American Bar Association

Section of State and Local Government Law and Section of Public Contract Law

2014 Spring Meeting and

9th Annual State & Local Procurement Symposium

Hot Topics in Land Use Law

Jennifer Bragar, Garvey Schubert Barer, Portland, OR

Patricia E. Salkin, Dean and Professor of Law, Touro College

Jacob D. Fuchsberg Law Center, Central Islip, New York

W. Andrew Gowder, Jr., Pratt-Thomas Walker, Charleston, SC

Edward A. Thomas Esq., Quincy, MA

Julie A. Tappendorf, Ancel Glink, Chicago, IL

Robert H. Thomas, Damon Key et al, Honolulu, HI

Daniel P. Dalton, Dalton & Tomich PLC, Detroit, MI

Erin E Burg Hupp, Meyers Nave, Oakland, CA

Kenneth C. Baldwin, Robinson & Cole LLP, Hartford, CT

Erica Levine Powers, Esq., Albany, NY

Jessica A. Bacher, Managing Director, Adjunct Professor of Law, Land Use Law Center, Pace University of Law, White Plains, NY

Sorell E. Negro, Robinson & Cole, LLP, Hartford, CT

April 24-25, 2014 Asheville, NC

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American Bar Association

Section of State and Local Government Law and Section of Public Contract Law

2014 Spring Meeting and 9th Annual State & Local Procurement Symposium

Distressed Property Remediation Local Government Strategic Approach Overview

Co-author and Presented by Jessica A. Bacher

Chair, Distressed Properties Sub-Committee, Land Use Planning & Zoning Committee

Executive Director & Adjunct Professor of Law

Land Use Law Center Pace University School of Law

Clinic Lecturer, Yale School of Forestry and Environmental Studies

Co-author Margaret E. Byerly

Consultant Staff Attorney

Land Use Law Center Pace University School of Law

April 24-25, 2014 Asheville, NC

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Distressed Property Remediation Local Government Strategic Approach Overview

I. Policy and Planning A. Adopt Policy Statements

1. Council Resolution, Mayoral Proclamation or Executive Order To incorporate distressed property remediation into the very first stages of land use planning, local governments can adopt resolutions, policy statements, or executive orders addressing the issue. These policy tools represent top-down approaches to managing distressed properties that can effectively initiate the implementation of a project across various agencies and levels of government. A policy statement can make relevant findings about negative impacts from distressed properties and authorize municipal staff or a task force to research remediation practices and report their findings and recommendations to city council. The policy statement can list potential remediation techniques the locality should consider during this process. These may include creating a task force, partnering with local institutions and organizations, adopting a distressed properties component for the comprehensive plan, creating a vacant property registry, amending zoning, streamlining the project review and approval process, improving code enforcement, strengthening the property maintenance code, adopting a nuisance abatement law, creating a land bank and an acquisition and management strategy for vacant properties, working with neighboring communities, and securing funding to support remediation practices.1

B. Create Task Force 1. Involve all Stakeholders to build capacity 2. Assess Conditions and Target Actions 3. Explore Tools & Techniques

Municipal officials and civic leaders need a forum where they can evaluate conditions and policy options and coordinate all public, nonprofit, and community and neighborhood revitalization initiatives. Too often governmental entities fail to coordinate their efforts or see the connections across departments, agencies and institutions. Outside of city hall well-meaning nonprofits, organizations, and public institutions launch their own responses with tepid support from local officials. All participants could benefit from coming together for regular strategic and policy discussions to leverage resources and expertise so they can better focus their collective energies on collaborative approaches. A coordinated task force brings together key officials across municipal departments together with government institutions, nonprofit partners, civic and professional associations, business coalitions, and anchor institutions to collectively set policy priorities and develop action plans for reform, identify problems with existing strategies, brainstorm opportunities for change, and vet proposals to ensure coordination of efforts. In 2005, Neighborhood Progress, Inc. (NPI) and the Cleveland Neighborhood Development Coalition (CNDC) jointly founded Cleveland, Ohio’s Vacant and Abandoned Properties Action Committee (VAPAC).2 It has met monthly since its inception and involves representatives from

1 For a model distressed property resolution, see Nolon & Salkin, Land Use and Sustainable Development Law: Cases and Materials 964 (8th Ed. 2012). 2 Cuyahoga Land Bank, July 2012 Newsletter, Conta.cc/N4cEYm.

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24 institutions and agencies, including the Federal Reserve Bank of Cleveland, the Cleveland office of the Ohio Attorney General, the County Executive, County Prosecutor, County Sheriff, County Treasurer, County Department of Development, First Suburbs Consortium, and the Cuyahoga Land Bank. City of Cleveland agencies include Cleveland City Council, Cleveland Housing Court and the departments of Building and Housing and Community Development. Technical assistance is provided by both Case Western Reserve University and Cleveland State University. VAPAC employs a flexible format that allows frontline local government staff from across agencies and jurisdictions to work together to devise specific solutions to specific vacant property problems and then work with policy makers to support relevant program and policy changes at the state, county, and local government level. Similarly, in 2011 Newburgh, New York created its Distressed Property Task Force to develop a step-by-step process for implementing the City’s Distressed Property Remediation Program, which includes improvement of the City’s code enforcement process, creation of the Newburgh Community Land Bank, and streamlining the City’s project review and approval process for redevelopment of distressed properties.3 Task Force members include the city manager; corporation counsel; city planning, code enforcement, and public works staff; assessor; police chief; city engineer; GIS analyst; and representatives from local not-for-profits, businesses, and institutions. The Task Force meets regularly to facilitate implementation of the City’s remediation program.

