The Central Eastside Industrial Council and other interested businesses sought LUBA review of the City of Portland’s decision that a houseless rest area and tent camp for houseless persons was a Community Service Use allowed in the General Industrial Zone (IG1 Zone). The city’s decision would have allowed the Right 2 Dream Too (“R2DToo”) Camp to relocate from downtown Portland to land near Oregon’s Museum of Science and Industry. The subject property is designated as an industrial sanctuary in the city’s Comprehensive Plan.
U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016) involved the disposition of a sentencing remand by the Fifth Circuit in a zoning bribery case. Defendant mayor was charged with 13 counts of corruption involving four schemes, and was convicted on seven of those counts. The jury acquitted defendant on the remaining counts. In the first appeal, the court upheld the convictions, but remanded the case for resentencing, finding the trial court erred in its calculations.
Folsom v. Zoning Board of Appeals of Milford, 160 Conn. App. 1 (2015) involved the appeal of an unrepresented plaintiff who had successfully appealed a zoning enforcement officer’s issuance of a certificate of zoning compliance to his neighbor who wished to build a structure on adjacent property. Plaintiff then sought reimbursement for his incurred for that appeal, plus interest. On motion, that complaint was struck. Plaintiff filed another suit, alleging the zoning enforcement officer was personally liable to plaintiff for failure to enforce the zoning ordinance, that the Board of Zoning Appeals was liable for failing to disqualify itself from the underlying case over a conflict of interest, and the defendant city was liable to plaintiff for reimbursement of his costs. That complaint was also struck and plaintiff appeals the grant of both motions to strike.
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.
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.
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.
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.
Housing 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.
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.
Avenue 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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