This post is republished with permission from the Rocky Mountain Sign Law Blog

A federal district court in Wisconsin ruled that Adams Outdoor Advertising’s claims that the Madison sign ordinance is unconstitutional could not survive summary judgment.  The ruling in the city’s favor is further support for the proposition that Reed v. Town of Gilbert does not upset longstanding commercial speech doctrine.

The Madison sign ordinance generally prohibits billboard advertising in most areas of the city.  Where they are permitted, billboards are subject to strict regulation as to setback, height, sign area, and spacing between signs.  The city also operates an exchange program, whereby owners of signs that are removed due to redevelopment can “bank” their sign area and obtain a permit in another area of the city.  The city also prohibits digital signs.

Beginning in 2016, Adams Outdoor sought permits for billboards in the city.  It first sought to avail itself of the sign exchange program with respect to one of its signs, but the city determined that the sign was not eligible for the banking program.  Adams Outdoor then submitted 26 applications to the city in 2017 seeking to modify or replace existing billboards.  The city denied 25 of the 26 permits on the grounds that the sign ordinance did not permit the modifications in question.  Adams Outdoor appealed 22 of the denials to the city’s Urban Design Commission, while also filing a lawsuit in federal court.  After the filing of the lawsuit, the city adopted a variety of amendments to its sign ordinance, to ensure that the ordinance complied with Reed.

After finding that Adams Outdoor had standing to raise a facial challenge to the billboard ban, although it did not have standing to challenge portions of the sign ordinance that do not apply to its signs, the court considered whether Adams Outdoor’s claims were precluded under the doctrine of res judicata.  In 1993, the city and Adams Outdoor had entered into a stipulated judgment in another case in which Adams Outdoor challenged the city’s billboard ban, but which resulted in the city granting Adams Outdoor 16 billboard permits.  The court rejected Adams Outdoor’s arguments that changes in the city’s sign ordinance and First Amendment law—mostly stemming from the changes wrought by Reed—could defeat the city’s claim preclusion defense.

Although the court found that Adams Outdoor’s claims were precluded, the court continued to evaluate the billboard company’s First Amendment claims.  However, the court found that those claims would have failed anyway.  The court determined that the ban on billboard advertising in the city, as well as the ban on digital advertising, were not content based.  The court observed that Reed did not address regulation of commercial speech, and further observed that Reed did not invalidate the on-premises/off-premises distinction used to regulate billboards.  The court also distinguished Thomas v. Bright, the Sixth Circuit’s recent case that appeared to question the on-premises/off-premises distinction.  The Madison ordinance was then evaluated as a time, place, and manner regulation under intermediate scrutiny, and the court found that it was constitutional under the First Amendment, as it directly advanced the city’s interests in public safety and aesthetic beautification.

The court also rejected Adams Outdoor’s claims that the ordinance was vague, that it constituted an improper prior restraint, and that it violated the Equal Protection Clause of the Fourteenth Amendment.  With respect to the prior restraint question, the court determined that the eligibility criteria for the advertising sign bank program were not so broad as to give the zoning administrator undue discretion.

Adams Outdoor Adver. Ltd. Partnership v. City of Madison, No. 17-cv-576-jdp, 2020 WL 1689705 (W.D. Wis. Apr. 7, 2020).

This post was authored by Matthew Loescher, Esq.

Simons Investment Properties, LLC sought a determination from the city that the /SR Site Review overlay zone did not apply to ten properties located in the Whiteaker neighborhood, or, alternatively, that the /SR overlay should be removed from those properties. The city determined that the /SR overlay applied and denied Simons Investment’s application for a zone change. In this case, the City of Eugene sought review of a Land Use Board of Appeals (“LUBA”) order that reversed the city’s decision. 

The court first found that contrary to LUBA’s reading of the LUCU, not every base zone was reclassified in the table that appeared in EC 9.1045. That table only includes those districts that were given new titles, and the titles that remained the same, even though the zoning is now “zones” instead of “use districts,” were not included in the reclassification table. The fact strongly suggested that the city intended that zones without a title change would continue as previously applied. It further implied that the city was merely updating code language from “use district” to “zone” and “subdistrict” to “overlay zone” for those unchanged titles. Moreover, nothing in the text or context of the LUCU itself indicated an intention of the city that all the zoning was entirely “new” and needed to be reapplied to be effective.