C. Inventory Properties 1. Data Collection and Inventory

A municipality’s vacant and abandoned properties must be inventoried and compiled into a publicly available system that aids municipal staff in strategic implementation of distressed properties initiatives and enforcement. To collect distressed property data, a local government can organize a community-led inventory of the municipality’s vacant and abandoned properties that engages neighborhood organizations and residents. Additionally, municipal staff should compile data for abandoned, vacant, and/or distressed properties by searching local records for properties that (1) are listed on any relevant registries, (2) have zero water usage, (3) are rentals, (4) are tax/fee delinquent or have tax lien histories, (5) have code enforcement violations (number and severity of complaints/citations and cases where violations not cured), and (6) that have nuisance complaints (number of noise and other complaints/police calls/arrests). Staff can locate responsible parties or missing owners of abandoned properties, such as absentee landlords and third-party subsidiaries for banks, by consulting county data, deed information, property tax data, records of permits or licenses, utilities billing data, corporation data, internet searches, LexisNexis Accurint,4 Compliance Connections,5 National Community Stabilization Trust,6 REOwellsfargo.com, Fannie Mae’s Home Path, and First Look data sources, and Local banks.

2. Create Data System

3 City of Newburgh, NY, Resolution No. 47-2011. 4 LexisNexis Accurint, www.accurint.com. 5 Compliance Connections, www.complianceconnections.com. 6 National Community Stabilization Trust, www.stabilizationtrust.com.

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Following data collection, local governments should create an online distressed property data system that keeps collected data up-to-date. Municipal staff should research available property data systems nationally to identify best practices, as well as data system platforms, data repositories, extensions, and interface builders. Possible platforms and data repositories include ArcGIS,7 Enterprise GIS System, Parcel Based GIS,8 Bing Maps,9 Census Windows Application,10 and Google Maps API.11 Possible Extensions and Interface builders include Accela Automation, 12 Citiworks, 13 CommunityViz, 14 Lucity GIS, 15 MuniCity, 16 PublicStuff, 17 PubWorks,18 and CitiTech Management Software.19

The Providence Plan (ProvPlan) in Providence, Rhode Island provides data on property and neighborhood conditions for the city of Providence and surrounding neighborhoods in Rhode Island.20 ProvPlan’s comprehensive GIS system was developed using PC ARC/INFO and ArcView for Windows and incorporates census data and administrative data from various government agencies. The program is a joint effort between the City of Providence and the State of Rhode Island to promote better collaboration between government, the private sector, and academic institutions. Through the site's Providence Property Mapper, users can search for property information by address or create interactive maps related to abandonment, foreclosure, zoning, and land use categories.

D. Develop a Plan

1. Pick Targets The planning process should commence with a comprehensive survey of a municipality’s vacant properties to identify geographic areas ripe for policy reform and administrative intervention. This survey will reveal any need for site-specific interventions addressing particular distressed properties scattered throughout the municipality, as well as any concentrated revitalization strategy for any targeted area with a concentration of abandoned and vacant buildings. To determine target areas, personnel should consult collected data to identify concentrations of vacant buildings, code violations, rental properties, tax liens, and market indicators, etc. For example, the City of Philadelphia, working closely with The Reinvestment Fund (a national community development think tank), pioneered a methodology for creating a “neighborhood market typology” for residential units based on various market indicators and property conditions. By evaluating the relative market strengths of its neighborhoods and then classifying these neighborhoods according to a simple typology (e.g.,

7 Esri, ArcGIS, http://www.esri.com/software/arcgis. 8 Esri, Parcel Based GIS, http://www.esri.com/industries/cadastre/business/parcel_mangmnt.html. 9 Microsoft Office, Bing Maps, http://www.microsoft.com/maps/industry/government.aspx. 10 Federal Financial Institutions Examination Council, Census Windows Application, http://www.ffiec.gov/census/winApp.aspx. 11 Google, Inc., Google Maps API, https://developers.google.com/maps/. 12 Accelia, Accela Automation, http://accela.com/. 13 Azteca Systems, Inc., Citiworks, http://www.cityworks.com/products/software/. 14 Placeways LLC, Community Viz, http://placeways.com/communityviz/index.php. 15 Lucity, Inc., Lucity GIS, http://www.lucity.com/viewPage.do?code=gis1. 16 General Code, LLC, MuniCity, http://www.generalcode.com/content-management/municity. 17 PublicStuff, LLC, Public Stuff. PublicStuff is a mobile phone “Civic App” that allows cities to manage assets and provide residents with information. 18 Tracker Software, PubWorks, http://www.pubworks.com. 19 CitiTech Systems, CitiTech Management Software, http://www.cititech.com/software/. 20 ProvPlan, http://provplan.org/.

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stable, transitional, and distressed), the City was able to target various community development strategies and code enforcement initiatives to specific neighborhoods most in need of interventions.

2. Assess Comprehensive Plan: 1. Add Distressed Property Component

In most states, local land development regulations must conform to the local comprehensive or master plan. Thus, to facilitate distressed property remediation, a municipality should amend its comprehensive plan to include related planning goals, objectives, and strategies. In addition to relevant background information, a distressed property component should include overarching goals to eliminate problems associated with distressed properties through a remediation program that maximizes the number of livable buildings and restores these properties to the tax rolls. The component should list associated planning objectives and strategies, such as removing zoning barriers to redevelopment, inventorying vacant and abandoned properties and creating a database, enhancing the regulatory program for distressed properties, developing a municipal acquisition program, strengthening code enforcement, and engaging the entire community to harness existing resources.

