This post was authored by Matthew Loescher, Esq.
In January 2014, petitioners filed an application to change the zoning of their property located within the Village of Mamaroneck from its current classification to an “Open Space/Residential Community District.” The defendant Village of Mamaroneck Board of Trustees declined to consider the petitioners’ rezoning application. Petitioners filed a second application to rezone the subject property, but the Village Board declined to consider the second rezoning application. The petitioners then commenced this hybrid action for declaratory relief and proceeding pursuant to CPLR article 78, to compel the Village Board to consider their applications.
Pursuant to the Village Law § 7–708; Code of the Village of Mamaroneck § 342–95, the Village Board is vested with discretion to amend its zoning ordinance, and it is not required to consider and vote upon every application for a zoning change. As such, the Village Board’s determinations not to consider the petitioners’ applications were a legislative function not subject to review under CPLR article 78. Since the nature of the relief sought in the third and fourth causes of action was relief pursuant to CPLR article 78, the court held that the Supreme Court should have granted those branches of the respondents’ motion to dismiss the third and fourth causes of action.
In the Matter of Hampshire Recreation, LLC, et al. v Village of Mamaroneck, 2020 WL 1435974 (NYAD 2 Dept. 3/25/2020)

This post was authored by Matthew Loescher, Esq.

The Zitos were residents of Timonium, Maryland and owned a beachfront lot at 10224 East Seagull Drive in South Nags Head, North Carolina. In 2016, a fire destroyed the Zitos’ home, and on July 31, 2017, the Zitos sought to rebuild their home, with a total floor area of 1,792 on a 32′ × 28′ footprint, and submitted a North Carolina Coastal Area Management Act (“CAMA”) Minor Permit application to the Town of Nags Head’s CAMA Local Permit Officer (“LPO”). The CAMA rules and regulations include set-back requirements for ocean-front development on property within the Ocean Erodible Area of Environmental Concern (“AEC”). In 2018, the Town of Nags Head LPO denied the Zitos’ CAMA Minor Permit. After the denial, the Zitos filed a variance petition with the North Carolina Coastal Commission. The Commission held that the Zitos failed to demonstrate the requisite hardship to qualify for a variance.

The court first noted that because the Commission was asserting sovereign immunity, it had the burden of proving such immunity. Here, the Commission, along with the DCM and larger CAMA programs, received funding from the North Carolina General Assembly (“NCGA”), federal grants and appropriations, and permit revenue, which become state funds when deposited in State Treasury accounts. Additionally, although the state is not explicitly liable for the Commission’s liability, the state is functionally liable for any judgment. The court further found that both the appointment and funding considerations demonstrated that the Commission lacked autonomy. As for the third factor concerning statewide concern, the Commission regulated the coastal areas of North Carolina and thereby affected areas of state-wide importance. As for waiver, the Zitos did not alleged any facts indicating that the Commission had clearly and unequivocally waived immunity to a federal takings claims in federal court.

Next, although the Zitos correctly claimed that N.C. Gen. Stat. §113A-123(b) did not provide a monetary remedy for temporary takings during the eminent domain procedure, the North Carolina Constitution provided such a remedy. Specifically, even though the North Carolina Constitution did not expressly prohibit governments from taking private property for public use without just compensation, the Supreme Court of North Carolina has found such a prohibition in the Law of the Land Clause. Thus, the Zitos could sue under the Law of the Land Clause of the North Carolina Constitution, which provides: “No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.”

The court found the Zitos’ takings claim could not be remedied fully under N.C. Gen. Stat. §113A-123 because the eminent domain procedures failed to compensate for the temporary loss in value during the duration of the proceedings. However, the Supreme Court of North Carolina, recognized “inverse-condemnation” claims, similar to the regulatory taking at issue here, as allowing for damages. Moreover, North Carolina courts have allowed “vested rights claims,” which are “rooted in the due process of law and the law of the land clauses of the federal and state constitutions,” to proceed as claims under the North Carolina Constitution in the context of zoning claims. Accordingly, the court granted the Commission’s motion to dismiss

Zito v North Carolina Coastal Commission, 2020 WL 1493476 (ED NC 3/27/2020)

This post was authored by Matthew Loescher, Esq.
Prior to plaintiff North Charles Mental Health Research and Training Foundation, Inc., leasing the subject property and beginning its use at that location, uses of the property from 2008-2014 included toy design, offices for a “cloud” telecommunications service provider, and a contracting firm engaged in HVAC and sheet metal design and servicing. After entering into a lease for the property, but before commencing occupancy and operations there, North Charles applied for and obtained a building permit to construct a medical examination room, a medical records room, two doctors’ offices, seven offices, twenty-three consultation rooms, and a waiting area. Soon thereafter, the Cambridge building commissioner issued a cease and desist order, and the Cambridge board of zoning appeal (“BZA”) affirmed that denial.