The court next noted that the LUCU contained text that indicated that the purpose of site review in the LUCU was the same as the purpose of the previous site review. This also indicated that the city intended to revise and update the site review zoning as previously applied to property in the city.

As such, the requirement for site review in the Whiteaker Plan, and the application of /SR to the subject properties in the 1994 rezoning order, applied the /SR overlay to the subject properties, under the plain text of EC 9.4410. Accordingly, LUBA’s order was found “unlawful in substance,” and was reversed.

 Simons Investment Properties, LLC v City of Eugene, 303 OR. App. 199 (3/25/2020)

 

This post was authored by Matthew Loescher, Esq.

In July 2016, PHG submitted a conditional use permit application to the City’s planning department in which it requested authorization to construct an eight-story, 185-room, 178,412 square-foot hotel and an adjoining structure containing 200 parking spaces. The trial court and the Court of Appeals held that the City had improperly concluded that PHG had failed to present competent, material, and substantial evidence showing that the proposed hotel satisfied the standards for the issuance of a conditional use permit set out in the City’s unified development ordinance.

The record reflected that PHG presented the testimony of two architects, an appraiser, a traffic engineer, a certified planner, and the Vice President of PHG who, between them, presented evidence concerning each of the standards enunciated in the relevant portion of the City’s land use ordinance. In light of the facts that PHG had made a sufficient showing to survive what amounted to a directed verdict motion, and that the City did not contend that the record contained any evidence to the contrary, the court found that City Council’s inquiry should have ended. Additionally, the court noted that the City Council’s findings concerning property values and traffic-related issues lacked any support in the admissible and competent evidence. As such, the City lacked the legal authority to deny PHG’s application. The Court of Appeals’ decision was therefore affirmed.

PHG Asheville, LLC, Petitioner v. City of Asheville, 2020 WL 1650898 (NC 4/3/2020)

 

This post was authored by Matthew Loescher, Esq.

In this case, three residents of Rockport challenged a Superior Court judge’s grant of summary judgment in favor of the members of the Zoning Board of Appeals of Rockport and Turks Head, LLC. This holding affirmed the Board’s determination that the property was an “inn” as that term was defined in Rockport’s zoning bylaw.

On appeal, the court noted that even assuming those rooms at the property that were fitted with kitchens qualified as “dwelling units” for the purposes of the bylaw, the fact that the property included rooms without kitchens would mean that the property did not “consist of dwelling units.” Accordingly, the court upheld the Board’s finding that the property was not a “multiple dwelling.”

Next, to the extent that the property’s operations changed between the time of its original designation as a preexisting nonconforming use and the board’s decision in 2016, the court found the property owners did not change the fundamental nature and purpose of the property’s use as an inn. Here, the record supported the board’s conclusion that the changes highlighted by the appellants – such as the rise in long-term occupancy, the streamlining of the complimentary amenities offered, and the reliance on word-of-mouth advertising to market the property — were all reasonable adaptations in how the property served the changing needs of Rockport’s “guest” demographic. Accordingly, the court held there was enough evidence to support the Board’s determination that these changes did not alter the property’s fundamental nature. Thus, the court affirmed the entry of summary judgment in favor of the Board and Turks Head.

Browne v Zoning Board of Appeals of Rockport, 2020 WL 1609129 (MA App. 4/2/2020)

This post was authored by Matthew Loescher, Esq.

His House Recovery Residence, Inc. and its founder, Kevin Weikum operated sober-living residences in which clients voluntarily choose to participate in a substance-free, communal-living environment. At least one of these residences was located in an area of the County that was zoned for single-family, residential use. This classification included “group homes” as a permitted use. In December 2014, His House was cited by the County for illegally occupying a single-family dwelling, as it exceeded the number of allowed residents. In January of 2015, the County issued a criminal citation to Weikum for violation of the Ordinance. His House retained counsel and applied for a Temporary Land Use Permit (“TLUP”) that requested that His House be allowed to exceed the number of allowed residents. The TLUP was denied and the Board ultimately denied the application and gave His House 30 days to reduce the number of residents at Miller Drive.

