Damages and Attorney’s Fees
Add to the end of the first full paragraph on page 209, “2. For discussion of § 1983, see…”:
For a critical stance on the judiciary’s application of § 1983 and proposed corrective amendments, see Bodensteiner, Congress Needs to Repair the Court’s Damage to § 1983, 16 Tex. J. on C.L. & C.R. 29 (2010).
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PROBLEM
Barriers to Judicial Relief: Ripeness
Williamson County Regional Planning Commission v. Hamilton Bank Of Johnson City
NOTES AND QUESTIONS
Insert at the end of the second paragraph of Notes and Questions 2, More on the final decision requirement, p. 216:
The Palazzolo ripeness case underscored that the land use agency - not a reviewing court - determines the extent of development allowed on a property. The Federal Claims Court relied upon this point in Mehaffy v. U.S., 98 Fed.Cl. 604, 621 (Fed. Cl. Ct. 2011), holding that where a regulatory scheme does not provide for variance or an administrative appeal mechanism, a decision becomes final once the governing body denies the merits of the application, leaving “no uncertainty as to the land’s permitted use.” Id. at 623. There, Mehaffy applied to fill wetland property based on its landfill easement, which was subject to approval by the Army Corps of Engineers. Though Mehaffy offered little supporting documentation with its application and further failed to satisfy the Corps’ requests for testing and surveys, the Corps had “sufficient information” to unconditionally deny Mehaffy’s sparse application because it construed the regulations (there, the Clean Water Act) as effectively foreclosing the possibility of any commercial development on the wetlands in question. Mehaffy appealed and offered no new documentation, and the Corps denied his appeal. Under Palazzollo, since no court can undermine the administrative agency’s decision regarding the types of permissive uses, Mehaffy had exhausted his administrative appeals process.
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Add at end of Notes and Questions 2, More on the final decision requirement, p. 216:
Applying Williamson County and Palazzolo, the Fourth Circuit Court of Appeals in Acorn Land, LLC v. Baltimore County, Maryland, supra, held that the County Council’s refusal to act on a developer’s petition to amend its property’s water/sewer classification to permit development, and the Council’s subsequent rezoning of the developer’s property to a less dense classification “satisfied Williamson’s final decision prong.” The court concluded that “it is clear that the Council has ‘dug in its heels’ and will not allow Acorn to receive necessary access to public water/sewer systems to residentially develop its property.” 402 Fed. Appx., at 815.
Thus…it would be both futile and unfair to require Acorn to jump through any additional administrative hoops to obtain a ‘final decision.’…We are satisfied that the ‘permissible uses of [Acorn’s] property are known to a reasonable degree of certainty,’ and Williamson’s first prong is satisfied. Id.
The court then held that while Acorn “has sufficiently pled a regulatory takings claim that is plausible on its face,” its substantive due process claim failed because it “did not plausibly plead that no state-court process could cure Acorn’s injury.” Id, at 817.
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Add at the end of Notes and Questions 3, after sentence “holding no”, P. 217:
In City of Suwanee v. Settles Bridge Farm, LLC 738 S.E.2d 597 (Ga. 2013) the Georgia Supreme Court held that Settles Bridge’s claim was not ripe because it had not applied for a newly-required special use permit. Belief that a permit application would be denied did not excuse the requirement to exhaust all administrative remedies, the court concluded.
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Insert after the second sentence of Note 5, p. 217:
In Alto Eldorado Partnership v. County of Santa Fe, supra, the developers’ claim was ultimately found to be unripe because they had not utilized the available state procedure to seek compensation as required by Williamson.
Add at end of Notes and Questions 5, The state compensation remedy, p.218:
The First Circuit in Downing/Salt Pond Partners, L.P. v. Rhode Island and Providence Plantations, 643 F.3d 16, 22 (1st Cir. 2011) held that a takings claim was unripe where the plaintiff had failed to pursue the state’s inverse condemnation cause of action, and that a party cannot be excused from the “state litigation” requirement set forth in Williamson County unless it satisfies its burden to prove the absolute unavailability or inadequacy of potential state remedies.
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Barriers to Judicial Relief: Abstention
PROBLEM
Review COPPLE v. CITY OF LINCOLN
NOTES AND QUESTIONS
Remedies in Land Use Cases
Forms of Remedy
Specific Relief
CITY OF RICHMOND v. RANDALL
NOTES AND QUESTIONS
Add as a new paragraph at the end of Note 7 on p. 218:
When a state court damages award on a takings claim does not appear to the plaintiff to be "just compensation," an owner who reserved his federal takings claims in a state court action may bring that claim in federal court unless state preclusion statutes prohibit it. Edwards v. City of Jonesboro, 645 F.3d 1014, 1016, 1019 (8th Cir. 2011). In Edwards, the plaintiff brought an inverse condemnation action in Arkansas state court alleging that invasive methane gas from a city landfill reduced the value of his property. Id. at 1016. Edwards obtained a judgment awarding him over $400,000 for his state claim, but plead a “reservation of rights” in hopes of preserving federal rights and remedies. Id. at 1017. Dissatisfied with the judgment, Edwards filed a state court appeal, which was rejected as untimely, and subsequently brought an inverse condemnation action under § 1983 in federal district court. Id. The Arkansas federal court found that Edwards’ state judgment precluded him from bringing the claim in federal court, and the Eighth Circuit federal court affirmed. Id. at 1020. Since the Full Faith and Credit Act requires federal courts to give state court judgments the same effect as they would have in another court in the same state, 28 U.S.C. § 1738, the court applied the Arkansas preclusion statute and the Supreme Court holding from San Remo Hotel to determine that Edwards’ claim was precluded because “there is no exception to the full faith and credit statute under which property owners may reserve their federal rights for a later federal suit.” Id.