The Land Court determined that the vast majority of the services provided at the property are individual and group talk therapy sessions. Thus, the uses fit the definition of a “social service center” as that use was defined in the ordinance. Since North Charles’s use fell within a specifically defined use category under the ordinance, distinct from the general commercial uses on which prior use of the property was protected as a lawfully commenced preexisting nonconforming use, and since the regulatory framework applicable to that use category was based on its identifiably different impacts on the surrounding area, the court upheld the BZA and the Land Court judge’s holdings that the property was not exempt from current zoning as a lawfully commenced preexisting nonconforming use.

North Charles Mental Health Research and Training Foundation, Inc. v City of Cambridge, 2020 WL 1488531 (MA App. unrep. 3/26/2020)

This post was authored by Matthew Loescher, Esq.
Ehemann Real Estate owned property located at 5060 Batavia Pike in Hamilton County, Ohio, and leased the property to EME Fence Company, Inc., (“EME”). EME leased a small portion of the land to Lamar Advantage GP Company, on which Lamar has been operating a legal nonconforming billboard. This case arose from the Township’s decision that the billboard must be taken down.
In its first assignment of error, the Township claimed the trial court improperly reversed the Township’s zoning decision. The court therefore analyzed whether the 2008 planned unit development (“PUD”), which did not mention the nonconforming billboard, required the billboard to be removed. The Township argued that the magistrate improperly “reopened” the 2008 PUD and made factual findings regarding the 2008 PUD, even though the 2008 PUD was never appealed and was not before the trial court in this case. The court found that it was unclear from the 2008 PUD whether the parties intended for the billboard to remain in place. Because Paul Drury, the secretary for the zoning commission, testifying to this during the hearing on the 2012 PUD application, the magistrate did not exceed his authority in considering the record from the 2008 PUD as it was included in the record
In its second assignment of error, the Township contended that the 2008 PUD did not include a condition for the billboard, and so the continued use of the billboard was not permitted as the billboard was a nonconforming use. The court found a preponderance of the evidence supported the magistrate’s holding that the omission of the billboard from the 2008 PUD was an oversight, and not an intentional relinquishment of Lamar’s property rights in the billboard. Here, in adding the condition requiring removal while approving the 2012 PUD application, the Township modified the written conditions of the 2008 PUD, and thereby violated ATZR 4.1.I. As such, the Township’s second assignment of error was overruled.
Lamar argued that the Township violated its constitutional rights by substantially interfering with Lamar’s property. Specifically, Lamar claimed that it was entitled to a writ of mandamus against the Township, because the Township used the PUD process to substantially interfere with Lamar’s property, resulting in a taking of Lamar’s property. The court found Lamar’s substantive-due-process argument failed under both the state and federal standards, as Lamar failed to show that it was deprived of any property interest or that the Township’s ruling on the 2012 PUD application was arbitrary or unreasonable. The court further found the fact that the Township’s ruling was contrary to law was not sufficient to sustain a claim of violation of substantive due process. The trial court’s judgment was therefore affirmed.
Ehemann Real Estatet, Ltd v Anderson Township Zoning Commission, 2020 WL 1488722 (OH App. 3/25/2020)

This post was authored by Matthew Loescher, Esq.

