Justia Zoning, Planning & Land Use Opinion Summaries

The Supreme Court reversed the decision of the trial court and set aside the award of the condemnation commissioners to the Helmick Family Farm, LLC for a taking of slightly more than two acres of land along with some easements, holding that the reasonable probability of rezoning of property taken through condemnation may be relevant to the property's fair market value and that Helmick presented sufficient concrete facts to warrant submission of the question of reasonable probability of rezoning to a jury.On appeal, Helmick argued that exclusion of certain evidence prevented the commissioners from considering probative evidence concerning the fair market value of the land at issue. The Supreme Court agreed, holding (1) ample authority supports the admissibility of evidence that the property taken has a reasonable probability of rezoning; (2) nothing in prior cases forecloses the admissibility of such evidence; (3) there are certain parameters concerning such evidence; and (4) Helmick presented sufficient concrete facts to warrant submission of the question of reasonable probability of rezoning to a jury. View "Helmick Family Farm v. Commissioner of Highways" on Justia Law

Englewood amended its ordinances to address aggressive antiabortion protests that had been regularly occurring outside of a health clinic that provided reproductive health services, including abortions. Some of the “militant activists and aggressive protestors” support violent reprisal against abortion providers. The ordinance restricted the use of public ways and sidewalks adjacent to healthcare facilities during business hours to persons entering or leaving such facility; the facility's employees and agents; law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents within the scope of their employment; and persons using the public way solely to reach another destination. The ordinance created overlapping buffer zones at qualifying facilities. Turco, a non-aggressive “sidewalk counselor,” filed suit under 42 U.S.C. 1983, alleging violations of her First Amendment rights to freedom of speech, assembly, and association. The district court concluded that the statute was overbroad and not narrowly tailored to serve the government’s interest. The Third Circuit reversed, finding that genuine issues of material fact preclude the entry of summary judgment to either side. The buffer zones’ exact impact on the sidewalk counselors’ speech and the concomitant efficacy of their attempts to communicate is unclear. Turco admitted that she continued to speak with patients entering the clinic. The city considered and attempted to implement alternatives before creating the buffer zone. View "Turco v. City of Englewood" on Justia Law

American Islamic Community Center (AICC) unsuccessfully sought zoning permission to build a mosque in Sterling Heights, Michigan. AICC sued, alleging violations of the Religious Land Use and Institutionalized Persons Act and the First Amendment. The Department of Justice also investigated. The city negotiated a consent judgment that allowed AICC to build the mosque. At the City Council meeting at which the consent judgment was approved, people voiced concerns about issues such as traffic and noise; others disparaged Islam and AICC. Comments and deliberation were punctuated by audience outbursts. Eventually, Mayor Taylor cleared the chamber of all spectators, except the press. The Council voted to settle the case. A consent judgment was entered. Plaintiffs sought a judgment declaring the consent judgment invalid. The Sixth Circuit affirmed summary judgment for the defendants. The defendants fulfilled their procedural obligations; they considered and made findings on the relevant criteria, such as “parking, traffic and overall size,” before voting. The court upheld limitations on speech imposed during the meeting: the relevance rule and a rule forbidding attacks on people and institutions. The city did not “grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” View "Youkhanna v. City of Sterling Heights" on Justia Law

Virginia Run Cove is a privately owned Memphis street that offers access to the parking lots of several businesses, including a Planned Parenthood clinic. It is described on county records as “common area” in a commercial development. Brindley sought a preliminary injunction requiring the city to let him stand near the entrance to this clinic and spread his pro-life message. He argued that Virginia Run Cove was a traditional public forum and that his exclusion from the street violated the First Amendment. The Sixth Circuit reversed the district court’s denial of his motion for a preliminary injunction. The Supreme Court has long held that public streets are traditional public fora. Even when a street is privately owned, it remains a traditional public forum if it looks and functions like a public street. Virginia Run Cove, which connects directly to a busy public thoroughfare, displays no sign of private ownership, and is used by the general public to access many nearby buildings, including the clinic, a gas station, a church, and a U.S. Immigration and Customs Enforcement office, has all the trappings of a public street. View "Brindley v. City of Memphis" on Justia Law

The Eighth Circuit affirmed the district court's judgment upholding the constitutionality of an Arkansas zoning law that prevents adult-oriented businesses from opening within 1,000 feet of schools and other places frequented by children. The court held that Adam and Eve, an adult toy superstore, has not engaged in speech and therefore cannot state a claim under the First Amendment. In this case, Adam and Eve disavowed any express conduct; cited no authority that selling sexually-oriented devices was speech; and expressly and repeatedly rejected that it was an adult-oriented business similar to those found in prior precedent, each of which engaged in protected speech.The court also held that the zoning law was not unconstitutionally vague and does not violate equal protection. The court held that a plaintiff whose conduct is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice, and a substantial portion of Adam and Eve's business involves selling items the statute reaches. Finally, Adam and Eve failed to show that the Act treated it differently than similarly situated entities or lacked a rational basis. View "Adam and Eve Jonesboro, LLC v. Perrin" on Justia Law

The Seventh Circuit affirmed the district court's dismissal of a class action suit challenging the red light camera program of the Village of Lakemoor. Plaintiffs alleged that the violation notices they received were invalid because the notices lack a proper municipal code citation, and that Lakemoor denied them due process by limiting the defenses that can be asserted before a hearing officer to contest a violation.The court held that the process that plaintiffs received was constitutionally sufficient and therefore they have failed to state a federal due process claim. The court also held that plaintiffs' argument that the violation notices were void ab initio failed as a matter of law, because the "specific reference" provision was directory rather than mandatory. Accordingly, plaintiffs' unjust enrichment claim also failed. View "Knutson v. Village of Lakemoor" on Justia Law