2. Develop Reuse & Revitalization Plan that include market information

After amending its comprehensive plan, a municipality should develop a reuse plan that contemplates possible redevelopment strategies for its vacant and distressed properties. A reuse plan is a general assessment of a City’s potential for redevelopment in the context of economic trends, community demographics, and regional market conditions. Basic redevelopment scenarios are prepared in order to conduct a land use demand analysis for a mix of uses. The City of Kalamazoo, Michigan, prepared a reuse plan that examines its existing conditions and key trends that will inform the marketability of its distressed sites. Further, the plan inventories existing land uses, presents market conditions to assess the development potential in a post-industrial area south of its downtown, and offers a variety of redevelopment scenarios for this target area based on this information.21 Following the development of a reuse plan, a municipality should complete a detailed revitalization plan using the reuse plan’s analysis and recommendations. A revitalization plan is a comprehensive land use proposal that includes site specific programming, real estate financing proposals, and schematic neighborhood design.

E. Assess Public and Private/Public Capacities Municipalities can work with business and civic leaders to help address distressed properties and related problems. In particular, local businesses and anchor institutions such as colleges and hospitals, can form a partnership that works with a municipality to create safer and healthier places for employees, customers and business activities. For example, the Greater Newburgh Partnership (GNP) in the City of Newburgh, New York formed in 2012 through a

21 City of Kalamazoo, Mich., Portage Creek Corridor Reuse Plan, http://www.kalamazoocity.org/departments/community-planning-and-development/planning/15-departments/community-development/476-portage-creek-corridor-reuse-plan.

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series of grants and in-kind support. 22 GNP’s Board of Directors includes influential leaders from St. Luke’s Hospital, St. Mary’s College, and a diverse array of regional and local businesses. GNP organizes community outreach activities; implements the clean and green program through which GNP works with other local nonprofits and the City’s tree commission to green vacant lots and coordinate tree plantings; supports the Newburgh Community Land Bank; provides additional capacity for the City by funding the City’s new website and obtaining funding for the City’s zoning code rewrite; and creates positive stories about Newburgh’s efforts to revitalize and the opportunities it presents. The GNP is based on the decades-old Greater Camden Partnership, a partnership between Camden, New Jersey’s anchor institutions, not-for-profit organizations, and local government to create and implement sustainable revitalization projects in the City.23

F. Secure Stakeholder Support An effective decision-making process considers the different interests of all stakeholders and makes a good-faith attempt to accommodate and satisfy as many interests as possible, building trust in and support for the process. To ensure broad community support for a municipal distressed properties program, a locality should organize and institutionalize stakeholder involvement throughout the entire process. Richmond, Virginia’s Neighborhoods in Bloom (NIB) program, which facilitates rehabilitation of the City’s historic neighborhoods, provides an example of citizen inclusion at the beginning of its process. The NIB program is very inclusive, as “City staff conducted numerous community meetings to obtain citizen input on the process and the neighborhoods they would recommend” for inclusion in the program.24 Similarly, Poughkeepsie, New York began its Distressed Property Initiative by soliciting public input in the process.25 At an April 2012 public meeting of over 150 citizens, participants were divided into small groups to identify, prioritize, and record specific distressed property conditions. Five focus group sessions followed this meeting, with several stakeholder groups, including developers, realtors and merchants, and local institutional and not-for profit representatives, to gather feedback on the City’s current practices, challenges, and opportunities related to distressed properties. The series of small group discussions focused on barriers to remediating distressed properties and identifying new options for overcoming them. Finally, the process convened key community leaders into a two-day training program to consider potential solutions and generated concrete strategies and implementation steps to remediate distressed properties. Newburgh, New York includes community members throughout the implementation of its Distressed Property Remediation Program. The City’s Distressed Property Task Force, mentioned above, hosts quarterly community meetings to provide programmatic updates to citizens. Additionally, the Newburgh Community Land Bank convenes a Resident Advisory Committee and includes resident delegates on its Board of Directors.26

22 Greater Newburgh Partnership, http://www.greaternewburghpartnership.org. 23 Greater Camden Partnership, http://www.linkedin.com/company/greater-camden-partnership. 24 City of Richmond, Virginia, Neighborhoods in Bloom, http://www.richmondgov.com/content/neighborhoods/index.aspx. 25 City of Poughkeepsie, New York, Distressed Property Initiative, http://www.cityofpoughkeepsie.com/archives/1985. 26 Newburgh Community Land Bank, http://www.newburghcommunitylandbank.org/#.

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II. Review & Improve Local Legislation

A. Code Enforcement Local governments should enhance local property condition codes and their enforcement. Property maintenance standards should be clear and consolidated into one local law, and municipalities should streamline code enforcement operations into a real time system that tracks and communicates information about code enforcement cases. Using dedicated computer software, a locality can develop a case management system that covers all code enforcement activities and actions, evaluates performance and effectiveness of various code enforcement interventions, and assists in cost recovery. To ensure disciplined and consistent enforcement, the system should build on existing baseline data and record number of inspections and types of code actions taken. Also, it should distinguish between complaints, case inquiries, etc.; keep track of referrals from other departments; utilize new technology such as smartphones or tablets for inspectors, nonprofits, and active citizens to submit complaints and inquiries; and track the investigation, preparation, and assignment of code enforcement cases for court: who does the leg work, who reviews the case before it goes to court, who prepares the complaints; the system should track these code enforcement actions as they get ready and go through the prosecution and judicial action. Further, code enforcement operations should implement a systematic process for sharing information across city departments and with institutional partners and residents through regular outreach opportunities, such as a dedicated website, town hall meetings, neighborhood coffees, and newsletters. Additionally, judicial enforcement should be reliable and effective. For example, Cleveland, Buffalo, and Memphis all created special housing or environmental courts to encourage property owners to prevent blight and keep their properties clean.27

B. Nuisance Abatement and Repair and Demolition Laws

A building can be a nuisance if it is being used legally or in a harmful manner, unsafe, abandoned or being used by derelicts. If authorized by state law, municipalities can adopt a nuisance abatement law that allows local officials to enter a private property and remove, order removal, or demolish a building that constitutes a nuisance, and recover costs. The City of Mount Vernon, New York’s nuisance abatement law authorizes City personnel to enter private or public property to abate nuisance conditions after notice is served and requires the owner to pay for the abatement.28 Nuisance conditions include garbage, stagnated standing water, overgrown weeds, and noxious plants.29

The law should provide for inspection, notice, opportunity to repair, hearing, and appeal, and it should authorize the municipality to remove the building and assess costs against the land. Minneapolis, Minnesota enacted a statute for the rehabilitation or demolition of buildings that

27 Cleveland Housing Court, http://www.clevelandhousingcourt.org; Buffalo Housing Court, http://www.nycourts.gov/courts/8jd/erie/bcchousing.shtml; Shelby County Environmental Court, http://www.shelbycountytn.gov/index.aspx?NID=353. 28

City of Mount Vernon, Charter § 105-b. 29City of Mount Vernon, New York Code, Chapter 80.

