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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Hawai’i Federal Court Decides Summary Judgment Motions in State Land Use Reclassification Case

Bridge Aina Le’a v. Hawaii Land Use Commission, 2016 WL 797567 (D. Haw.) grew out of Defendant Commission’s decision to reclassify a parcel from urban to agriculture, an action that may be taken only by the state agency. Ultimately the Hawai’i Supreme Court invalidated this action. In this separate federal action claiming just compensation for a regulatory taking, Defendants Commission and its members moved for summary judgment.

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The New Greenways: The City of Hillsboro Adopts Recreational Marijuana Regulations

Marijuana facilityOn May 3, 2016, the City of Hillsboro adopted new land use regulations in preparation for recreational marijuana uses of the product.  The city’s new code allows marijuana production facilities only in the General Industrial (I-G) and Industrial Park (I-P) zones.  However, such production facilities are not allowed in the city’s recently adopted Industrial Sanctuary (I-S) or the light rail industrial zones.  As a practical matter, this limitation in the I-S zone may turn out to be smart planning as the city has envisioned high energy users at these locations, and marijuana production could have had adverse impacts to energy infrastructure and availability in the area.

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California Appellate Court Uphold Los Angeles Billboard Regulations

Billboard against sky background day imageLamar Central Outdoor, LLC v. City of Los Angeles, 2016 WL 911406 (Cal. App.) constituted another round between cities and billboard companies over the limits of regulation. In 2002, defendant banned most billboards in the City, except for those allowed in a certain planned development zone and those advertising goods and services sold on the premises and for noncommercial billboards.   The City also banned alterations to existing billboards.   Exceptions to the ban included billboards allowed under a development agreement, special zoning district, and to work located primarily in a public right of way (such as a bus or transit stop).   The City’s sign code rests on traffic safety and aesthetics.

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Ninth Circuit Finds Yuma May Be Liable for Discriminatory Zoning Actions

Yuma1Avenue 6E Investments, LLC v. City of Yuma, 2016 WL 1169080 (9th Cir.), involved the denial of a rezoning, notwithstanding the recommendation of approval by both the professional planning staff and the City’s Planning and Zoning Commission. Plaintiff developers brought these proceedings under both the Equal Protection Clause and the federal Fair Housing Act (FHA), alleging the denial was both intentional and also disproportionally deprived Hispanic residents of housing opportunities and perpetuated segregation. The subject denial was the first in three years and 76 rezoning applications.

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