Plaintiffs sought a declaration that the City of Lake Oswego had allow them recreational access to Oswego Lake, either from the shoreline of the city’s waterfront parks (from which the city prohibits all water access) or through the city’s residents-only swim park. According to plaintiffs, the common-law doctrines of public trust and public use protected the public’s right to enter the lake, and the city’s restrictions on access to the lake were contrary to those common-law doctrines. Plaintiffs also contended the city’s restrictions violated the Equal Privileges and Immunities guarantee of the Oregon Constitution. Defendants were the City of Lake Oswego the State of Oregon, and the Lake Oswego Corporation (which held title to riparian rights to the lake). The case reached the Oregon Supreme Court following a summary judgment in which the trial court assumed that the lake was among public waterways to which the doctrine of public trust or public use applied, but held that neither those doctrines nor Article I, section 20, entitled plaintiffs to the declarations they sought. The Court of Appeals affirmed, also without deciding whether the lake was a public waterway. The Supreme Court concluded the trial court correctly granted summary judgment on plaintiffs’ Article I, section 20, challenges. The Court also concluded that neither the public trust nor the public use doctrine granted plaintiffs a right to enter the swim park property and that the public use doctrine did not grant plaintiffs a right to access the water from the waterfront parks. But the Court concluded that, if Oswego Lake was among the navigable waterways that the state held in trust for the public, then neither the state nor the city could unreasonably interfere with the public’s right to enter the water from the abutting waterfront parks. Accordingly, the case was remanded for resolution of the preliminary question of whether the lake was subject to the public trust doctrine and, if the lake was subject to that trust, then for resolution of the factual dispute regarding whether the city’s restriction on entering the lake from the waterfront parks unreasonably interfered with the public’s right to enter the lake from the abutting waterfront parks. View "Kramer v. City of Lake Oswego" on Justia Law

The question presented in this case was whether the building inspection fees assessed by defendant, the city of Troy (the City), were “intended to bear a reasonable relation to the cost” of acts and services provided by the City’s Building Inspection Department (Building Department) under the Construction Code Act (CCA). The Michigan Supreme Court held the City’s use of the revenue generated by those fees to pay the Building Department’s budgetary shortfalls in previous years violated MCL 125.1522(1). “While fees imposed to satisfy the alleged historical deficit may arguably be for ‘the operation of the enforcing agency or the construction board of appeals,’ this does not mean that such fees ‘bear a reasonable relation’ to the costs of acts and services provided by the Building Department. Here, the Court was satisfied plaintiffs presented sufficient evidence to conclude that the City established fees that were not intended to “bear a reasonable relation” to the costs of acts and services necessary to justify the City’s retention of 25% of all the fees collected. Furthermore, the Supreme Court determined there was no express or implied monetary remedy for a violation of MCL 125.1522(1). Nonetheless, plaintiffs could seek declaratory and injunctive relief to redress present and future violations of MCL 125.1522(1). Because the City has presented evidence to justify the retention of a portion of these fees, the Supreme Court remanded to the trial court for further proceedings. Lastly, the Supreme Court concluded there was no record evidence establishing that plaintiffs were “taxpayer[s]” with standing to file suit pursuant to the Headlee Amendment. On remand, the trial court was mandated to allow plaintiffs’ members an opportunity to establish representational standing on plaintiffs’ behalf. View "Michigan Association of Home Builders v. City of Troy" on Justia Law

Defendant David Vincelette appealed a the Superior Court decision finding that he committed criminal contempt by violating a January 2016 trial court order that prohibited him from interfering with the Town of Hanover’s efforts to remove debris from a right of way and Town-owned nature preserve. The Town-owned nature preserve was accessed by a deeded right of way that crossed land where defendant resided. In May 2015, the trial court found that the defendant had “placed numerous objects,” including wood pallets, abandoned vehicles, boats, and appliances on the nature preserve and on the right of way such that the right of way was “narrow[ed] . . . to such a width that it is difficult for a vehicle to access the [T]own’s property.” Defendant argued “[t]he court erred by finding that the State presented sufficient evidence that [he] intentionally violated the court’s order.” Finding no reversible error, the New Hampshire Supreme Court affirmed. View "New Hampshire v. Vincelette" on Justia Law

Scott Township passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” Knick, whose 90-acre rural property has a small family graveyard, was notified that she was violating the ordinance. Knick sought declaratory relief, arguing that the ordinance caused a taking of her property, but did not bring an inverse condemnation action. The Township withdrew the violation notice and stayed enforcement of the ordinance. The state court declined to rule on Knick’s suit. Knick filed a federal action under 42 U.S.C. 1983, alleging that the ordinance violated the Takings Clause. The Third Circuit affirmed the dismissal of her claim, citing Supreme Court precedent (Williamson County) that property owners must seek just compensation under state law in state court before bringing a federal claim under section 1983. The Supreme Court reversed. A government violates the Takings Clause when it takes property without compensation; a property owner may bring a Fifth Amendment claim under section 1983 at that time. The Court noted that two years after the Williamson County decision, it returned to its traditional understanding of the Fifth Amendment in deciding First English Evangelical Lutheran Church. A property owner acquires a right to compensation immediately upon an uncompensated taking because the taking itself violates the Fifth Amendment. The Court expressly overruled the state-litigation requirement as "poor reasoning" resulting from the circumstances in which the issue reached the Court. The requirement was unworkable in practice because the “preclusion trap” prevented takings plaintiffs from ever bringing their claims in federal court. There are no reliance interests on the state-litigation requirement. If post-taking compensation remedies are available, governments need not fear that federal courts will invalidate their regulations as unconstitutional. View "Knick v. Township of Scott" on Justia Law