Justia Zoning, Planning & Land Use Opinion Summaries

In White Deer Township, a four-mile gap in Verizon’s wireless coverage overlays Interstate 80; Verizon customers are likely to experience “dropped calls,” “ineffective call attempts,” and “garbled audio.” The area is within Bald Eagle State Forest. A 2000 Pennsylvania moratorium prohibits the construction of cell towers on state forest land, so Verizon’s options were limited. After considering several sites and antenna configurations, Verizon decided to construct a 195-foot monopole topped with a four-foot antenna on privately owned land, comprising 1.9 acres and containing a cabin, shed, pavilion, and privy. Verizon leased 0.0597 acres, in the northeast corner of the property for the tower.The Township then permitted cell towers that complied with a minimum permissible lot size of one acre; cell towers had to be set back “from lot lines and structures a distance equal to the height of the facility, including towers and antennas, plus 10% of such height.” The Zoning Board denied Verizon’s variance applications, finding that Verizon’s alleged hardship was insufficient because it was “not a hardship connected to the capacity for the property to be used reasonably, but rather, the hardship [was connected to Verizon’s] capacity to use the property as desired.” The Third Circuit affirmed summary judgment for Verizon. The denial had “the effect of prohibiting the provision of personal wireless services,” in violation of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B)(i)(II). View "Cellco Partnership v. White Deer Township Zoning Hearing Board" on Justia Law

To improve a stretch of U.S. Route 22 near Altoona, the Pennsylvania Department of Transportation (PennDOT) sought two right-of-way easements from for new drainage pipes, covering less than one-tenth of an acre of Merritt's property. PennDOT initiated condemnation and over Merritts’s objections, acquired title to and possession of the easements. With no success in that state-court proceeding, Merritts filed a federal suit, claiming that PennDOT’s acquisition of the easements and the compensation offered for them violated the U.S. Constitution and Pennsylvania law.The district court dismissed all claims with prejudice, some based on Eleventh Amendment immunity, the remainder under “Burford abstention,” which protects “complex state administrative processes from undue federal interference.” The Third Circuit affirmed in part. The “Ex parte Young” exception to Eleventh Amendment immunity does not allow Merritts’s claims for injunctive and declaratory relief against the PennDOT officials in their official capacities because he does not seek prospective relief from an ongoing violation. Merritts’s section 1983 claims for damages against the PennDOT officials in their individual capacities for allegedly unlawfully acquiring the easements for PennDOT cannot be dismissed under Burford abstention; his claims for damages premised on the allegedly unlawful acquisition of the easements meet the conditions for dismissal under the Rooker-Feldman doctrine, but his claims concerning the denial of just compensation do not. The dismissals on Eleventh Amendment and Rooker-Feldman grounds should have been without prejudice. View "Merritts v. Richards" on Justia Law

The Adorers, an order of nuns whose religious beliefs require them “to protect and preserve Earth,” own property in Pennsylvania. When Transco notified them that it was designing a 42-inch diameter interstate gas pipeline to cross their property, the Adorers explained that they would not sell a right-of-way through their property. Transco sought a certificate of public convenience and necessity. The Federal Energy Regulatory Commission (FERC) published notices and hosted open meetings to discuss the pipeline. The Adorers neither provided comments nor attended meetings. When FERC contacted the Adorers directly, they remained silent. Transco altered the pipeline’s route 132 times in response to public comment. FERC issued the requested certificate, which authorized Transco to use eminent domain to take rights-of-way 15 U.S.C. 717f(c)(1)(A). Transco sought an order of condemnation to take rights-of-way in the Adorers’ property. The Adorers failed to respond to the complaint.Days after the district court granted Transco default judgment, the Adorers sought an injunction under the Religious Freedom and Restoration Act (RFRA) 42 U.S.C. 2000bb-1(c). The Third Circuit rejected the Adorers’ contention that RFRA permitted them to assert their claim in federal court rather than before FERC. After the pipeline was put into service, the Adorers sought damages under RFRA. The Third Circuit affirmed the dismissal of the suit. To permit a party to reserve a claim, the success of which would imperil a FERC decision to certify an interstate pipeline, by remaining silent during the FERC proceedings and raising the claim in separate litigation would contravene the Natural Gas Act’s exclusive review framework. View "Adorers of the Blood of Christ United States Province v. Transcontinental Gas Pipe Line Co., LLC" on Justia Law