In 2014, Citizens for Free Speech, LLC entered into an agreement with Michael Shaw, the owner of a parcel of land in Alameda County, to display billboards expressing political messages. County officials determined that the billboards violated the local zoning scheme, and began an abatement proceeding against Citizens, which provided for a hearing before the zoning board and process by which to appeal an adverse decision. In response, Citizens filed a federal lawsuit seeking to prevent abatement but failed to obtain a permanent injunction barring the County from enforcing its ordinances. Following this, the County initiated a new abatement proceeding. Citizens responded by filing another federal lawsuit alleging constitutional violations pursuant to 42 U.S.C. § 1983, seeking both equitable and monetary relief. The district court, invoking Younger abstention, dismissed the complaint and awarded the County costs and fees.
At the outset, the court determined the abatement proceeding was “ongoing” for Younger purposes, and satisfied the “quasi-criminal enforcement” element. Specifically, the County’s abatement action included an investigation, alleged violations of nuisance ordinances, notice to appear before a zoning board, and the possibility of monetary fines and/or forcible removal of Citizens’s billboards. Additionally, the abatement proceeding also implicated an important state interest, namely the County’s “strong interest in its land-use ordinances and in providing a uniform procedure for resolving zoning disputes.” Finally, the court determined plaintiffs’ federal action could substantially delay the abatement proceeding, and therefore have the practical effect of enjoining it. Moreover, no exception to Younger, such as bad faith, harassment, or flagrant violation of express constitutional prohibitions by the state or local actor, was present in this case.
In the dismissal order, the district court stated that there was “no merit” to plaintiff’s claim that claim preclusion barred the county from endorsing its zoning ordinance against plaintiff, characterized some of plaintiff’s citations as “irrelevant,” and noted plaintiff’s failure to provide “any authority” in support of its key argument. As such, while a dismissal of a damages claim under Younger may not always materially alter the parties’ legal relationship, the court noted that it unquestionably did so here.
Citizens for Free Speech, LLC v. County of Alameda, 2020 WL 1429320 (9th Cir CA 3/24/2020)

This post was authored by Matthew Loescher, Esq.

Crown Castle is a telecommunications services provider that seeks to install and operate telecommunications facilities in the City of Charleston, South Carolina. To provide its services, Crown Castle uses fiber optic lines and equipment figurations called “Nodes”, which consist of various equipment and are located on utility or streetlight poles. The entity seeking to install telecommunications facilities in the City must first obtain an engineering permit from the Department of Public Service. Additionally, the City’s Design Review Committee (“DRC”) reviews and makes recommendations regarding the aesthetics of the facilities.

Crown Castle first argued that summary judgment in its favor was warranted because the undisputed facts reflect that the City has violated 47 U.S.C. § 253(a) by actually and effectively prohibiting Crown Castle from providing telecommunications services, and that the City has failed to act in a timely manner on Crown Castle’s 16 applications in violation of 47 U.S.C. § 332(c)(7). The court found that any arguments about the amount of time it took the City to enact the Small Cell Ordinance or about the franchise agreement were moot given that the City has passed the Small Cell Ordinance and entered into a franchise agreement with Crown Castle. However, Crown Castle’s arguments regarding its 16 applications on which the City has yet to act were not moot.

Crown Castle contended that the City has violated § 253(a) because its inaction constituted a de facto moratorium, which the FCC Declaratory Ruling found to be violative of § 253(a). The court noted that in order for the Declaratory Ruling to be binding on the district court, Crown Castle was required show that the Declaratory Ruling was equivalent to a legislative rule that had the force and effect of law. Here, Crown Castle failed to provide any examples of courts that have found a § 253(a) violation based on a de facto moratorium. Given the lack of argument on whether the FCC Declaratory Ruling was binding on this court and the lack of cases in which a court has found that a city violated § 253(a) by enacting a de facto moratorium, the court held that summary judgment was not warranted on the issue of whether the City has violated § 253(a) based on a de facto moratorium.

Crown Castle lastly argued that the City failed to act on its applications in a timely manner, in violation of 47 U.S.C. § 332(c)(7)(B)(ii). Crown Castle submitted the applications at issue here to use existing utility poles on April 15, 2019, April 22, 2019, May 6, 2019, and May 7, 2019. The record reflects that the City has not accepted or rejected these eleven applications, and the shot clock of 60 days has run. Crown Castle also submitted applications at issue here to use new poles on April 26, 2019, May 7, 2019, and May 8, 2019. The City has likewise not accepted or rejected these five applications, and the shot clock of 90 days has also clearly run. The court therefore found that there was no genuine issue of material fact as to whether the City has violated 47 U.S.C. § 332(c)(7)(B)(ii) and granted summary judgment in favor of Crown Castle. The City was given 90 days to act on Crown Castle’s sixteen pending applications.

Crown Castle Fiber, LLC v City of Charleston, 2020 WL 1330711 (D SC 3/23/2020)

This post was authored by Matthew Loescher, Esq.

Déjà Vu of Nashville, Inc., an adult entertainment business, contracted with The Parking Guys, Inc. for valet parking services. The Metropolitan Government of Nashville and Davidson County denied the valet permit to The Parking Guys, which appealed the denial to the Traffic and Parking Commission. Metro Council Member Freddie O’Connell, private citizens Linda Schipani and Lee Molette, and Midtown Nashville businesspersons, opposed the valet permit based on stated concerns about traffic congestion and safety risks in the area. The Commission voted to deny the permit and Plaintiffs unsuccessfully appealed. Déjà Vu and The Parking Guys also brought federal civil rights claims under 42 U.S.C. §§ 1983 and 1985 against the defendants. All Defendants moved to dismiss Plaintiffs’ complaint and the district court granted their motions.

