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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Washington Supreme Court Finds “Community Bill of Rights” Affecting, Inter Alia, Zoning to Be Outside Initiative Power

Spokane Entrepreneurial Center v. Spokane Moves to Amend the Constitution, 2016 WL 455957 (Wa.) involved the successful gathering of signatures to put a “Community Bill of Rights,” as an amendment of the Spokane Charter, to send the matter to the voters of the city. Petitioners filed a declaratory judgment challenging the validity of the proposal. The trial court found petitioners had standing to challenge the validity of the proposal and that, on the merits, the proposal exceeded the initiative power. The Washington Court of Appeals made the opposite rulings on these issues and ordered the matter to be put to a vote. The Washington Supreme Court accepted review and posed the questions to be 1) whether petitioners had standing, and 2) whether the initiative was beyond the initiative power.

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Avoiding Traps in Making or Accepting an Offer of Compromise in a Condemnation Case

The procedure for initiating and prosecuting a condemnation is set forth in Chapter 35 of the Oregon Revised Statutes. Once the condemnation lawsuit is filed, the Oregon Rules of Civil Procedure (“ORCP”) typically control. However, there are potential traps lurking in the gray areas where the condemnation statute and the ORCPs converge. A condemning authority and property owner fell into such a trap in Washington County v. Querbach, 275 Or App 897 (2015).

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Religious Organization and Village Tussle Over Meaning of RLUIPA

CemeteryRoman Catholic Diocese of Rockville Centre v. Incorporated Village of Old Westbury, 2015 WL 5178126 (EDNY) involved a lengthy battle over the siting of a religious cemetery in Defendant Village in the face of a newly adopted “Places of Worship” (POW) ordinance, challenged under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Civil Rights Act and the Equal Protection and Free Exercise clauses.  In these proceedings Plaintiff moved for summary judgment, claiming the POW Ordinance was facially unconstitutional, while Defendants moved for summary judgment to dismiss all claims.  Note, one claim not treated in this summary deals with New York’s State Environmental Quality Review Act (SEQRA), which involves New York statutory issues.

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Senate Bill 1533 – Oregon Jurisdictions May Allow Inclusionary Zoning In Narrow Circumstances

ApartmentsAs part of a four-bill package – SB 1533, SB 1573, HB 4143, and HB 4079 – the Speaker of the House, Tina Kotek used the short session to try and push housing advocates’ agenda forward, but the bills got hijacked by development interests. This post explores the so-called inclusionary zoning bill, Senate Bill 1533. Inclusionary zoning is a planning tool that requires new housing developments to offer a portion of the new units at affordable levels for purchase or rent.

Housing advocates never expected inclusionary zoning to singularly solve the affordable housing crisis, but hoped it would be one avenue to create equitable neighborhoods. The hope was to have affordable housing placed in all neighborhoods, near transit options, fresh food, and quality schools. But, at the end of the day, Oregon jurisdictions are left with little in the way of mandating inclusionary housing, except for possibly, the City of Portland.

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New York Federal Court Upholds Sign Regulation Against Peace Symbol High Up On Apartment Building

thumbnailVosse v. City of New York, 2015 WL 7280226 (S.D.N.Y.) was a First Amendment suit by an apartment dweller against the City and its Building Commissioner over an illuminated peace symbol on the exterior of Plaintiff’s 17th floor apartment. Illuminated signs were prohibited more than 40 feet from the ground in the applicable zoning district, but the regulations made an exception for “flags, banners or pennants” on certain religious, philanthropic or community structures. Plaintiff contended the regulation was content-based and thus unconstitutional. The trial court granted summary judgment, finding that Plaintiff lacked standing. The Second Circuit first affirmed, then reconsidered the case in the light of Plaintiff’s alternative argument that assumed standing for an alternative contention that, even if content-neutral, the regulation was not a reasonable time, place and manner restriction.

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Is America’s EB-5 Program a Boon to Development or an Opportunity for Deception?

High rise buildings_US flagThe House Judiciary Committee held a hearing earlier this month to review the performance of the EB-5 Immigrant Investor Program. Congress created the EB-5 visa program in 1990 as a tool to stimulate the U.S. economy by encouraging foreign capital investments and job creation. The EB-5 program makes immigrant visas and subsequent “green cards” available to foreign nationals who invest at least $1 million in a new commercial enterprise that will create or preserve at least 10 full-time jobs in the U. S. A foreign national may invest only $500,000 if the investment is in a targeted employment area (“TEA”), defined to include certain rural areas and areas of high unemployment. A considerable amount of foreign capital invested through the EB-5 program has been invested in domestic real estate development projects.

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Justice Scalia’s Input Into Oregon’s Land Use System

Justice Antonin Scalia passed away last week after almost 30 years as a justice of the U.S. Supreme Court. Although his impact was felt throughout the country, it is worth pausing to look at how he affected the land use system more broadly and, in particular, Oregon’s system.

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Pennsylvania Magistrate Recommends RLUIPA Injunction

Hope Rising Community Church v. Municipality of Penn Hills, 2015 WL 7220380 (W. D. Pa.) involved a growing church congregation that leased an industrial building, making $7000 in improvements and gaining $10,000 in materials and labor donated by members. The pastor claimed that the staff gave him the verbal go-ahead, but the staff denied such a conversation. When the pastor applied for an occupancy permit, it was denied and the church was ordered to stop holding services at the site. Under defendant’s code, churches are only allowed as conditional uses in residential zones, and not permitted in the Light Industrial District where Plaintiff’s site lies. Uses not permitted outright or conditionally under the code are deemed prohibited. Defendant also denied Plaintiff’s use variance application, so the only uses recognized by Defendant are clothing distribution, food bank and volunteer meetings. The church alleges its membership attendance has dropped from 85 to from between 27 and 40. Continue Reading

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