2015, however, and the record showed that the petitioners became aware of the town’s approval in 2015 as well. Under Article 78, a four month statute of limitations applied to challenge the town’s determination, and the petitioners failed to set forth any basis for tolling the statute of limitations. Accordingly, the petitioners’ claims were time-barred in October 2018 when they finally commenced this litigation.

Matter of Duffy v Town of Guilderland, 2020 NY Slip Op 05108 (NY App Div 3d Dept September 24, 2020)

This post was authored by Da Hyung Sun, Touro Law Center

In 2016, developers submitted applications to modify an existing site plan to allow the construction of four towers. The City Planning Commission chair determined that the proposed modification did not require a waiver or a special permit. Therefore, the applications were also not subject to ULURP. They also claimed that the State Environmental Quality reviews Act (SEQRA), the City Environmental Quality Review (CEQR), and the Final Environmental Impact Statement (FEIS) review suggested that the proposed application would have “significant adverse impacts.” As a result, the FEIS recommended mitigation measures including the establishment of two new public open spaces, improvement to existing parks, implementation of traffic signal timing and other traffic adjustment measures, and payments for additional public elementary school and child care seats. The City Planning Council then voted seven to three to adopt the FEIS and to approve the developers’ applications.

The Borough President and the City Council appealed the decision of the Planning Commission. The lower court granted the petition and required the applications to be subject to the ULURP. The appellate court reversed.

The Appellate Court held that 1) the developers were not required to seek a special permit for the project, and 2) the city rule requiring the determination of whether the project would alter “conditions or major elements of a site plan” did not apply. The court held that since the applications did not conflict with the zoning requirements, the CPC’s approval of the application is rational, was not contrary to any laws, and was not subject to the Uniform Land Use Review Procedure (ULURP).  

In re Council of the City of New York, et al., v. Department of City Planning of the City of New York, et al., Two Bridges Associates, LP, et al.188 A.D.3d 18 (NYAD 8/27/2020)

Sky’s the Limit: Drone Regulatory Implications

Thursday, October 22, 2020 
12:00 p.m. – 1:30 p.m. CT

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar
 

Aerial drones (sometimes described as “UAS” or “UAV”), have a host of planning applications across urban, regional, rural, and agricultural geographies. From a general aerial surveying perspective, these applications frequently include site analysis and visualization, GIS mapping and modeling, and photosimulations. Sub-disciplines within the planning field such as transportation, environmental, and disaster planning already utilize small drones’ aerial sensors for real-time data collection, infrastructure inspection, project management, and project development. These technologies can facilitate new ways of practicing community engagement. Given the broad applications of this technology across multiple planning disciplines, there is a general need for planners to enhance their awareness of relevant federal regulations, administrative guidance published by the Federal Aviation Administration, and court cases that collectively define the legal operation of small drones. Essentially, if you plan to use this technology in your planning practice, you must know the rules. While acknowledging there are still significant gaps in the legal landscape for small drone operation, this program will discuss useful precedents to help you develop a use-case that is most likely to protect your planning practice and elected officials.. Even though state and federal legislatures continue to debate the regulatory environment to operate small drones, there is some present-day certainty regarding what state and local government can — and cannot — regulate. Our expert panelists will explain the ways in which your city or state planning department could use small drones to enhance your planning efforts, prepare you to navigate the risks in the grey area, and offer insight on how to avoid the pitfalls.  

Information on speakers, cost and registration can be accessed here: https://learn.planning.org/local/catalog/view/product.php?productid=658

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This post was authored by Joseph Schaeffer, Esq.

For the first time in nearly 40 years, the Supreme Court of Appeals of West Virginia has affirmed a trial court’s decision in favor of the landowner on a substantive due process challenge to a municipal zoning ordinance. In the process, the Supreme Court of Appeals clarified the standard of review to be applied at both the trial court and the appellate level.

The case, City of Morgantown v. Calvary Baptist Church, No. 18-1134 (W. Va. Sept. 29, 2020), focused on an approximately ½ acre vacant parcel in the City of Morgantown—home to West Virginia University and about 30,000 full-time residents. The landowner, Calvary Baptist Church, had subdivided the parcel from a larger, neighboring parcel with the purpose of selling it to finance improvements to its sanctuary. The prospective buyer, however, conditioned the sale on a change in the zoning from single-family residential to commercial business.

The Church did not expect any obstacle to the rezoning. The vacant lot was wedged between a large mixed-use development and the Church building and fronted on a busy State road traveled by several thousand vehicles each day. And though there were other residential properties in the area, they were mostly set back from the road. Moreover, the City had recently rezoned neighboring properties from single-family residential to commercial business—on one occasion even finding that the property along the State road was unlikely to be used for residential purposes.