A Compact between Pennsylvania and New Jersey created the Delaware River Joint Toll Bridge Commission, which is authorized to “acquire, own, use, lease, operate, and dispose of real property and interest in real property, and to make improvements,” and to "exercise all other powers . . . reasonably necessary or incidental to the effectuation of its authorized purposes . . . except the power to levy taxes or assessments.” The Commission undertook to replace the Scudder Falls Bridge, purchased land near the bridge in Pennsylvania, and broke ground on a building to house the Commission’s staff in a single location. Pennsylvania Department of Labor and Industry inspectors observed the construction; the Commission never applied for a building permit as required under the Department’s regulations. The Commission asserted that it was exempt from Pennsylvania’s regulatory authority. The Department threatened the Commission’s elevator subcontractor with regulatory sanctions for its involvement in the project. The Commission sought declaratory and injunctive relief.After rejecting an Eleventh Amendment argument, the Third Circuit upheld an injunction prohibiting the Department from seeking to inspect or approve the elevators and from further impeding, interfering, or delaying the contractors. Pennsylvania unambiguously ceded some of its sovereign authority through the Compact. The fact that both states expressly reserved their taxing power—but not other powers—indicates that they did not intend to retain the authority to enforce building safety regulations. View "Delaware River Joint Toll Bridge Commission v. Secretary Pennsylvania Department of Labor and Industry" on Justia Law

Palisade sought to build a 150-bed for-profit assisted living facility, which would provide supportive services to memory care patients 0n a 4.96-acre parcel located partially in the city and partially in the borough. The city opposes its construction because the property is in a “one-family residence” zoning district. Palisade argued that the zoning ordinance discriminated on its face against individuals with disabilities by not permitting assisted living facilities as of right in the single-family district and by explicitly allowing them in only one zoning district. The district court granted Palisade a preliminary injunction.The Third Circuit vacated. The zoning ordinance, by failing to include “assisted living facilities” among its permitted uses in the single-family district, but explicitly allowing them in a different district, does not facially discriminate against the disabled in violation of the Fair Housing Amendments Act, 42 U.S.C. 3604. Failure to permit a land use as of right is not tantamount to an express prohibition. There is no indication that disabled status, rather than the building size or the commercial character of the development, is the dispositive trait, singled out for different treatment. The court noted that Palisade did not seek a variance. View "431 East Palisade Avenue Real Estate LLC v. City of Englewood" on Justia Law

The Baptistes filed suit on behalf of a class of homeowner-occupants and renters (about 8,400 households) claiming interference with the use and enjoyment of their homes and loss in property value caused by noxious odors and other air contaminants emanating from the 224-acre Bethlehem Landfill. The Third Circuit reversed the dismissal of the suit. While everyone in the community—including visitors, commuters, and residents—may suffer from having to breathe polluted air in public spaces, the Baptistes have identified cumulative harms that are unique to residents, such as the inability to use and enjoy their outdoor spaces. These injuries are above and beyond any injury to the public; the Baptistes sufficiently alleged a “particular damage” to sustain a private claim for public nuisance. They also stated a claim for private nuisance. Pennsylvania law does not reject a private nuisance claim on the ground that the property affected was too far from the source of the alleged nuisance. Nor does Pennsylvania law condition an individual’s right to recover private property damages on a nuisance theory on the size of the nuisance or the number of persons harmed, as opposed to the nature of the rights affected or the degree of the harm suffered. The question remains whether the Baptistes have sufficiently pleaded a cognizable injury to state an independent negligence claim. View "Baptiste v. Bethlehem Landfill Co." on Justia Law