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PROBLEM
CONTROL OF LAND USE BY ZONING
THE HISTORY AND STRUCTURE OF THE ZONING SYSTEM
Some History
Zoning Enabling Legislation
NOTES AND QUESTIONS
A NOTE ON CONTEMPORARY APPROACHES TO ZONING ENABLING LEGISLATION
NOTES AND QUESTIONS
Even zoning to help reduce obesity involves issues of what is enabled: Paul A. Diller and Samantha Graff
SYMPOSIUM ARTICLE: EMERGING TOPICS IN PUBLIC HEALTH LAW AND POLICY: Regulating Food Retail for Obesity Prevention: How Far Can Cities Go? Special Supplement Spring 2011, 39 J.L. Med. & Ethics 89:
“Even if, as the Town contends, Town Code § 198-21.2 requires that development of lot 73 include a swimming pool and community center not to exceed 5,000-square feet, such a provision would be ultra vires and void as a matter of law (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d 51, 55-56 [2008])…. While the enabling statutes in Town Law article 16 confer authority upon a town to enact a zoning ordinance setting forth permitted uses, nothing in the enabling legislation authorizes the Town to enact a zoning ordinance which mandates the construction of a specific kind of building or amenity (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99 [1983]).” 82 A.D.3d 1203 (2011); 920 N.Y.S.2d 198.
Town of Huntington v. Beechwood Carmen Bldg. Corp., 920 N.Y.S.2d 198 (N.Y. App. Div. 2d Dep’t 2011).
In re Moore Accessory Structure Permit and Use (Gary Smith and Betsy Siebeck, Appellants), 2013 Vt 54, 2013 VT. LEXIS 52 (2013)(“certain buildings used to process timber into lumber qualify as ‘farm structures’ exempt from local zoning regulation under 24 V.S.A. § 4413(d)(1)” because state law recognizes the uses as sustainable agriculture).
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Sustainability has become a leading theme in zoning ordinances. The Rocky Mountain Land Use Institute early on in the emergence of sustainability provided a useful overview entitled “Sustainable Zoning: A New Imperative – The Sustainable Community Development Code,” draft dated February 13, 2007, prepared by James van Hemert, available on-line at http://www.law.du.edu/images/uploads/rmlui/rmlui-sustainable-SustainableZoningFramework%206.pdf
The City of Madison, Wisconsin is often a leader in land use planning and regulation. The Zoning Code Rewrite Advisory Committee has promulgated some “Zoning Codes Sustainability Ideas” available at http://www.cityofmadison.com/neighborhoods/zoningrewrite/documents/sustainability.pdf. Importantly, they identify what types of sustainable ideas can be addressed through zoning, such as energy, water, green infrastructure/urban agriculture, public health, density, mixed-use/transit oriented development, and parking.
Equally important, they point out what sustainable ideas cannot be addressed through zoning, such as providing incentives for construction that meet green building standards, prohibiting heated sidewalks, and requiring solar in all commercial and institutional buildings.
See also Stark County, Ohio, "Sustainable Planning and Zoning Handbook” (June 2011, Revised November 2012) http://www.co.stark.oh.us/internet/docs/rpc/Sustainable%20Planning%20and%20Zoning%20Handbook.pdf
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The Zoning Ordinance
NOTES AND QUESTIONS
What happens when a use straddles two districts? It may be a good case for a variance: “We conclude that BSA's finding that the proposed building satisfies each of the five criteria for a variance set forth in § 72-21 has a rational basis and is supported by substantial evidence (see Matter of SoHo Alliance, 95 NY2d at 440). BSA rationally found that there are "unique physical conditions" peculiar to and inherent in the zoning lot such that strict compliance with the zoning requirements would impose "practical difficulties or unnecessary hardship" (Zoning Resolution § 72-21[a]). Among the physical conditions BSA considered unique was that the zoning lot in question straddles two zoning districts:…”
Kettaneh v. Board of Stds. & Appeals of the City of New York, 2011 NY Slip Op. 5410 (N.Y. App. Div. 1st Dep’t 2011).
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PROBLEM
ZONING LITIGATION IN STATE COURTS
PROBLEM
Standing
Center Bay Gardens, Llc v. City Of Tempe City Council
NOTES AND QUESTIONS
An abutter is presumed aggrieved with standing, but once challenged must “present credible evidence to substantiate their particularized claims of harm to their legal rights.”