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are vacant or constitute a public nuisance.30 The ordinance allows City personnel to secure and board vacant and hazardous buildings, serve notice on the property owner, and order a building to be demolished or rehabilitated upon determination that it is a public nuisance.

C. Vacant Property Registration 1. Local Vacant Property Registry

If authorized under state law, a municipality can adopt a local law requiring the registration vacant properties to monitor the number of vacant buildings within its jurisdiction. These laws can apply to residential, commercial, and industrial properties; define the amount of time after which property is considered abandoned; specify maintenance requirements and penalties for noncompliance; and include a waiver for nonprofit organizations. Under such laws, municipalities may collect fees and require periodic property inspections. Fees can be graduated based on assessed property value or length of vacancy. The New Jersey Model Vacant Property Registration Ordinance requires the owner of vacant property to file a registration statement for the property within 30 days of the vacancy, 30 days after assuming ownership, or 10 days of receipt of notice by the municipality31. The registration statement must include contact information for the owner and owner’s authorized agent who will receive, on behalf of the owner, notices of code violation or process in any court or administrative proceeding, as well as contact information for the individual responsible for maintaining the property and a liability insurance certificate. Registration includes a fee and must be renewed annually if the building remains vacant. Further, the model ordinance requires owners to enclose and secure the property in accordance with municipal code requirements; maintain all structures, fences, and yards in good condition and free from garbage and debris; and post a sign on the property with contact information for the owner and owner’s agent. The City of Wilmington, Delaware, enacted an ordinance establishing a progressive registration fee for vacant buildings.32 The ordinance requires owners of buildings remaining vacant for longer than 45 days to file a notarized registration statement with the Department of Licenses and Inspections. The statement must include, among other things, the address of the buildings, and the contact information of the owner. The owner is then required to pay an annually increasing registration fee. Failure or refusal to pay the fee results in a lien on the property as well as other penalties. For more examples of local vacant property registration ordinances from across the country, visit Safeguard Property’s Vacant Property Registration online database.33

2. State Vacant Property Registry: Zombie Titles

States can create state-wide vacant property registries as well. In February 2014, New York State Attorney General Eric T. Schneiderman introduced a state bill that would require lenders

30 City of Minneapolis, MN, Code Ch. 249. 31

New Jersey Model Vacant Property Registration Ordinance, Alan, Mallach, Senior Fellow, Brookings

Institution and Center for Community Progress (on file with authors). 32 City of Wilmington, Delaware, Code § 125.0. 33Safeguard Properties, Property Registration Ordinances, http://www.safeguardproperties.com/Resources/Vacant_Property_Registration.aspx.

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to take responsibility for vacant and abandoned homes that are lost in the foreclosure process. The bill would create a statewide registry of these “zombie properties,” so municipalities can track abandoned homes and enforce local property maintenance codes.34 The AG’s press release quotes author Jessica Bacher, Managing Director at the Land Use Law Center at Pace Law School, who notes that “a statewide registry would alleviate a significant local burden and shed light on an issue that until now has gone almost unnoticed. The registry would help to clarify the extent of the problem, so appropriate strategies and enforcement techniques can be developed and deployed.” A holder of “zombie” title is one who abandons property believing it lost in foreclosure but later becomes aware that the foreclosure was never completed. 35 After initiating the foreclosure process, some lenders neglect the property in an unwillingness to bear maintenance costs, leading the property to fall into disrepair as the lender waits out the foreclosure process. In the event that the foreclosure process comes to a standstill or the action is dismissed because the lender is unable to enforce its rights or abandons foreclosure proceedings, the absent borrower regains title to the property.36 Years may pass before this property owner becomes aware that the foreclosure never resolved. At this point, the title is “zombie-like” because title to vacant property comes with liabilities that arise during vacancy, including ongoing mortgage costs, unpaid property taxes, squatter and looting damage, natural dilapidation, possible code violations, and other repairs and maintenance expenses.37 Zombie titles pose an indirect harm to neighboring properties, the community, and the municipality.38 These properties are often unsightly, boarded up, inhabited by squatters, and magnates for crime. Their associated foreclosure proceedings contribute to devaluation of neighboring properties, and they can trigger a staggering decline in a community’s real estate market.39 Sometimes, these properties become public nuisances, but zombie title makes it infeasible for the owner or lender to incur expenses for improving the property. Thus, localities take on the burden of correcting municipal code violations associated with these properties, depleting municipal budgets in the process.40