Planned Parenthood was the site of numerous clashes between opponents and advocates of abortion rights, including bomb threats, vandalism, and blockades. The police deployed an overtime detail to maintain order. After Pittsburgh was declared a financially distressed municipality in 2003, the detail was discontinued. Police were called as needed. The clinic reported an “obvious escalation.” The City Council held hearings on proposed legislation. Many witnesses expounded on the competing interests and expressed a desire to protect both free speech and access to healthcare, including abortions. A member of the police overtime detail attested that the criminal laws were not adequate. The Ordinance states that “[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate” in a 15-foot “buffer zone” outside the entrance of any hospital or healthcare facility. Plaintiffs engage in leafletting and “peaceful . . . one-on-one conversations” conducted “at a normal conversational level and distance” intended to dissuade listeners from obtaining an abortion. The city asserted that the Ordinance applies to this “sidewalk counseling,” The Third Circuit affirmed summary judgment in favor of the city, concluding that the Ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech. The Ordinance prohibits “congregat[ing],” “patrol[ling],” “picket[ing],” and “demonstrat[ing],” saying nothing about leafletting or one-on-one conversations. Nor does it mention a particular topic or purpose. With respect to the listed activities, the Ordinance is “narrowly tailored to serve a significant governmental interest.” View "Bruni v. City of Pittsburgh" on Justia Law

The Authority's Mohegan Sun Arena in Wilkes-Barre holds up to 10,000 people and hosts athletic and other commercial entertainment events. The Arena is set back and fenced apart from the public road. Patrons drive on an access road, park in an Arena parking lot, and then walk on a concrete concourse to the “East Gate” and “West Gate” entrances. “All persons are welcome to express their views” at the Arena; protesters must stand within “designated area[s]” on the concourse and “[h]andouts can only be distributed from within” those areas. The designated areas are two “rectangular enclosure[s] constructed from bike racks,” next to the Gates. The policy bans protesters from using profanity or artificial voice amplification. LCA, an animal rights group wanting to protest circus events, sued under 42 U.S.C. 1983.The trial court found that the Authority was “a public governmental entity acting under color of state law” and entered a preliminary injunction that allowed up to 20 protesters to distribute literature and talk to patrons within a circumscribed section of the concourse; protesters could not block ingress or egress. LCA protested under those terms at 2016-2017 circus performances. At a subsequent trial, LCA introduced evidence that protesters in the "designated areas" attracted little attention and videos showing nonconfrontational interactions with no abnormal congestion. The Arena expressed concerns about unruly protestors and argued that the location condition minimizes congestion and security risks. The court found all three restrictions violated the First Amendment.The Third Circuit reversed in part. The concourse’s function is to facilitate pedestrian movement; a policy sensibly designed to minimize interference with that flow is not unreasonable. The Arena did not establish that the bans on profanity and voice amplification are reasonable. View "Pomicter v. Luzerne County Convention Center" on Justia Law

Matheis, a retired police officer who has successfully managed a diagnosis of PTSD, routinely and safely donated plasma roughly 90 times in an 11-month period at CSL’s plasma donation facility. CSL barred him from making further donations when he brought his new service dog, Odin, to the facility, citing its policy to bar any individual who is prescribed daily more than two separate anxiety medications or who uses a service animal to manage anxiety. The company required Matheis to provide a letter from his doctor stating he had no need for a service animal before it would screen him for further plasma donation. He sued under the Americans with Disabilities Act, 42 U.S.C. 12181. The Third Circuit reversed the district court. Plasma donation centers are “service establishments,” subject to the ADA’s prohibition on unreasonable discrimination. CSL violated the ADA by imposing a blanket ban on prospective donors who use a psychiatric service animal. Public accommodations like CSL must permit disabled individuals to use service animals unless they can show a regulatory exception applies, “based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” View "Matheis, Jr. v. CSL Plasma Inc" 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