Kenner v. Zoning Bd. Of Appeals, 459 Mass. 115 (Mass. 2011).
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Generally, a property owner will not be found to be aggrieved if they have “failed to demonstrate any legally cognizable interest aside from increased business competition….”
In the Matter of Hadland v. Zoning Board of Appeals of The Town of Southhampton, 2012 N.Y. App. Div. LEXIS 2867; 2012 NY Slip Op 2877.
The issue of presumptive standing often comes up in these cases. In March of 2012, the Supreme Judicial Court of Massachusetts handed down a decision affirming the standing of a neighbor. The neighbors, as abutters, are presumed to have standing to appeal a land use decision; and the burden is on the developer in the first instance to produce evidence to the contrary.
81 Spooner Road, LLC v. Zoning Board Of Appeals Of Brookline, 461 Mass. 692 (2012).
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Exhaustion of Remedies
Ben Lomond, Inc. v. Municipality Of Anchorage
NOTES AND QUESTIONS
“Generally, ‘one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law` ‘[A]bsent extraordinary circumstances, courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency’ The doctrine of exhaustion of administrative remedies applies to actions for declaratory judgments However, there are exceptions to the exhaustion doctrine applicable where the agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or where resort to administrative remedies would be futile or would cause irreparable injury.”
Town of Oyster Bay v. Kirkland, 917 N.Y.S. 2d 236 (N.Y. App. Div. 2d Dep’t 2011).
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The Rhode Island Supreme Court recently had an opportunity to address the exhaustion of remedies question and found that property owners failed to exhaust their remedies when they first requested a special permit along with a dimensional variance and were denied that permit because the zoning laws did not authorize the special permit in conjunction with a dimensional variance. The zoning ordinances were later amended to allow a special permit with a dimensional variance but the plaintiffs never re-applied. Under these circumstances, they failed to exhaust their remedies, held the court.
Tolias v. Cash, 2012 R.I. Super. Lexis 5
“[W]e conclude that the exhaustion-of-administrative-remedies requirement set forth in subdivision (a) of section 21177 applies to a public agency's decision that a proposed project is categorically exempt from CEQA compliance as long as the public agency gives notice of the ground for its exemption determination, and that determination is preceded by public hearings at which members of the public had the opportunity to raise any concerns or objections to the proposed project.”
Fred Tomlinson v. County Of Alameda, Y.T. Wong, 54 Cal.4th 281, 142 Cal. Rptr. 3d 539, 278 P.3d 803, 2012 Cal. LEXIS 5261 (2012).
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Securing Judicial Review
Copple v. City Of Lincoln
NOTES AND QUESTIONS
“[T]he crucial test for determining what is legislative and what is administrative [quasi-judicial] is whether the ordinance is making a new law, or one executing a law already in existence … Clearly, adoption of amendments under the Ordinance constitutes the creation of new law and is therefore a legislative act by the City Council.”
King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. 123 (Ark. 2011).
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Remedies in Land Use Cases
Forms of Remedy
Equitable remedies, including estoppel: “a landowner must establish the following elements of good faith action on the landowner's part: (1) that he relied to his detriment, such as making substantial expenditures, (2) based upon an innocent belief that the use is permitted, and (3) that enforcement of the ordinance would result in hardship, ordinarily that the value of the expenditures would be lost.”
DeSantis v. Zoning Bd. Of Adjustment, 12 A.3d 498 (Pa. Commw. Ct 2011).
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Mandamus continues to be an occasional remedy available to claimants in zoning matters. The Supreme Court of Georgia upheld the trial court’s grant of a writ of mandamus as the only avenue for relief for this property owner: “When local zoning ordinances do not establish a means by which an aggrieved party may gain judicial review of an adverse decision by a zoning appeal board, a petition to the appropriate superior court for a writ of mandamus is the proper remedy.”
Haralson County V. Taylor Junkyard Of Bremen, Inc., 2012 Ga. Lexis 641
“Equitable relief is available in zoning cases to correct inequities created by a landowner's good faith reliance on governmental action that results in the expenditure of substantial unrecoverable funds and to preclude municipalities from enforcing their land use regulation or from denying relief from the terms of that regulation.”
In Re Appeal Of Baird, Nos. 536 C.D. 2012, 537 C.D. 2012, Commonwealth Court Of Pennsylvania, 2013 PA. Commw. Unpub. LEXIS 187 (2013).
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Specific Relief
City of Richmond v. Randall
NOTES AND QUESTIONS
Appellate court ordered site-specific relief for a methadone clinic.
Habit OPCO v. Borough of Dunmore, 17 A.3d 1004 (Pa. Commw. Ct. 2011).
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PROBLEM
JUDICIAL REVIEW OF ZONING DISPUTES
A PRELIMINARY NOTE ON JUDICIAL REVIEW
Krause v. City Of Royal Oak
NOTES AND QUESTIONS
“Abuse of discretion” standard of review applied where trial court denied preliminary injunction in zoning enforcement case.
Town of Coventry v. Baird Props., 13 A.3d 614, 2011 R.I. LEXIS 156 (R.I. 2010).