On appeal, His House claimed that it presented both direct and circumstantial evidence of disparate treatment sufficient to survive summary judgment. His House specifically contended that the legislative history of the Ordinance, the County’s prior actions at Latimer Lane, the County’s alleged departure from its normal code enforcement efforts, animus from neighbors, and Commissioner Birrell’s comments, were all evidence of discrimination. Nevertheless, the court rejected this claim, as His House failed to provide sufficient evidence that the County treated them differently from similarly situated non-disabled citizens. The court further found that the fact the Ordinance was amended as a result of a complaint by an advocacy group did not, without more, prove that His House had been treated differently than similarly situated non-recovering people or that there was discriminatory intent behind the amendment. While the record reflected that some neighbors were opposed to His House’s presence on Miller Drive, “evidence that neighbors and city officials are biased against recovering substance abusers is irrelevant absent some indication that the recoverers were treated differently than non-recoverers.”

His House next argued that the Ordinance was facially discriminatory, as it single out disabled individuals and limited recovering individuals’ ability to obtain and maintain housing. This claim was likewise rejected as the limitation on the number of residents applied to all group homes, as did the requirement that group homes have a resident caregiver, the provision allowing review of the schedule of activities by periodic inspections, and the prohibition against persons on parole or on probation. Accordingly, the Ordinance, did not, on its face, treat recovering individuals any differently than non-recovering individuals. The court therefore upheld the district court’s determination, as His House failed to present either direct or circumstantial evidence of disparate treatment, and found the County’s ordinance was facially neutral.
His House Recovery Residence, Inc. v. Cobb County, Georgia, 2020 WL 1487226 (Fed. Appx 3/26/2020)

This post was authored by Matthew Loescher, Esq.

Abdelqader Holdings, LLC was issued an Order to Comply for violating Section 153.280(G) of the Akron Code by operating a tire sales business at its property, which was located within two different zoning districts. The eastern portion of the property, which was slightly more than half, was within a Class U3 retail business district, while the western portion of the property was within a Class U4 commercial district. The structure from which Abdelqader operated its business was predominantly situated on the eastern portion of the property. Under Section 153.285 of the Akron Code, tire sales were recognized as a “commercial use” and qualified as a restricted use violation within a Class U3, Retail Business, District. Abdelqader appealed the Order to Comply to the Akron Board of Zoning Appeals, which heard and denied the appeal. Abdelqader subsequently appealed to the Summit County Court of Common Pleas, which affirmed the Board’s decision.

On appeal, Abdelqader argued the trial court “failed to consider, as a practical matter, the effect of such enforcement, and that it belied reality to suggest that tire sales on the western half of the Property, a permissible use since it is zoned U4 commercial, would have a different impact, if any, on the surrounding properties than sales on the eastern portion.” The court found the trial court’s determination was supported by a preponderance of reliable, probative, and substantial evidence – consisting of facts not in dispute. Additionally, the court did not find any merit to Abdelqader’s argument that enforcing the more restrictive U3 retail zoning classification on a single use parcel of property was inherently ambiguous.

Abdelqader lastly argued the trial court erred by failing to find that enforcement of the city’s split-zoning classification to a single parcel of property was unconstitutional as applied. Here, however, there was no evidence that Abdelqader was the owner of, or held any interest in, the parcel in question at the time the zoning was enacted. Furthermore, there was no indication that zoning was enacted after Abdelqader started using the property for the sale of automotive tires. This weakened Abdelqader’s argument that the restriction acted as a “de facto rezoning.” As Abdelqader failed to provide any authority to support the notion that the property’s division into two separate and different zoning classifications was arbitrary and unreasonable, its claim was denied by the court.

Abdelqader Holdings, LLC Appellant v. Akron Board of Zoning Appeals, 2020 WL 1528440 (OH App. 3/31/2020)

This post was authored by Matthew Loescher, Esq.