Since the neighboring properties had been rezoned, however, the City had adopted a new comprehensive plan. And it took the position that the plan designated the area in which the vacant lot was located for “limited growth” and “neighborhood conservation.” It therefore denied the rezoning, prompting the Church to file a petition for writ of mandamus to compel the City to adopt the desired change. The Church’s primary legal theory, and the one that ultimately prevailed at trial, was based in substantive due process.

To support its substantive due process claim, the Church expanded on the neighborhood character described above while also producing an appraiser who testified that the single-family residential classification reduced the vacant parcel’s value by more than half. The City, for its part, argued that its comprehensive plan represented the community’s desire to maintain the area around the vacant parcel as residential. The trial court weighed the evidence and sided with the Church, finding that the City had helped to create the current predicament through its prior rezonings and had looked for reasons to deny the Church’s request.

The City appealed and, as in the trial court, the parties’ arguments were defined by the Church’s reliance on neighborhood characteristics and diminished value and the City’s reliance on its comprehensive plan. Two parties also disputed, however, what standard of review applied: the City advocated for a de novo standard on appeal and the inclusion of a comprehensive plan as a specific prong in the substantive due process analysis, whereas the Church argued for a deferential standard that excluded any consideration of a comprehensive plan in favor of the six original LaSalle factors.

Although the COVID-19 pandemic delayed oral argument and, with it, a decision, in late September, the Supreme Court of Appeals issued a unanimous opinion affirming the trial court’s decision. Most interesting is that the Supreme Court of Appeals agreed with the City on the standard of review and consideration of the comprehensive plan. It held that a trial court should consider the comprehensive plan as part of a substantive due process zoning challenge and that it would review this and any future zoning challenges de novo. But it nonetheless held that the Church had met its burden of showing that single-family residential zoning was arbitrary and capricious as applied to its vacant parcel. This too is interesting because it marks the first time in nearly 40 years (and only the third time in the Court’s 70+ year substantive due process zoning jurisprudence) that a landowner has prevailed on this type of claim on appeal. A reasonable inference, then, is that the Supreme Court of Appeals will give municipalities deference on their zoning decisions, but not a rubber-stamp.

City of Morgantown v. Calvary Baptist Church, No. 18-1134 (W. Va. Sept. 29, 2020),

* Mr. Schaeffer was counsel to Calvary Baptist Church in the trial court and the Supreme Court of Appeals of West Virginia.

This post was authored by Dean Fazio, Touro Law Center

While certain legislative acts passed by a city or state can supersede the power of the local zoning ordinances, not all have this authority. The specific wording of the legislative act needs to be carefully reviewed before an applicant presumes that the normal local zoning ordinance and application process should be ignored. One case that tackles this topic and addresses the question above is Lakeview Memorial Park Association v Burlington County Board of Appeals, 232 A. 3d 529 (NJ App. 6/25/2020).

The Plaintiff wanted to expand one of the existing mausoleums on the property. Originally, when they were constructed in 1996 and 2005, the Plaintiff followed the local zoning process to obtain final approval. This process involved applying for a zoning permit, and upon approval, applying for a construction permit. However, when seeking approval of the mausoleum expansion, the Plaintiff chose to solely rely on a legislative act, the “Cemetery Act” which states “Construction shall not begin until detailed plans and specifications of the structure have been approved by the State Department of Community Affairs and the certificate of approval is filed in the office of the municipal enforcing agency where the structure is to be constructed. The State Department of Community Affairs shall not grant a certificate of approval unless it is satisfied that the proposed structure can be operated without constituting a hazard to public health or safety.”

Plaintiff submitted for and obtained approval from the DCA, sending this approval to the local zoning officer alleging exemption for the proposed addition based on two factors. The first was the language within the Cemetery Act that stated “Construction shall not begin until detailed plans and specifications of the structure” had been approved by the DCA. The second was due to the addition already being within the height and setback requirements of the Township’s zoning ordinance. However, the DCA approval did not consider any potential health and safety hazards related to the addition. The Plaintiff then applied for a building permit, without first adhering to the required pre-approval from the zoning officer. As a result, the building permit was denied, and the zoning official explained to the Plaintiff that the DCA approval (based on the Cemetery Act) did not circumvent the proper zoning process.

The Plaintiff appealed and the Defendants sought dismissal of the complaint for failure to state a claim and advising that administrative remedies would be appropriate if the Plaintiff would just follow the proper zoning process. The court sided with the Defendant due to the legislative act not superseding the authority of the existing zoning ordinances and process. This case is a classic example of Plaintiff’s misinterpreting legislative acts and potentially seeking to misuse them to bypass existing zoning ordinances and application processes.

Lakeview Memorial Park Association v Burlington County Board of Appeals, 232 A. 3d 529 (NJ App. 6/25/2020).