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A NOTE ON FACIAL AND AS-APPLIED CHALLENGES: NECTOW v. CITY OF CAMBRIDGE
D. Zhou, Rethinking the Facial Takings Claim, Yale Law Journal, Vol. 120, 2011,
available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748847
Facial challenge under RLUIPA was upheld in Elijah Group Inc. v. City of Leon Valley, 2011 U.S. App. LEXIS 11966 (5th Cir. Tex. June 10, 2011).
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A facial challenge in many states cannot be brought as part of an administrative appeal of a local zoning decision.
See, Smith v. Richfield Township Board of Zoning Appeals, 2012 Ohio App. Lexis 1032.
“When considering a facial challenge to the constitutionality of an ordinance, we consider only ‘the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.]’ ’To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’”
Browne v. Tehama, 213 Cal.App.4th 704, 153 Cal. Rptr. 3d 62, 2013 Cal. App. LEXIS 90 (2013).
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RECURRING ISSUES IN ZONING LAW
Density and Intensity of Use
California has a statutory provision euphemistically referred to as the “no-net-loss-in-density law” codified at Government Code section 65863, subdivision (b): “No city … shall… reduce… the residential density for any parcel to, or allow development of any parcel at, a lower residential density, …unless the City… makes written findings supported by substantial evidence of ….”
Quartz Hill Cares v. City of Lancaster, 2012 Cal. App. Unpub. LEXIS 2026.
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A NOTE ON THE BUSINESS OF DEVELOPMENT
Density Restrictions: Large Lot Zoning
Johnson v. Town of Edgartown
N
Large-lot zoning to stop affordable housing challenged.
Berry v. Volunteers of Am., Inc., 2011 La. App. LEXIS 482 (La. App. 5th Cir. Apr. 26, 2011).
OTES AND QUESTIONS
The principal case in the book, Johnson v. Town of Edgartown, at Page 271 is one of those cases that keeps on giving. The Commissioner of Internal Revenue claimed certain federal income tax deficiencies against the Herring Creek Acquisition Co., L.L.C. and the Nature Conservancy as related in a recent tax court memo The complexities of the tax situation demonstrate how difficult it is sometimes to structure charitable contributions of land.
Tax Court Memo 2012-8, Marshall and Judith Cohan v. Commissioner of Internal Revenue, 2012 Tax Ct. Memo LEXIS 8.
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Site Development Requirements as a Form of Control
NOTES AND QUESTIONS
Upheld waiver of floor area ratio waived to permit density bonus for affordable housing.
Wollmer v. City of Berkeley, 2011 Cal. App. Unpub. LEXIS 1785 (Cal. App. 1st Dist. Mar. 11, 2011).
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A NOTE ON OTHER APPROACHES TO REGULATING DENSITY AND INTENSITY OF USE
Residential Districts
A “private motocross riding track” is not a “outdoor recreation” permitted in a single-family zone.
Cross-Up, Inc. v. Zoning Hearing Bd., 12 A.3d 497 (Pa. Commw. Ct. 2011).
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Residential density bonuses are reviewed critically in a recent article “Cracking The Foundation: Highlighting and Criticizing The Shortcomings of Mandatory Inclusionary Zoning Practices,” an article by Michael Floryan in The Pepperdine Law Review (February 2, 2012) available at http://tinyurl.com/c9oxlzl
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Separation of Single-Family and Multifamily Uses
Nadav Shoked, The Reinvention of Ownership: The Embrace of Residential Zoning and the Modern Populist Reading of Property 28 Yale J. on Reg. 91 (2011).
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Single-Family Residential Use: The Non-Traditional “Family”
Village of Belle Terre v. Boraas
NOTES
The South Carolina Supreme Court, acknowledging the Belle Terre decision, upheld an ordinance in the City of Columbia restricting all properties zoned as single family units to not more than three unrelated persons. The court was swayed in some measure by the fact that the community had colleges and universities in the area and that the zoning provision restricting the number of unrelated persons was reasonably related to “controlling the undesirable qualities associated with ‘mass student congestion’”.
McMaster v. Columbia Board of Zoning Appeals, 2011 SC LEXIS 394.
Believe it or not, Belle Terre gets cited in a fracking case in which the court upheld the constitutionality of the state’s statute preempting regulation of fracking by local governments. In stating that “zoning is an extension of the concept of a public nuisance which protects property owners from activities that interfere with the use and enjoyment of their property,” the court cites City of Edmonds v. Oxford House, Inc., 514 US 725, 732-33 (1995) quoting from Euclid v. Ambler Realty and the Belle Terre decision and going on to describe the purposes of local zoning before concluding “the interests that justify the exercise [of] the police power in the development of oil and gas operations and zoning are not the same.”
Robinson Township v. Commonwealth, 2012 Pa. Commw. LEXIS 222.
In Bozeman, Montana “The definition of ‘household’ explicitly excludes common housekeeping units comprised of more than four unrelated people or more than four handicapped people.” Held, not discriminatory on its face, though Authorized Uses Section was.