William C. McLaughlin and Deborah McLaughlin were the joint owners of 1640 Fish Road in Tiverton, Rhode Island. After receiving building permits from the Town, the Plaintiffs began constructing a forty-foot by sixty-foot garage on the property. After the construction was complete, the Plaintiffs received a certificate of occupancy. Shortly thereafter, a zoning official of the Town issued the Plaintiffs a notice of violation for failing to comply with the Town’s applicable setback requirements. Plaintiffs then applied for a variance from the setback requirements with the Town Zoning Board of Review. The Zoning Board denied the Plaintiffs’ request for a variance, and McLaughlin appealed the Zoning Board’s decision to the Rhode Island Superior Court, which affirmed.

The Zoning Board filed a “Motion for Order to Comply” with the Superior Court, seeking an injunction that would require Mr. McLaughlin to either move or remove the garage. The Superior Court called a hearing for the Zoning Board’s “Motion for Order to Comply” on April 7, 2014, but neither Mr. McLaughlin nor Mrs. McLaughlin attended. Six months later, the Town sought to have Mr. McLaughlin held in contempt for still not moving or removing the garage. The Superior Court granted the Town’s motion and found Mr. McLaughlin in contempt. The Town directed Mancini Demolition to remove the garage from the Property on March 28, 2016. On June 20, 2018, the Rhode Island Supreme Court issued a decision vacating the Order to Comply pursuant to Rule 60(b)(6) of the Superior Court Rules of Civil Procedure. The Supreme Court’s reason for vacating the Order to Comply was that the Town of Tiverton did not bring a separate action under R.I.G.L. § 45-24-62, which vested the Superior Court with the power to assist cities and towns in the enforcement of their zoning ordinances so long as there are “due proceedings” in the name of the city or town instituted by its city or town solicitor.

At the outset, the Town Defendants claimed they were entitled to quasi-judicial immunity because, in facilitating the demolition of the Plaintiffs’ garage, they were acting pursuant to the order issued by the Superior Court. The court found that, in-so-doing, the Town Defendants were not actors in the judicial system, carrying out the official directives of a judge, but were instead acting in their role as town officials. Here, the Town Defendants sought a judicial order for assistance in enforcing the Town’s ordinances and chose to act on that order during the potential pendency of an appeal. Accordingly, these defendants did not qualify for immunity.

The court next determined that Mrs. McLaughlin waived her procedural due process rights. While she had the opportunity to be involved in the proceedings along with her husband, as she did in the original application for a variance, she ultimately chose not to and made this decision with full knowledge of the actions her husband was pursuing. As such, the court held the Town Defendants could not be held liable for her decision not to participate.

The court further agreed with the Town Defendants in finding that the Plaintiffs’ claim for conversion must fail. The record established that the Town Defendants, acting through Mancini Demolition, removed the Plaintiffs’ garage pursuant to the November 18, 2015 court order, which was facially valid at the time of demolition, and granted the Town Defendants the right to “enter Plaintiff’s property, remove the offending structure therefrom, and charge the entire cost of removal to the Plaintiff, without any further action of the Court.” Thus, the court found that the Town Defendants’ entrance on the Plaintiffs’ property was lawfully valid, pursuant to the court order, and was therefore not a trespass. Accordingly, the court denied the Plaintiffs’ Motion for Summary Judgment and granted the Town Defendants’ Motion for Summary Judgment.

McLaughlin v Demedeiros, et. al. , 2020 WL 1492991 (D. RI 3/27/2020)

This post was authored by Matthew Loescher, Esq.

The plaintiff operated a grocery store at the property it leased located at 159 North 3rd Street in Brooklyn. The defendant CAB Bedford, LLC, owned property, which was situated approximately 450 feet from the property leased by the plaintiff. CAB sought approval from the defendant New York City Department of Buildings (“DOB”) to change the use of the subject property from manufacturing to retail and to construct a large retail center on the subject property. Upon CAB’s applications, the DOB issued building permits for a major alteration at the subject property. the Supreme Court denied the plaintiff’s motion for a preliminary injunction and granted the DOB’s cross motion to dismiss the complaint for failure to state a cause of action.