34 Press Release, NYS Attorney General Eric T. Schneiderman, A.G. Schneiderman Announces Statewide Results Of Homeowner Protection Program In First 15 Months (Feb. 21, 2014), available at http://www.ag.ny.gov/press-release/ag-schneiderman-announces-statewide-results-homeowner-protection-program-first-15; see also, Susanne Craig, A New Effort in Albany to Put Lenders in Charge of Abandoned Properties, New York Times, Feb. 9, 2014; T.J. Pignaturo, Shneiderman Targets ‘Zombie Homes’, The Buffalo News, Feb. 10, 2014. 35 Mary Umberger, Zombie foreclosure statistics scary, Chicago Tribune, (April 19, 2013), http://articles.chicagotribune.com/2013-04-19/classified/sc-cons-0418-umberger-20130419_1_foreclosure-activity-realtytrac-foreclosure-notice. 36 Id. 37 Michelle Conlin, Special Report: The latest foreclosure horror: the zombie title, Reuters, (Jan. 10, 2013), http:// www.reuters.com/article/2013/01/10/us-usa-foreclosures-zombies-idUSBRE9090G920130110. 38 Id. 39 How Can Municipalities Confront the Vacant Property Challenge? A Toolkit, March 2010, (available at http://www.bpichicago.org/documents/toolkitBPI5-6-10-.pdf). 40 Scott Gunnerson, When foreclosed owners walk, ‘zombie’ homes become nuisance, Florida Today, (Sept. 1, 2013), http://www.floridatoday.com/article/20130901/NEWS01/309010051.

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After identifying a zombie property, perhaps through a registry like that proposed for NYS, a municipality can attempt to resolve the problem through a taking by eminent domain or a public nuisance claim against the interested parties. If the municipality brings an eminent domain proceeding to take possession of the zombie property, the locality can transfer the property to a land bank for rehabilitation. If the municipality brings a public nuisance action against the interested parties, it can enjoin either the lender or the homeowner from further interfering with the community but may not take title to the property. If a property tax delinquency exists, the municipality itself may bring a foreclosure action to enforce a property tax lien.

D. Rental License Laws 1. General and Targeted Rental License

A residential rental-licensing program requires property owners to apply for and obtain a rental license prior to leasing their properties.41 Rental-licensing programs protect tenants and prevent deterioration of housing stock from through enforcement of property maintenance codes.42 Generally, these programs require owners to submit an application, followed by inspection of the rental property and official municipal approval.43 A “targeted rental license” program organizes rental properties into categories based on property maintenance code violations and, sometimes, level of on-premises criminal activity,44 thus distinguishing compliant from noncompliant landlords.45 Targeted rental license programs incentivize landlords to maintain safe and sanitary rental properties by rewarding compliant landlords with fewer licensing requirements, inspections, and renewals. 46 For example, Brooklyn Center, Minnesota’s rental-licensing ordinance places rental properties into categories based on code violations and the level of criminal activity at the property.47 Brooklyn Center issues four license types to landlords, and each license type varies by number of required inspections, duration of license, and extent of the City’s Crime-Free Housing Program requirements to which the landlord must adhere. The City requires noncompliant landlords to obtain a license type that imposes more onerous standards.

Tenants also can contribute to problems associated with rental properties. To encourage tenant cooperation, municipalities can supplement rental license laws with initiatives that establish a community-wide dialogue about safe, decent rental housing. Additionally, localities

41 Silvana Hackett, Rental Licensing To Achieve Compliance, Center for Urban and Regional Affairs, Univ. of Minn. (June 2012), http://www.ci.roseville.mn.us/DocumentCenter/View/11028. 42 Id. 43 Id. 44 Id.; see also, Brooklyn Center, Minn., Mun. Code ch. 12, § 12-901 available at http://www.cityofbrooklyncenter.org/DocumentCenter/Home/View/277; Addison, Ill., Mun. Code ch. 10, art. VIII, §10-85.2 available at http://code.addisonadvantage.org/Chap10-1.htm; Raleigh, N.C., Mun. Code ch. 2, art. G, § 12-2164, available at http://library.municode.com/index.aspx?clientId=10312; and Hopkins, Minn., Mun. Code ch. 4, § 407, available at http://www.hopkinsmn.com/WebLink8/DocView.aspx?id=96722&dbid=1. 45 Id. 46 Tool 6: Good Landlord Incentives, http://www.communityprogress.net/tool-6--good-landlord-incentives-pages-212.php (last visited on November 8, 2013). 47 Brooklyn Center, Minn., Mun. Code ch. 12, § 12-901; City of Brooklyn Center, Minn., Rental Dwelling Licensing Program, http://www.cityofbrooklyncenter.org/DocumentCenter/Home/View/277.

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can implement education and training programs for tenants and landlords; provide mediation facilities for landlord-tenant disputes; create a landlord-tenant forum that helps all parties move past the frustrations and misperceptions among these groups; engage the court in this process because of its central role in both evictions and code enforcement actions; involve the county department of social services in regular dialogue to better understand provisions for rental housing assistance and ensure accountability in maintenance of rental units in a safe and inhabitable condition; explore the healthy homes and housing movement that advocates for local partnerships that address the substandard livings conditions of many urban neighborhoods, which affect minority and low income households;48 and work closely with landlord associations to develop model lease agreements with stated property maintenance responsibilities for both landlords and tenants.

III. Distressed Property Acquisition, Maintenance, and Disposition A. Property Acquisition

There are several ways a municipality can acquire a distressed or abandoned property. Depending on the local conditions municipal ownership can be a strategy for revitalization or a significant burden on limited resources. If the local tax district owns a tax lien to a vacant property that is due and unpaid for a minimum period of time, the municipality can file a list of delinquent taxes, provide proper notice to the property owner, and if no redemption or answer is made in time, receive possession and ownership of the property through the execution of a tax deed in final judgment. If authorized by the state, a municipality can take title to the property for the public purpose of eliminating blight upon payment of just compensation to the landowner through eminent domain.49 Generally, to implement the power of eminent domain, the municipality must determine that the taking is necessary to facilitate a public purpose, provide proper public notice and service, conduct a public hearing, publish its decision to take the property, and serve notice on the owner of the condemned property. Additionally, if authorized by state enabling legislation, municipalities may follow state requirements to acquire abandoned property or condemn property for blight. Finally, communities can form public-private partnerships and work with institutions and not-for-profits to acquire vacant properties. When there is a large number of municipally owned, tax delinquent, or vacant or abandoned properties in a municipality, the development of a land bank or land banking activities should be considered.