Montana Fair Housing v. Bozeman, 854 F.Supp.2d 832, 2012 U.S. Dist. LEXIS 25729 (USDC D. Mont. 2012)(“ Because subsection (A) of the statute does not treat groups of related disabled people any differently than any other related group of people, Fair Housing has failed to establish that the Household Definition Section is discriminatory on its face…)
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City of Cleburne v. Cleburne Living Center
NOTES AND QUESTIONS
City violated the Fair Housing Act in refusing to waive the definition of family in the zoning ordinance to enable group home operator to house eight children and two house parents in a single family unit.
King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. 123 (Ark. 2011).
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The City of Cleburne decision is discussed in a recent article by Susannah W. Pollvogt, “Unconstitutional Animus” Fordham L. Rev. 81 (2012) available at http://works.bepress.com/susannah_pollvogt/3
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A NOTE ON FAMILY ZONING IN THE STATE COURTS
Use of the term “functional equivalent of a traditional family” in zoning is not void for vagueness.
Matter of Morrissey v. Apostol, 2010 N.Y. Slip Op 6714 (N.Y. App. Div. 3d Dep’t (2010).
Summary judgment denied and question left for trial as to whether a group home for young women with drug addiction and emotional disorders is a “functional equivalent of a family” under local zoning.
Candlehouse, Inc. Town of Vestal, 2013 U.S. Dist. LEXIS 63353 (USDC NDNY 2013).
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A NOTE ON ALTERNATIVES TO SINGLE-FAMILY ZONING: THE ACCESSORY APARTMENT
Upheld division of a house into two units housing a total of 11 Bowdoin students under accessory apartment regulations, rejecting boarding house argument.
Adams v. Town of Brunswick, 987 A.2d 502, (Me. 2010).
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Manufactured Housing
“Trailer park” distinguished from manufactured housing.
Smith County Reg’l Planning Comm’n v. Hiwassee Vill. Mobile Home Park, LLC, 304 S.W. 3d 302 (Tenn. 2010).
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PROBLEM
A NOTE ON ZONING AND THE ELDERLY
“Four mobilehome park owners in Yucaipa, California appeal the dismissal of their suit under the Fair Housing Amendments Act of 1988 ("FHAA") challenging a city zoning ordinance prohibiting any mobilehome park currently operating as senior housing from converting to all-age housing. Because the FHAA is silent on whether such senior-housing zones are permissible and because federal regulations allow for them, we AFFIRM the judgment of the district court.”
Putnam Family Partnership v. City of Yucaipa, Cal., 673 F. 3d 920 (9th Cir 2012)
See Wollmer under D.1.b above
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PROBLEM
A NOTE ON HOME OCCUPATIONS
Pet sitting “kennel-like” business operated out of a single-family home is not a home occupation.
Lariviere v. Zoning Bd. of Review, 2011 R.I. Super. LEXIS 65 C.R.I. Super Ct. 2011).
A dog grooming business in a garage is not a home occupation.
Lowney v. Zoning Board of Appeals Of The Black Point Beach Club Association, 2013 Conn. App. Lexis 353 (Ct. App. Ct 2013)
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Sometimes it is the local regulations which end up controlling whether an activity is a home occupation or not. In a case that will likely prove to be an outlier in most jurisdictions, the Appellate Division of the Superior Court in New Jersey recently held that a 2,150 square foot garage constructed accessory to a residence and in which the owner operated a welding business was a home occupation under the local regulations. The lot, at 6.4 acres, was non-conforming in the zone which required 7.5 acres for a single family home and the three-bay garage at 2,150 square feet was almost half again as large as the 1,670 square foot home on the site. As the court so aptly put it: “The meaning of ‘home occupation’ requires interpretation of the language of the municipal ordinance at issue in a given case.”
Colambro v. Lebanon Township ZBA, 424 N.J. Super 501 (2012).
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Commercial and Industrial Uses
Roderick M. Hills, Jr. & David Schleicher, The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, 77 U.Chi. L. Rev. 249 (2010).
A winery at a single-family home is an agricultural use exempt from any regulation under Ohio law.
Terry v. Sperry, 956 N.E.2d 276 (Ohio 2011).
Outside storage of plumbing pipes at a single-family home on a lot zoned industrial is an illegal home occupation and not a permitted industrial use.
City of Green v. Joel Helms, 2013 Ohio App. LEXIS 1974, 2013-Ohio-2075( Court of Appeals of Ohio, Ninth District, Summit County 2013).
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In the Zoning Ordinance
BP America, Inc. v. Council of The City Of Avon
NOTES AND QUESTIONS
“The Downtown Business district (B-3) is intended to apply to the Village's downtown business district and Village center. This area is typified by small lots, and buildings with minimal setbacks. The downtown business district is intended to offer greater flexibility in area requirements and setback requirements than other districts in order to promote the reuse of buildings and lots and the construction of new developments in the downtown business district consistent with the existing scale of development. The character, appearance and operation of any business in the downtown district should be compatible with any surrounding areas.”
Gage Inc., LLP, v. Vill. of Sister Bay, 2011 Wisc. App. Lexis 538 (Wis. Ct. App. July 6, 2011).