At the outset, the court noted that while the Supreme Court determined the plaintiff had standing to commence this action, plaintiff failed to exhaust administrative remedies with respect to the causes of action against the DOB. Furthermore, in addition to establishing that the effect of the proposed change was different from that suffered by the public generally, property owners must establish that the interest asserted is arguably “within the zone of interests the statute protects” Here, the plaintiff alleged standing on the basis of proximity, issues and interests within the zone of interests, and adverse impacts. As the plaintiff failed to allege any harm distinct from that of the community at large, however, CAB’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it should have been granted in its entirety on the ground of lack of standing.

159–MP Corp. v. CAB Bedford, LLC,  2020 WL 1280674 (NYAD 2 Dept. 3/28/2020)

This post was authored by Matthew Loescher, Esq.

Plaintiff Dawn Adams Wheelahan owned a large double house in the Uptown neighborhood of New Orleans, Louisiana. Plaintiff lived in one half of the house, and used the other half to host family members, friends, or renters. ln 2016, the City Council adopted a series of ordinances amending the City’s Comprehensive Zoning Ordinances and the City Code to authorize, define, and regulate various categories of “short term rentals,” which went into effect on April 1, 2017. In this case, Plaintiff alleged that the Comprehensive Zoning Ordinances establish sub-categories of short- term rentals including “Accessory Short-Term Rentals” and “Temporary Short-Term Rentals.” Plaintiff further alleges that on May 24, 2018, the City Council enacted another amendment to the Comprehensive Zoning Ordinances establishing an Interim Zoning District, prohibiting “Temporary Short-Term Rentals” within the Interim Zoning District, and allowing “Accessory Short-Term Rental” licenses only for primary residences whose residents have a homestead exemption.

The City first argued that the court lacked subject matter jurisdiction over Plaintiff’s takings claim because the City’s threat to impose civil penalties for violations of City Code § 26-618 did not constitute a Fifth Amendment claim for taking of Plaintiff’s property without just compensation. In opposition to the instant motion to dismiss, Plaintiff also argued that the City revoked Plaintiff’s STR license without cause, and refused to renew her license without cause, thereby effecting a taking of Plaintiff’s license in violation of the Fifth Amendment. Despite this, Plaintiff did not raise this claim in the Amended Complaint. Accordingly, this claim was dismissed and the court denied Plaintiff’s request to amend.

As to Plaintiff’s Eighth Amendment claim, the City contended that Plaintiff failed to allege with particularity how the penalties for violating the STR Ordinances were excessive and not assessed by a neutral hearing officer. Drawing every reasonable inference in Plaintiff’s favor, the court determined that Plaintiff alleged that the size of the fine suggests at least some element of deterrence or retribution and therefore could be considered a punishment. Furthermore, based on the limited record before the court, the court could not determine what fines were imposed on Plaintiff. Accordingly, the court found that Plaintiff has stated an excessive-fines claim against the City.

Plaintiff next claimed that the City’s ordinances prohibiting Plaintiff from advertising and describing her private residential property on the internet were a prior restraint of speech that was presumptively unconstitutional. Plaintiff further argued that the STR Ordinances prohibited Plaintiff from advertising her house on the internet without a license from the City and without prior review and compliance with the City’s terms. In support of this contention, Plaintiff alleged facts indicating that the STR Ordinances imposed a “permitting scheme” that controlled the “time, place, and manner of speech” or required the speaker to “obtain prior approval for any expressive activities.” The court found Plaintiff alleged sufficient facts to demonstrate that the STR Ordinances were a “prior restraint” as opposed to a “subsequent punishment” that “penalizes past speech.” Accordingly, the court denied the City’s motion to dismiss Plaintiff’s First Amendment claim.

As to Plaintiff’s Fourth Amendment claim, the city argued that Plaintiff’s assertion the STR Ordinances required disclosures without a subpoena was a misrepresentation. The City cites City Code § 26-620(b), which states “the city shall have the authority to subpoena information from short term rental hosting platforms.” Additionally, the City notes that the City Code provides for pre-compliance review before a neutral decisionmaker. The 2019 amendments to the STR Ordinances, however appeared to have removed these requirements. Nevertheless, as Plaintiff only sought declaratory and injunctive relief, rather than monetary damages for any alleged prior violations of her Fourth Amendment rights, Plaintiff’s Fourth Amendment claim was found to be moot.