B. Land Banks and Land Banking

Land banks are public or community-owned entities that acquire title to real property that is tax delinquent, tax foreclosed, vacant, and abandoned. After acquiring this property, land banks manage, maintain, and redevelop these properties and then transfer them to new owners in ways that support community needs and priorities. Land banks replace municipal programs that sell tax liens and public tax auctions, “essentially liquidation systems, wherein government trades their interest in tax-delinquent property to speculators, often for pennies on the dollar.”50 Usually purchased by real estate investors with no vested interests in the community, these properties often remain distressed, cycling through this process indefinitely.

48 See generally, the National Center for Healthy Housing, http://www.nchh.org/who-we-are.aspx. 49Alyse Terhune & Daniel Pennessi, Municipal Resources, in REINVENTING REDEVELOPMENT LAW 49, 49-53 (Noelle V. Crisalli et al. eds., 2005). 50 Kildee & Hovey, Center for Community Progress, What is a Land Bank, https://www.onecpd.info/resources/documents/LandBankingBasics.pdf.

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In contrast, a land bank enables a municipality to break this cycle, rehabilitating properties where possible, demolishing them where necessary, and holding and properly maintaining properties during the interim.51 Over 80 land banks and similar initiatives exist across the country. The Newburgh Community Land Bank (NCLB)52 is a leader in New York State on the forefront of land banking strategies. The NCLB is one of the first five NYS Land Banks incorporated under the New York State Not-for-Profit Corporation Law. To revitalize Newburgh’s downtown and increase the City’s taxable property base, the NCLB’s initial work focuses on the City’s East End Historic District north of Broadway, which contains the highest concentration of vacant and abandoned properties in the City, and will expand its footprint over time. City properties placed into the Land Bank are granted title free from liens and back-taxes, and NCLB properties are exempt from all taxation while they are held by the entity. NCLB works to bring these properties back to productive use, including the creation of economic development opportunities; accessible, quality housing; commercial development; community amenities; and local jobs. NCLB leadership includes a diverse Board of Directors, a resident advisory committee, and a cabinet of technical experts created to advise the Land Bank. After taking title to vacant properties, a land bank must create a maintenance and repair plan for these properties that involves neighbors and not-for-profits, where possible, and seeks government subsidies, tax credits, and tax abatements to help fund these activities. Further, land banks must identify any properties that require demolition, bring the demolition program to scale, and involve the local workforce and deconstruction and resale of usable materials if possible. Finally, prior to property acquisition, land banks must have a plan in place for disposition of the property. IV. Redevelopment Readiness & Streamlining the Land Use Approval Process

A. Open for business to attract private market investment B. Provides predictability and decreases soft costs

Most community planning boards and commissions simply enforce required standards and follow the legally-prescribed steps in their review and approval process; however, if authorized, review boards may supplement the required process steps to streamline the approval process by removing obstacles to redevelopment. Municipalities can streamline the process in several ways. A central permitting office can manage the intake of all applications and any information or work sessions, guide sequencing of approvals, schedule and manage cut-off dates and public meetings, and guide applicants through the approval process. Randolph County, North Carolina, created a central office where citizens can obtain all development permits or applications required for land use development.53 Official guidelines also help applicants through the approval process. For example, Mendocino County, California, distributes to applicants a document entitled the “Permit Place” to applicants that presents an overview of the County’s permit process and tips for navigating it.54 Process “road maps”

51 Id. 52 Newburgh Community Land Bank, http://www.newburghcommunitylandbank.org/#. 53 RANDOLPH CNTY., CENTRALIZED PERMITTING ORDINANCE (2005), available at http://www.co.randolph.nc.us/ordinances/ordinances/CentralPermittingOrdinance.pdf. 54 Mendocino County, Welcome to the Permit Place, Overview of County Permitting, MENDOCINO COUNTY

PLANNING AND BUILDING DEPARTMENT I-4 (September 2008), http://www.co.mendocino.ca.us/planning/pdf/1-Introduction_Binder_Edited.pdf.

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clearly delineate all process steps, reflecting appropriately sequenced board approvals that result in the most efficient process. The Town of Woodstock, Connecticut, provides applicants with a flow chart or checklist for its subdivision application process, building permit application process, and special permit application process.55 Pre-application workshops help get all parties on the same page early in the process, avoiding conflict and confusion later. Mendocino County, California, invites certain applicants to attend voluntary, roundtable conferences that offer general advice regarding development permits and requirements to multiple applicants at one time.56 Streamlined application forms contain no unnecessary or cumbersome requirements and consolidate forms where appropriate. Finally, regular training sessions for local board members helps create a smooth process.

V. Integrating Other Actions into Remediation Process

Ultimately, distressed property remediation can be an opportunity disguised as a problem. Adaptive reuse of vacant and abandoned properties presents an opportunity to implement an array of sustainable development initiatives. These include brownfield redevelopment and green infrastructure improvements such as transit oriented development, complete streets initiatives, urban agriculture programs, and on-site stormwater management. Additionally, distressed property programs can incorporate energy efficiency standards, on-site renewable energy systems, open space creation, and new jobs for community members.

55 TOWN OF WOODSTOCK, CT., SPECIAL PERMIT FLOW CHART (2012), available at http://woodstockct.gov/documentsforms/category/48-documents.html; TOWN OF WOODSTOCK, CT., STEPS TO A BUILDING PERMIT (2012), available at http://woodstockct.gov/documentsforms/category/48-documents.html?start=20; TOWN OF

WOODSTOCK, CT., SUBDIVISION FLOW CHART (2012), available at http://woodstockct.gov/documentsforms/category/48-documents.html?start=20. 56 Mendocino County Planning and Bldg. Dept., Welcome to the Permit Place: Overview of County Permitting, 23-26 (2008), http://www.co.mendocino.ca.us/planning/pdf/1-Introduction_Binder_Edited.pdf.