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Loreto Development Co., Inc. v. Village Of Chardon
NOTES AND QUESTIONS
Formula retail:
Dina Botwinick et al., Saving Mom and Pop: Zoning and Legislating for Small and Local Business Retention, 18 T. L. & Pol’y 607 (2010).
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At Page 333 of the Casebook there is a long quote from the Wall Street Journal. That matter involving the activities of the Saint Consulting Group was played out further in the U. S. District Court for the District of Massachusetts in 2012 as reported in a decision in which the court concluded that the insurance company was not obligated to defend The Saint Consulting Group from claims against the company. Also, on March 27, 2012, Federal District Court Judge Harry D. Leinenweber of the United States District Court for the Eastern District of Illinois issued a decision in Rubloff Development Group v. SuperValu (doing business as The Saint Consulting Group), granting the defendants’ motions to dismiss. The claims alleged federal and state anti-trust violations, RICO violations, tortious interference with prospective economic advantage, common law fraud, abuse of process and conspiracy to commit overt, tortious and unlawful acts. The court said that Saint and SuperValu are protected in their First Amendment right to petition the government and under the Noerr-Pennington Doctrine. This is a remarkable decision worth reading in the context of The Wall Street Journal report and it probably describes the outer limits of the Noerr-Pennington Doctrine in the context of business activities affecting land use decision making.
For the next and hopefully final chapter in the story, see Rubloff Development Group, Inc. V. Supervalu, Inc., 2013 U.S. Dist. LEXIS 15239 (USDC ND Illinois 2013
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The City of San Francisco Planning Department has an excellent discussion of formula retail use available on-line entitled “Chain Stores (Formula Retail Use)” available at http://www.sf-planning.org/index.aspx?page=2839
A trial court in New York late in 2011 upheld a “Formula Fast Food Restaurants” regulation in the Village of Victor, New York. Meade Square Commons, LLC v. Village of Victor (2011).
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A NOTE ON “BIG BOX” RETAIL ZONING
Self-storage facility not permitted in the Village Commercial District: “In the same vein, the Environmental Courts construction allowing any non-wholesale commercial establishment would provide little meaningful limitation on the size or type of business facility allowed in the VC District, except to exclude wholesalers. Carried to its logical end, the court's definition would allow so called big-box stores or other large-scale businesses to intrude into the village environment, thereby undermining the VC District's express purpose. Applicant's facility itself provides an example of how over-inclusive the standard is. The storage complex would consist of three stand-alone buildings, with multiple bays and traffic at potentially any hour of the day or night. There would be no retail activity or character, residentially compatible or otherwise, in such a facility. Permitting this facility is inconsistent with both the language and purpose of the Bylaws.”
In re Tyler Self-Storage Unit Permits, 2011 VT 66 (Vt. 2011).
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One of the significant problems coming out of the real estate recession has been the abandonment of big box stores. What can be done with them through retail reuse, adaptive reuse, demolition and redevelopment, and demolition and re-greening is described in a recent article.
Sarah Schindler, “The Future of Abandoned Big Box Stores: Legal Solutions To The Legacies Of Poor Planning Decisions,” University of Colorado Law Review, Vol. 83, pp 471-548 (2012).
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A NOTE ON INCENTIVE ZONING AND SPECIAL DISTRICTS IN DOWNTOWN AND
COMMERCIAL AREAS
Special districts sometimes require covenants and restrictions in their implementation and later changes in zoning can run afoul of those restrictions.
See, CMR D.N. Corp. v. City of Phila., 2011 U.S. Dist. LEXIS 25396 (E.D. Pa. Mar. 10, 2011).
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Control of Competition as a Zoning Purpose
Hernandez v. City Of Hanford
NOTES AND QUESTIONS
The flip side of zoning to control competition is the federal intervention in matters of local land use to increase competition through the Telecommunications Act. “Congress enacted the TCA so as to foster competition and to accelerate the deployment of telecommunications services around the country. A component of the TCA places limitations on local zoning boards, such that local governments cannot unreasonably discriminate among service providers, cannot prohibit or have the effect of prohibiting the provision of personal wireless services, cannot fail to act in a timely manner, and cannot deny a request to provide services without substantial evidence.”
Arcadia Towers LLC v. Colerain Twp. Bd. of Zoning Appeals, 2011 U.S. Dist. LEXIS 27445 (S.D. Ohio Mar. 15, 2011).
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PROBLEM
Antitrust Problems
NOTES AND QUESTIONS
Noerr-Pennigton immunity not extended to malicious prosecution action where argument was untimely and issues could be decided on other grounds.
Baldau v. Jonkers, 2011 W. Va. LEIS 13 (W. Va. Mar. 10, 2011).
Parker doctrine protects local government “The Parker doctrine or "state-action" doctrine shields state governments from antitrust liability for anti-competitive actions taken in their capacity as sovereigns.”
Comprelli v. Town of Harrison, 2011 U.S. Dist. LEXIS 5872 (D. N.J. Jan. 21, 2011).