This post was authored by Christine Velia, Touro Law Center

Since the 1960s, the Oldfield family, or entities owned by Oldfield family members, has operated Thayer Nursery in a residential district.  Thayer Nursery Corporation, which leases Thayer Nursery land, is a closely held corporation incorporated in 1965 and owned and controlled by the Oldfield children, Joshua and Margaret Oldfield.  The Oldfield parents obtained a special permit allowing a landscaping business at Thayer Nursery in 1967.  The Special Permit ran to the Oldfield parents personally but did not specifically prohibit them from creating or engaging a corporate entity to facilitate or assist in operating Thayer Nursery.  In 1987 the special permit was amended to expand operations at the nursery and specifically run to the Oldfields’ children. 

In 2016, the town amended its zoning bylaws by amending section III.N., entitled “Landscaping Business Use.”  The amended landscaping bylaws state that “[i]n a residence zone on a lot or lots on which a landscaping business was being conducted in July 2012, the Planning Board may grant a special permit for a landscaping business use on such lot or lots provided that the applicant or applicants or their predecessors in interest on that date held a special permit.”

Joshua Oldfield, Margaret Oldfield, and the Thayer Nursery Corp. applied for a special permit under the amended landscaping law in 2016.  The board granted a special permit to all three applicants.  Abutters to the Thayer Nursery property appealed to the Land Court, which affirmed the special permit’s grant.

The record showed that it was uncontested that a landscaping business was conducted on the Thayer Nursery lots in July 2012.  It was also uncontested that Joshua and Margaret or their predecessors, the Oldfield parents, held a special permit for one or more of the Thayer Nursery lots in July 2012.  There was, therefore, no error in the Land Court judge’s decision to uphold the grant of the special permit as to Joshua and Margaret.  However, the corporation did not hold a special permit in July 2012, even though it may have operated the landscaping business since 1967.  Additionally, the special permit was granted specifically to the Oldfields personally.  The corporation is not a successor in interest to the Oldfield parents or children.  Because the amended landscaping bylaw focused only on the entity that “held” the special permit in July 2012 and not on the entity conducting business at that time, the corporation did not meet the eligibility requirements for a special permit.

Abutters also argue that any special permit held had lapsed before July 2012 because Joshua and Margaret never personally commenced “substantial use” of the special permit.  The record showed that Joshua and Margaret were regularly on the property and actively engaged in the business.  The planning board required Joshua and Margaret, personally, to ensure compliance with the conditions in the special permit, thereby ensuring their ongoing personal participation in the operations.  The Court found the abutter’s argument that the 1987 special permit had lapsed before 2012 to be without merit.

The Court vacated that portion of the judgment that included the corporation as a holder of the 2016 special permit.

Johenning v. Planning Bd. of Milton, 2020 WL 4918025 (Mass. App. 8/21/2020)

This post was authored by Victoria Stone, Touro Law Center

Shipyard Associates L.P. (“Shipyard”), a developer, sought to amend a previously approved development plan for a mixed-use development in Hoboken, New Jersey. The original plan included both residential and commercial elements, along with several tennis facilities, which would have been available for public use. Shipyard changed its development to eliminate the tennis facilities and replace them with two additional residential high-rise buildings. The City of Hoboken (“Hoboken”) opposed modifications to the original development plan and cited a previously signed development agreement as a binding contract on Shipyard. Hoboken filed suit attempting to compel Shipyard to complete construction as initially approved. During the pendency of the lawsuit, Hoboken failed to hold the required public hearing concerning Shipyard’s modifications. Hoboken’s failure to have a hearing was determined in a related case to have been an automatic approval of Shipyard’s modified plans.

After filing suit and failing to hold the required hearing, Hoboken passed two ordinances (“Ordinance Z-263” and “Ordinance Z-264”), which in effect, prohibited Shipyard’s modifications. The ordinances did not specifically target Shipyard’s development; however, as applied, the ordinances would prohibit Shipyard’s construction of the additional residential buildings. Hoboken maintained that the ordinances were passed under the legislature’s police power to ensure public health and safety. Under MLUL, developers are afforded a two-year period where they are protected from ordinances that are passed subsequent to final approval.

The New Jersey Supreme Court did not find Hoboken’s arguments that the ordinances were health and safety-related, rather than zoning ordinances. The court held that Ordinance Z-264, as it had been specifically designated as a zoning ordinance, was subject to the two-year protective period. The court reasoned that the effect of Ordinance Z-263 was to drastically change the zoning of any property located within a V-Zone (coastal high-hazard area). The court also found that MLUL does not provide an exception to the two-year protective period for developers when an ordinance is related to health and safety, because the plain language of the statute did not include such an exception. Although other sections of MLUL, namely Section 10.5 and 49, contain exceptions where a municipality may retroactively apply zoning ordinances for public health and safety, these exceptions are for preliminary approvals and not final approvals, as is the case now.

Lastly, the court held that the two-year protective period was tolled by Hoboken’s attempts to block construction for public health and welfare reasons. The New Jersey Supreme Court upheld the previously entered judgment of the Appellate Division.

Shipyard Associates, LP v. City of Hoboken, 242 N.J. 23, 230 A.3d 278 (5/5/2020).