American Bar Association

Section of State and Local Government Law and Section of Public Contract Law

2014 Spring Meeting and

9th Annual State & Local Procurement Symposium

The 2013 Religious Land Use Update

Daniel P. Dalton

April 24-25, 2014 Asheville, NC

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The 2013 Religious Land Use Update

Daniel P. Dalton1

Historically, religious organizations have been subjected to unequal enforcement of land use regulations and sometimes blatant discrimination when compared to their non-religious counterparts. In 1993, Congress passed the Religious Freedom Restoration Act (“RFRA”) in an attempt to eradicate this discrimination and to preserve individuals’ right to freely exercise their religious beliefs.2 Four years later, the United States Supreme Court ruled in City of Boerne v. Flores that RFRA was an unconstitutional use of Congress’s enforcement powers under the Fourteenth Amendment.3 In response to Boerne, in 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)4 to correct the constitutional infirmities of RFRA.

Since its adoption, RLUIPA litigation has been constant and evolving, and 2013 was no exception. Courts scrutinized RLUIPA’s constitutionality, further defined and applied “substantial burden” and “equal terms,” and explored issues regarding modifications of consent judgments, standing, and attorneys’ fees. In the meantime, although these issues have created splits among the circuits, the Supreme Court continues to deny certiorari in RLUIPA cases. Discussed below are some of the most important and influential developments of 2013. The circuit splits regarding “substantial burden” claims remain and each circuit to encounter the issue is now compelled to either adopt an existing standard or, as is often the case, develop its own standard. Additionally, courts continue to develop standards regarding “equal terms” claims and ripeness. Finally, courts are also beginning to slowly develop standards for RLUIPA’s “nondiscrimination” and “exclusions and limits” clauses – clauses which have been seldom-used throughout RLUIPA’s short history.

I. Ripeness

In the continued evolution of RLUIPA jurisprudence, ripeness continues to be a contested issue, with many municipalities seeking to shield themselves by arguing that RLUIPA plaintiffs have not exhausted their remedies before bringing suit. One case to thoroughly discuss the issue of ripeness in the RLUIPA setting was Roman Catholic Bishop v. City of Springfield.5 In this case, the Roman Catholic Diocese of Springfield (“Diocese” or “RCB”) brought suit against the city of Springfield, Massachusetts (“City”) after the City created a single-parcel historic district

1 Daniel Dalton is the co-founder and owner of Dalton & Tomich plc,, a law firm representing property owners in land use and zoning disputes throughout the United States. His book on Litigating Religious Land Use claims is to be published by the American Bar Association in June, 2014. More information regarding his practice and firm can be found here: www.daltontomich.com. Mr. Dalton wishes to thank Mr. Lawrence Opalewski, an associate at Dalton & Tomich PLC for his assistance in preparing this article. 2 42 U.S.C. § 2000bb (1993). 3 City of Boerne v. Flores, 521 U.S. 507 (1997). 4 42 U.S.C. § 2000cc-1 (2000). 5 724 F.3d 78 (1st Cir. 2013).

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around a church owned by the Diocese in order to prevent the Diocese from making changes to the church building.

The church at the center of the case was called Our Lady of Hope (“Church”) and was built in 1925.6 Facing declining numbers of parishioners and clergy, the Diocese elected to close the Church effective January of 2010. Under Diocese rules, when a church is no longer being used for religious purposes, the Bishop is required to protect the religious ornamentation on the building so it is not used for “sordid” purposes.7 Some such structures are built into the church and itself and are not easily removed. In order to accomplish this, the Bishop must either relocate the objects or destroy them.8 Additionally, before a church building is sold to a non-religious third party, the Bishop must first “deconsecrate” the property, which necessitates the removal of all religious symbols.9

Upon hearing of the closing of the Church, a number of unhappy parishioners lobbied the City to designate the Church as a historic district so that, among other things, the Church’s notable architecture and design would be preserved.10 The Diocese opposed this since, according to local law, “once a historic district is approved, ‘no building or structure within [the] district shall be constructed or altered in any way that affects exterior architectural features’” unless the historical commission gives its approval of the changes.11 In other words, the Bishop would be unable to carry out the deconsecration of the building without the approval of the historical commission. Despite vigorous protest from the Diocese, the City Council passed an ordinance which made the Church a single-parcel historic district.12 RCB filed suit against the City in state court the day after the ordinance went into effect alleging violations of RLUIPA, the federal and state constitutions, and the Massachusetts Civil Rights Act.13 After the City removed the case to federal district court, the district court granted summary judgment in favor of the City after deciding, among other things, that RCB’s claims were unripe.14 RCB appealed to the First Circuit.

As to whether RCB’s RLUIPA claims were ripe, the Court considered two factors: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”15 The Court described the fitness prong as having “both jurisdictional and prudential components,” while the hardship component is “wholly prudential.”16

6 Id., at 84. 7 Id. 8 Id. 9 Id., at 84-5. 10 Id., at 86. 11 Id., at 85. 12 Id., at 87. 13 Id., at 88. 14 Id. 15 Id., at 89 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). 16 Id., at 89-90.