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Districting and Nonconforming Uses
A NOTE ON THE HISTORY OF NON-CONFORMING USES
Conforti v. City Of Manchester
NOTES AND QUESTIONS
Marina and yacht club are not “tandem” uses for determining whether nonconforming use was expanded.
Campbell v. Tiverton Zoning Bd., 15 A.3d 1015 (R.I. 2011).
The are hundreds of nonconforming uses cases every year, many of them entertaining oddities. One is those is the case of whether a “tree house” (really an elevated storage building: “16 feet high, with doors on the first and second levels, and a pulley for hoisting objects to the top level”) was a legal nonconformity. It was determined to be illegal.
Buckley v. City of Solon, 2011 Ohio 3468 (Ohio Ct. App., Cuyahoga County July 14, 2011).
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Eighteen years after a couple moved in next door to a single family home with a non-conforming accessory use, they complained to the zoning enforcement officer. The non-conforming use was upheld by the trial court but reversed on appeal which noted that the property which had been used as a publishing house ceased to be used as such in 1986 and then began as a machine shop use and given that fact, the trial court judge said the appellate court “was required to conclude that the property lost its protection as a prior non-conforming use.” The court cited a three-part test where the use is changed: “(1) Whether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect. (2) Whether there is a difference in the quality or character, as well as the degree, of use. (3) Whether the current use is different in kind in its effect on the neighborhood.”
Hambley v. Dalzell, 2012 Mass. App. Unpub. LEXIS 189.
The Supreme Judicial Court of Massachusetts recently addressed the issue of the expansion of a non-conforming use in a case involving a non-conforming mobile home park that did not seek to expand its land area, but wanted to increase the number of units from 65 to 79 mobile homes. The court upheld the trial court’s decision that the small increase in density would not have any impact on the neighborhood through the addition of traffic and that the non-conformity was in the lot area, not the density or number of units and, therefore, the proposed increase from 65 to 79 units was not an expansion of a non-conforming use.
Shirley Wayside Limited Partnership v. Zoning Board of Appeals of Shirley, 461 Mass. 469 (2012).
Regardless of who brings the claim, courts have consistently held that there is a heavy burden in proving abandonment of a non-conforming use. The Court of Appeals of the State of Washington recently addressed this issue in an instance where a neighbor claimed that a duplex had been abandoned and that could only be continued as a single family unit. The court stated: “A legal non-conforming use is a vested right. The right may be lost by abandonment or discontinuance, but a party so claiming has a heavy burden of proof. Abandonment or discontinuance is a question of fact, and ordinarily depends upon a concurrence of two factors: ‘(a) an intention to abandon; and (b) an overt act, or failure to act, which carries the implication that the owner does not claim or retain any interest in the right to the non-conforming use.’” The court held that the party claiming the abandonment had not met its burden of proof.
Rosema v. City of Seattle, 2012 Wash. App. LEXIS 161.
There are many, many cases every year about expansion and intensification of non-conforming uses. One of the more interesting decisions in the last year is one from Massachusetts where the Appeals Court held that the vertical expansion of a non-conforming footprint for a single-family home was not as of right and might not be reasonably required to make economic use of the property. The case is a classic one because it involves an older, smaller non-conforming home that the owner attempted to reconstruct, but found that it was uneconomic to do so. Instead, he tore it down and built new, unfortunately expanding the footprint and making the building higher than the former one. One of the interesting aspects of the decision is the remedy: should there be a tear down order or not?
Shepherd v. Zoning Board of Appeal of Boston, 81 Mass App. Ct. 394 (2012)
While courts are reluctant to overturn local land use decision making, they generally do look with disfavor on use variances and consistent with that, an appellate court in New York recently set aside the local zoning board’s granting of a use variance because the “record was devoid of any evidence, in dollars and cents form, of Veronicas Realty’s inability to realize a reasonable return under the existing permissible uses ….” Because of that, the court found that there was no rational basis for the ZBA’s finding that the property could not yield a reasonable return without the use variance. Edwards v. Davison, 94 Ad. 3rd 883 (NY App. Div. 2012).
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CITY OF LOS ANGELES v. GAGE
NOTES AND QUESTIONS
NOTE ON ALTERNATIVE STRATEGIES FOR ELIMINATING NONCONFORMING USES
Truly bothersome uses, like nude dancing and medical marijuana dispensaries, are often amortized on rather short timeframes. A mandatory amortization requirement for nude dancing establishments was upheld after changes were made in certain provisions in Jacksonville Prop. Rights Ass’n v. City of Jacksonville, 635 F.3d 1266 (11th Cir. Fla. 2011.)
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Uses Entitled to Special Protection
A Massachusetts federal district court found that an adult use ordinance was unconstitutional because it gave excessive discretion to the local board of appeals. The decision largely turned on the use of the word “may”. Showtime Entertainment LLC v. Amendolia, 2012 U.S. Dist. LEXIS 38869.
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Free Speech-Protected Uses: Adult Businesses
City Of Renton v. Playtime Theatres, Inc.
NOTES AND QUESTIONS
Citing Renton, court upheld prohibition on adult establishment in downtown development authority area where 27 other sites were available.