Schipani first argued that Déjà Vu lacked standing and its claims should be dismissed because TPG alone was denied the valet permit and Déjà Vu suffered no injury.

Déjà Vu pled that its injury resulted from a civil conspiracy, traceable to Schipani because of her emails and statements, and that the alleged infringement of First Amendment rights is redressable with the remedies it sought: a declaratory judgment, money damages, attorney’s fees, and costs. The court agreed, and upheld the district court’s finding that Déjà Vu had standing to bring suit against Schipani and the others.

The district court next dismissed Plaintiffs’ §1985 claim because their “complaint contains not a single allegation about a group of individuals that share their desire to engage in the same First Amendment activity opposed by Defendants, let alone that the amorphous group was subjected to racially discriminatory animus because of their desire.”

Moreover, the complaint failed to contain an indication of any class membership at all. Therefore, Plaintiffs failed to state a claim under §1985 against any of the defendants in their complaint.

Private citizens Schipani and Molette asserted immunity as witnesses under Tenn. Code Ann. § 4-21-1003(a), which granted immunity from civil liability on claims based upon any person’s communication to a governmental agency in matters of concern to that agency.

The court found that the resolution of the immunity issue was unnecessary to the district court’s determination to grant the motions to dismiss, and, as a result, Molette and Schipani did not “prevail” upon the defense of immunity. Furthermore, Molette and Schipani failed to adequately explain how this state immunity statute authorizing attorney’s fees would even apply to federal causes of action in federal court. Thus, the court affirmed the district court’s dismissal of Plaintiffs’ claims and denied Schipani’s motion for appellate sanctions. 

Deja Vu of Nashville v Metropolitan Government of Nashville & Davidson County, 805 Fed. Appx. 379 (6th Cir. CA 3/13/2020)

 

This post was authored by Matthew Loescher, Esq.

Appellant landowner submitted a site plan proposing to improve his property for a mixed-use by building a restaurant, a store for selling food items, a car wash, 16 fueling stations for cars and motorcycles, 107 parking spaces for cars and motorcycles, 6 fueling stations for trucks, and 4 parking spaces for trucks. The Commission approved the Site Plan. Following this, appellees appealed the Commission’s approval to the Board, claiming that the intended use proposed in the Site Plan constituted a “truck stop” as defined by the Zoning Ordinance, which required a Special Exception to be permitted in the HI zoning district. The Board held the proposed use was not a “Truck Stop” as defined in Article 28A of the Ordinance, and the circuit court reversed.

On appeal, Appellant argued the circuit court erred in reversing the Board’s decision because the Board correctly interpreted the definition for “truck stop.” The Washington County Zoning Ordinance provided for various zoning districts, in which certain specified uses were permitted. The Board focused its interpretation on the use of the word “primarily” and determined that the proposed use was not “a group of facilities.” The site plan, however, indicated there would be a building that served food and other items, several canopies to house the fuel pumps, truck parking, and a separate structure for a car wash. As such, the proposed use described “a group of facilities.” The court therefore held that the proposed use constituted a “truck stop” under the second clause of the Zoning Ordinance.

Spielman v Hershey, 2020 WL 1244776 (MD unrep. 3/16/2020)

This post was authored by Matthew Loescher, Esq.

In 2003, Suburban Land Reserve, Inc. owned roughly 245 acres of undeveloped real estate on Mapleton’s east bench. Suburban thereafter entered into a development agreement with Mapleton, in which Suburban conveyed approximately 76 acres of the property to Mapleton. In exchange, Mapleton passed an ordinance zoning the remaining approximate 170 acres with a 136-residential-unit maximum density and a TDRR overlay, meaning it was a receiving site for transferable development rights (TDRs). Mapleton also granted 77 TDRs to Suburban. In December 2005, Suburban transferred the Property to another entity Preserve (LDIII’s predecessor in interest). When LDIII sought to develop the Property into 176 residential units, the Mapleton city council approved a modification of the applicable zoning ordinance. Mapleton citizens challenged the zoning change, however, and reversed it through a voter referendum. Following this, LDIII sought a declaratory judgment in the district court, where LDIII lost on summary judgment.

