Eleventh Circuit Dismisses Claims by Toucan Sellers in Florida Zoning Case

Foley v. Orange County, 2016 WL 361399 (11th Cir.) involved a zoning enforcement action taken against Plaintiffs by Defendant County for having unpermitted accessory buildings that housed a toucan-raising operation, which was upheld through the local administrative process and state courts. Plaintiffs then filed a federal action making various state and federal law claims against county employees in their individual and official capacities, challenging the denials and the county authority to regulate and asserting various civil rights claims. Both parties moved for summary judgment and the court granted partial summary judgment on one state claim to plaintiffs, while granting summary judgment to the county on the remaining claims and finding immunity for county employees. Plaintiff appealed summary judgment on their substantive due process, equal protection, compelled and commercial speech and illegal search and seizure claims. The court reviewed the summary judgment decisions de novo. The court said it would dismiss a claim, inter alia, if it were wholly insubstantial or frivolous, i.e., if had no plausible foundation or a prior Supreme Court decision clearly forecloses the claim.

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Looking Beyond Goal 1: The Ever Changing Role of Public Participation

Oregon’s Planning Goal 1, Citizen Involvement, requires citizen involvement “in all phases of the land use planning process.” The Goal requires local governments to provide for public input when land use plans and regulations are adopted and amended. Oregon law also requires, among other things, notice and opportunity to be heard during land use proceedings. Although one of the original land use goals, Goal 1 is rarely used or relied on by LUBA or the courts as a basis to overturn a local government decision; however, efforts to change its scope are constant. Oregon and Washington courts have recently had an opportunity to consider some creative efforts to alter the scope of public participation.

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Borrowers Can Run but They Can’t Hide – Deficiency Judgments After Washington Receivership Sales

When a borrower defaults on his or her commercial real estate loan in Washington, the bank has a number of options for collecting the debt.   Lenders usually secure their real estate loans with deeds of trust, which gives the lender the option to foreclose on the collateral either non-judicially through a Trustee’s Sale, or non-judicially through a judicial foreclosure and subsequent Sheriff’s Sale.    In each of those situations the rules governing the borrower’s and guarantor’s continuing liability on the loan after the sale differ.

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Pennsylvania Court Finds Hospice Is Single Family Use

Hartman v. Zoning Hearing Board of Cumru Township, 2016 WL 555676 (Pa. Cmwlth.) involved a challenge to respondent’s approval of an application by the St. Francis Home for a residential building permit in a single family zone to provide treatment to up to three terminally ill patients in a family-like environment, each having their own bed and bath rooms with a common living, kitchen, and dining area. Volunteers would provide for comfort and care, but the residents would have their own support services for such items as nursing and healthcare. An adjacent landowner appealed the grant of these and related permits and respondent found the use to be lawful in a single-family zone. The trial court affirmed.

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Eleventh Circuit Says Burden on City to Justify Limitation on Free Expression in Tattooing

Buehrle v. City of Key West, 813 F3d 973 (11th Cir., 2015) was a challenge to Defendant’s ordinance limiting the number of tattoo parlors in its historic district.  When Plaintiff challenged the ordinance in state court, Defendant removed the case to federal court.  On cross motions for summary judgment the trial court accepted Plaintiff’s contention that tattooing was protected First Amendment expression, but  also found the ordinance to be a reasonable time, place and manner restriction.

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Divided Sixth Circuit Panel Reverses Summary Judgment to City in RLUIPA Case

Tree of Life Christian Schools v. City of Upper Arlington, 2016 WL 2897658 (6th Cir.) involved Defendant’s denial of a rezoning to accommodate a religious school based on a master plan policy to maximize income tax revenues from commercial uses. Plaintiff claimed a violation of the “equal terms” provisions of RLUIPA by which religious assemblies or institutions may not be treated on less than equal terms compared to non-religious counterparts. The Sixth Circuit concluded this question to be factual, rather than legal.  Continue Reading

Important LUBA Order on Comprehensive Plan Amendments Issued

HLA+logo+design+finalHousing Land Advocates (HLA) recently filed an appeal in the Land Use Board of Appeals (LUBA) against the City of Happy Valley in opposition to a comprehensive plan amendment and zone change. The application requested a downzone from multi-family to a single-family residential zone and approval of a 31-lot subdivision. The substantive issue in the case is whether the City made adequate Goal 10 findings related to the availability of land for affordable housing with the City (no such findings were made by the Planning Commission). The City of Happy Valley filed a Motion to Dismiss claiming that HLA did not exhaust its local appeal remedies prior to filing the appeal. However, HLA had submitted a detailed letter explaining that no local appeal was required for a comprehensive plan amendment because state law requires the local governing body – in this case the City Council – to make a final decision. HLA declined the City’s offer to pay a $1000 appeal fee and $2500 deposit for the City’s attorney’s fees to appeal the Planning Commission’s decision to the City Council. The City Council did not respond to HLA’s letter and the LUBA appeal followed.

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Third Circuit Finds Federal Claims Alleging Harassment by Zoning Officials Survives Motion to Dismiss

Ecotone Farm LLC v. Ward, 2-16 WL 335837 (3rd Cir.) involved a long-running dispute between Plaintiff Ecotone Farm and its principal, Huff, and Harding Township, New Jersey, the Township Engineer, Fox, and Huff’s neighbor, Ward. Huff bought property over which Ward had an ingress-egress easement and there were disputes over the use of that easement. Ward made baseless reports to environmental authorities over the use of Huff’s property and, as a member of the Township Committee, its governing body, Ward instructed Fox to harass Huff, allegedly in consideration for his reappointment as Township Engineer and continuing engineering fees for managing the harassment. Ward is a real estate broker and allegedly steered clients to Fox.

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The Gaping Hole in Recreational Immunity Under the Oregon Public Use of Lands Act

Jogger at a parkThe Oregon Public Use of Lands Act, ORS 105.672 et seq., provides immunity from tort liability to private and public owners of land that is made available to the public for recreational purposes.  The purpose of the Act is to encourage both private and public landowners to open their lands to the public.  In Johnson v. Gibson, 358 Or 624 (2016), the Oregon Supreme Court answered the question posed to it by the Ninth Circuit Court of Appeals: Does the recreational immunity provided in the Public Use of Lands Act extend to employees of a landowner?  The Oregon Supreme Court found that it did not.

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The Roots of Dispute in Washington

Man cutting treeWhat are the most common sources of disputes between neighbors?  Children?  Noise?  Fences? Dogs?  Trees?  That’s the top five according to that important American sociological barometer, TV’s “Family Feud”.  Topic number five recently made it to the docket of Division I of the Washington State Court of Appeals.

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