Big Dipper Entm’t, LLC v. City of Warren, 641 F.3d 715 (6th Cir. Mich. 2011).
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A typical question in the regulation of adult entertainment uses is whether there are sufficient other outlets for the activity when the activity is restricted or prohibited. The United States District Court for the District of Minnesota this last year decided a case from the City of Florence, Minnesota, a remarkably small town, just 0.2 square miles, all of it residential and consisting of 16 single family homes, a small park, and a small parcel owned by the City. There are only 36 residents of Florence; 5 of them are school-age children. The local zoning ordinance restricted adult-oriented businesses to a commercial district and the required separation of 250 feet between such businesses and from any residence, liquor license establishment, “daycare facility, school, library, park, playground, state or federal wildlife area or preserve, religious institution or other public recreational facility.” The operator of a sexually-oriented business which was the subject of an enforcement action to close it down, sued and moved for summary judgment principally on the ground that there were not adequate other locations. The federal district court denied the plaintiff’s motion for summary judgment finding that the City had demonstrated its zoning ordinances were content-neutral, that they furthered a substantial government interest, and that they did not deny the operator of the adult business reasonable alternative channels for that business because 73% of the commercial land in the immediate county was available for adult uses. The court found the City’s “small size, lack of resources, limited infrastructure and its ‘interest in attempting to preserve the quality of urban life… must be accorded high respect’” quoting from Renton 475 US at 49.
Peterson v. City of Florence, 2012 U.S. District Lexis 107018
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Religious Uses
Civil Liberties For Urban Believers, Christ Center, Christian
Covenant Outreach Church v. City Of Chicago
NOTES AND QUESTIONS
In a case of “RLUIPA meets billboard law” the Court of Appeals of Kentucky found a compelling governmental objective in restricting billboards and upheld limitations on billboards with religious speech along certain highways as reasonable time, place and manner restrictions, and held that such restrictions did not create a substantial burden under RLUIPA.
Harston v. Commonwealth Transp. Cabinet, 2011 Ky. App. LEXIS 40 (Ky. Ct. App. Mar. 4, 2011).
Requiring a religious use to get a conditional use permit, whereas bars did not need a permit, violated the equal terms provision.
Centro Familiar Cristiano Buenas Nuevas v.City of Yuma, 2011 U.S. App. LEXIS 14247 (9th Cir. Ariz. July 12, 2011).
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Ripeness continues to be an issue in RLUIPA cases. Late in 2011, the Ninth Circuit handed down a decision finding that a religious institution’s RLUIPA claim was not ripe for adjudication because it had not filed at least one use permit application.
Guatay Christian Fellowship v. County of San Diego, 2011 U.S. App. Lexis 25581
The latest on ripeness is Temple B'nai Zion, Inc., City Of Sunny Isles Beach, Florida, 2013 U.S. App. LEXIS 18091 (11th Cir. 2013) holding that Williamson County does not apply in an RLUIPA case where “the plaintiff alleges that the mere act of designating his or her property historic was motivated by discriminatory animus…”
For the latest developments in RLUIPA, see www.RLUIPA-Defense.com
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MIXED-USE ZONING, FORM-BASED ZONING, AND TRANSIT-ORIENTED DEVELOPMENT
Mixed-Use Development
Mixed use development held inconsistent with certain zoning and plan requirements.
Haro v. City of Solana Beach, 195 Cal. App. 4th 542 (Cal. App. 4th Dist. 2011).
Controversial and complex mixed-use remanded.
Durant v. District of Columbia Zoning Commission, 2013 U.S. Dist. LEXIS 40905
(DC: Court of Appeals 2013)
A useful overview of form-based codes is California Local Government Commission, “Form-Based Codes: Implementing Smart Growth( (undated) http://www.lgc.org/freepub/docs/community_design/fact_sheets/form_based_codes.pdf
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Transit-Oriented Development
For issues arising out of Joint Development Agreements for TOD, see
Greenbelt Ventures, LLC v. Wah. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 60824 (D. Md. June 17, 2011).
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The Miami 21 Code, a form-based code, received the American Planning Association's 2011 National Planning Award for Best Practice (among other national awards). Nancy Stroud was the legal counsel. The code is the first city-wide form based code in a major American city. http://www.miami21.org .
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New Urbanism, Neotraditional Development, Form-Based (and Smart) Codes
See: Garnett, Restoring Lost Connections: Land Use, Policing, and Urban Vitality, 36 Okla. City U. L. Rev. 253 (2011).
and
Selmi, The Contract Transformation in Land Use Regulation, 63 Stan. L. Rev. 591 (2011).
Denial of new urbanism zoning proposal upheld.
Snowden v. City of Wilmore, Kentucky, 2013 Ky. App. LEXIS 9 (KY Court of Appeals (2013).
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Form-based codes have been criticized as possibly leading to “an ersatz Urbanism”
L.P. Inniss, “Back to The Future: Is Form Based Code An Efficacious Tool For Shaping Modern Civil Life?”, Cleveland-Marshall Legal Studies Paper No. 07-135 (2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962354
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