On appeal, the court found that the Original Agreement did not confer zoning rights to LDIII, and the rights enjoyed by Suburban and the Preserve did not run with the land to LDIII. The court noted that for a covenant to run with the land, as opposed to being a personal covenant, four elements must be met: “(1) the covenant must touch and concern the land affected by the covenant, (2) the original parties to the covenant must have expressly or impliedly intended the covenant to run with the land, (3) there must be privity of estate, and (4) the covenant must be in writing.” Here, the second element was unambiguously absent under the plain language of the Original Agreement. Furthermore, Section 10 stated that the rights “shall only run with the land so long as Owner or a company which is affiliated with or under common ownership and control of Owner shall own and be the Owner of the Property” or “only upon the express prior written approval by the City, shall any rights of Owner with respect to the portion of the Property being sold be deemed transferred to the new owner thereof.” Accordingly, this plain language dictated that LDIII meet the affiliated-ownership requirement or the city-approval requirement for the zoning rights to pass contractually. The court therefore affirmed the district court’s ruling that the zoning rights under the Original Agreement did not pass to LDIII.

Even assuming LDIII did not have any rights stemming from the Original Agreement, LDIII argued that the property nevertheless possessed its desired zoning by virtue of the 2017 Mapleton city council decision. Specifically, LDIII contests the validity of that citizen referendum, claiming that it was invalid because the 2017 rezoning was “an individual property zoning decision” and thus not legislative and not subject to a referendum. The court found that site-specific zoning is legislative because it “requires the weighing of broad, competing policy considerations and results in a law of general applicability”, the “chief hallmarks of legislative action.” As such, the court affirmed the district court’s holding that the referendum was valid, and affirmed the district court’s entry of summary judgment in favor of Mapleton.

LD III LLC, Appellant, v. Mapleton City, 2020 WL 1295083 (UT App. 3/19/2020)

This post was authored by Matthew Loescher, Esq.

In December 2017, William Drummond entered into a ten-year lease of a 265-acre parcel within the jurisdiction of Robinson Township, Washington County, Pennsylvania. Mr. Drummond, through his wholly owned entity, GPGC LLC, planned to open and operate a for-profit shooting range and gun club on the property. Under Robinson Township’s Zoning Ordinance, Mr. Drummond’s property was zoned as an Interchange Business Development District, or IBD District. At the time Mr. Drummond entered the lease, the Zoning Ordinance allowed Sportsman’s as permitted principal uses within IBD Districts. By the time Mr. Drummond submitted his zoning permit application in March 2018, the Township had proposed certain amendments to the Zoning Ordinance that regulated Sportsman’s Clubs. In August 2018, Drummond, GPGC LLC, and Second Amendment Foundation, Inc. filed suit against Defendants Robinson Township and Zoning Officer Mark Dorsey, seeking relief, pursuant to 42 U.S.C. § 1983, for alleged facial and as-applied violations of the Second Amendment right to bear arms, as well as various facial and as-applied violations of the Fourteenth Amendment’s Equal Protection, Due Process, and Privileges or Immunities clauses.

Plaintiffs brought two claims under 42 U.S.C. § 1983, alleging that Sections 601 and 311(D) of the Township’s Zoning Ordinance, facially violated the Second Amendment. By limiting outdoor shooting activities at Sportsman’s Clubs to “pistol range, skeet shoot, trap and skeet, and rim-fire rifles,” and thereby prohibiting center-fire rifles, the court found that Section 311(D) burdened a person’s ability to maintain proficiency in the use of centerfire rifles. Likewise, Section 601’s prohibition on commercial activities at Sportsman’s Clubs regulated where firearms and ammunition may be bought and sold. These sections of the Zoning Ordinance were found to be time, place, or manner regulations of ancillary Second Amendment conduct. Additionally, the Township’s stated objective for these regulations, such as nuisance prevention and protecting the public health, safety and welfare of its residents, was found to be an important one.

As to available alternative channels, Plaintiffs contended that there were no means under the Zoning Ordinance “by which anyone might be allowed to operate a for-profit gun club or shooting range within an IBD district, or shoot center-fire rifles at a Sportsman’s Club”. Plaintiffs, however failed to plead any facts that demonstrated a lack of commercial gun ranges or gun ranges where center-fire rifles could be fired within the Township. The record indicated the opposite, that commercial outdoor shooting ranges were allowed in other zones. As there were alternative channels within the Township through which the Second Amendment conduct at issue could occur, Defendants’ Motion to Dismiss was granted.

Drummond v Robinson Township, 2020 WL 1248901 (WD PA 3/16/2020)