Plaintiff next claimed that the City revoked her license without cause, declared her subsequently-issued license expired less than a year after the City issued it, and refused to issue Plaintiff another STR license. While Plaintiff acknowledged that the City held a hearing on July 17, 2019, providing Plaintiff with notice and an opportunity to be heard. Plaintiff failed to explain how this hearing was constitutionally deficient. Accordingly, the Court held that Plaintiff had not pleaded adequate facts to support her due process claim. Furthermore, as Plaintiff also failed to identify any instances where people similarly situated were treated differently, Plaintiff failed to allege any facts to support an equal protection claim. As such, the court denied the City’s motion to dismiss of both of these Fourteenth Amendment claims, and granted Plaintiff leave to amend the complaint to address these deficiencies, if possible.

Wheelahan v City of New Orleans, 2020 WL 1503560 (ED LA 3/30/2020)

This post was authored by Matthew Loescher, Esq.

This case arose out of a dispute between the tribal leadership of plaintiff Cayuga Nation and the elected officials of defendant Village of Union Springs over whether the municipality may regulate the Tribe’s gambling activities at 271 Cayuga Street, a parcel of historic reservation land the Cayugas repurchased from the open market in 2003. In 2004, the court awarded summary judgment to the Nation, declaring that the property qualified as “Indian country” within the meaning of federal law. Accordingly, the court permanently enjoined the Village “from applying or enforcing” its “zoning and land use laws, or any other laws, ordinances, rules, regulations or other requirements which seek or purport to regulate, control, or otherwise interfere with activities by or on behalf of the plaintiff Cayuga Indian Nation of New York occurring on the Property.” The Supreme Court granted certiorari and reversed, and the district court vacated the permanent injunction it had entered in favor of the Nation in Union Springs I and granted summary judgment to the Village instead.

On appeal, the Nation alleged that federal Indian Gaming Regulatory Act (“IGRA”) preempted the Village’s civil enforcement efforts against the Class II gaming activity at Lakeside Entertainment, and the Nation was therefore entitled to declaratory and injunctive relief from the Village. The Act set forth that “an Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction, if (A) such Indian gaming is located within a State that permits such gaming …, and (B) the governing body of the Indian tribe adopts an ordinance or resolution which is approved by the [NIGC] Chairman.” The court determined that, in drafting IGRA, Congress chose to use expansive definitional language in subsection (A) by including “all lands within the limits of any Indian reservation.” Applying that unrestricted language to the factual landscape of this case, the court found the property qualified as “Indian lands.” Since there was no reasonable dispute that the Nation exercised some degree of concurrent jurisdiction over the property, this requirement was found to be satisfied as a matter of law. Thus, IGRA’s broad preemptive effect meant that Union Springs could not rely on local laws and ordinances to regulate the Tribe’s Class II gaming activity at Lakeside Entertainment.

Next, the Nation claimed that any criminal proceedings with respect to Lakeside Entertainment would be unlawful regardless of whether or not the Nation’s activities are actually authorized by IGRA. As the caselaw was unclear whether § 232 trumped § 1166’s broad grant of exclusive federal authority over criminal matters in Indian country, the general rule was that a later-enacted, comprehensive statute on the same subject matter controlled any potential conflict. Accordingly, the application of § 1166 precluded Union Springs from undertaking any criminal enforcement proceedings with respect to the Tribe’s Class II gaming activity at Lakeside Entertainment.

Lastly, the court found Union Springs “cannot circumvent tribal immunity by merely naming officers or employees of the Tribe when the complaint concerns actions taken in defendants’ official or representative capacities.” As such, the court held the Nation’s sovereign immunity was an independent bar to the Village’s civil and criminal enforcement efforts.

Cayuga Nation v Tianner, et. al., 2020 WL 1434157 (NDNY 3/24/2020)