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The City argued that since RCB had not yet applied for permission from the historical commission to make any changes to the Church, RCB could not now bring a claim based on the fact that the commission might not allow the changes to be made.17 RCB argued that no further factual developments would alter the outcome of the case. RCB further argued that being required to seek the commission’s permission was itself a hardship and any attempts would be futile since the City had already shown considerable hostility to the Church’s plan.18

The Court concluded that RCB’s claim that the enactment of the ordinance itself burdened RCB’s religious practice was indeed ripe. The Court stated that the Article III requirement of a case or controversy was easily met since the City clearly intended to enforce the Ordinance and RCB had complained of the adverse effects and financial burden of the Ordinance.19 However, the second, or prudential, prong of the fitness test and the prudential hardship prong were much closer questions. The Court noted that RCB never put forth any actual plan for the sale or deconsecration of the Church, and it did not apply to the historical commission for approval. Therefore, the City did not have a chance to show whether or not it would accommodate any potential plan of RCB.20 The Court went on to point out that RCB’s futility argument was also flawed since RCB never actually put forth a plan to demolish or alter the Church.21

Therefore, the Court concluded that RCB’s claims which were premised on its inability to deconsecrate the Church according to Diocese rules were not ripe for adjudication.22 However, the Court found that RCB’s claims based on the mere existence of the Ordinance were indeed ripe.23 In support of this, the Court noted that RCB had submitted a plausible claim that submitting to the Ordinance imposed delay, uncertainty, and expense, “which is sufficient to show present injury.”24 RCB also argued that subjecting its religious decisions to secular administrators imposed a present burden, and that the Church would be subject to daily fines if it did indeed make any changes.25 Based on the above facts and arguments, the Court concluded that the Ordinance did “confront RCB with a ‘direct and immediate dilemma,’” and the claims challenging its existence were indeed ripe.26

The Eleventh Circuit also dealt with the issue of ripeness in the RLUIPA setting. In Temple B'Nai Zion, Inc. v. City of Sunny Isles Beach,27 the Court found that an Orthodox Jewish

17 Id., at 90. 18 Id. 19 Id., at 90-1. 20 Id., at 91. 21 Id. 22 Id. 23 Id., at 92. 24 Id. (citing Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 288 (5th Cir. 2012)). 25 Id. 26 Id., at 92-3 (citing Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 9 (1st Cir. 2012)). 27 727 F.3d 1349 (11th Cir. 2013).

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temple’s challenge to its designation as a historic landmark by a city was ripe for adjudication. In this case, Temple B’Nai Zion (“Temple”), an Orthodox Jewish synagogue located in Sunny Isles Beach Florida (“City”), sought out the assistance of a visiting Rabbi when its membership began declining in the early 2000s.28 Among the Rabbi’s changes to the Temple was a transition from Conservative Judaism to the stricter Orthodox Judaism.29 A number of congregants were angered by the changes to the Temple, including the Mayor of Sunny Isles Beach, Norman Edelcup.30

In 2006, the Rabbi sought to demolish the Temple and reconstruct it according to Orthodox Jewish beliefs.31 The City was opposed to the Temple’s plans. In one meeting between the Rabbi and the Mayor, the Mayor called the Temple a “bunch of pigs.”32 The Mayor also “directed the City’s code enforcement officers to inspect the Temple, and between September 2007 and February 2009, the Temple received 12 separate code violation notices from City officials.33 In 2009, the Temple applied for permits to begin demolition and the following construction. The City denied the permits.34

Following the denial of the permits, the City renewed a previous effort to designate the Temple as a historic site.35 In 2010, the City’s Historic Preservation Board voted to make the Temple the City’s first and only historic site because of a gathering of Holocaust survivors that had occurred on the grounds approximately six years earlier.36 The Board also issued a resolution which prohibited the Temple from making any changes to the exterior of the building and stated that “no building permits shall be issued to alter and/or demolish the aforementioned portions of Temple B’Nai Zion.”37 The Temple unsuccessfully appealed the decision to the City Commission. Following the City Commission decision, the Temple filed a federal lawsuit alleging violations of RLUIPA, the Florida Religious Freedom Restoration Act, and the United States Constitution.38

The district court dismissed the Temple’s claims without prejudice after determining that the suit was not ripe for adjudication.39 The district court reasoned that a challenge to a land use regulation was “not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”40 The court relied on Williamson Cnty Reg’l Planning Comm’n v. Hamilton Bank of

28 Id., at 1351. 29 Id. 30 Id. 31 Id. 32 Id., at 1351-52. 33 Id. 34 Id. 35 Id., at 1352-53. 36 Id. 37 Id., at 1353-54 (internal quotations omitted). 38 Id., at 1354-55. 39 Id., at 1355. 40 Id. (internal quotations omitted).

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Johnson City41 (“Williamson County”). The court said that, in order for its claims to be ripe, the Temple should have submitted building plans and applied for a variance or waiver from the City.42

On appeal, the Eleventh Circuit stated that the Williamson County test was not appropriate where, as here, Plaintiff claimed that the “mere act of designating his or her property historic was motivated by discriminatory animus.”43 The Court stated that this was because “the injury is complete upon the municipality’s initial act, and staying our hand would do nothing but perpetuate the plaintiff’s alleged injury.”44 The Court therefore applied traditional ripeness principles to the Temple’s claims.

Applying traditional ripeness principles, the Court found that the “issue became as ripe as it will ever be the moment the Temple was initially designated a landmark. No further development [was] necessary.”45 This, the Court reasoned, was because the Temple was careful to frame its complaint so that the designation itself was the injury complained of.46 Finally, the Court was careful to note that it made no other determinations about the case other than ripeness. The case was remanded to the district court for further proceedings.47

II. Substantial Burden

Courts have also continued to fine-tune their treatment of substantial burden RLUIPA claims. In Bethel World Outreach Ministries v. Montgomery County Council48 the Fourth Circuit reversed a district court’s summary judgment ruling in favor of the County. In this case, Bethel, a Christian church located in Maryland, sought to expand and build a new building due to severe overcrowding in its existing facilities.49 The overcrowding was interfering with Bethel’s Altar Call, Communion, and other activities such as children’s ministry.50 To remedy these problems, Bethel purchased a large parcel of land in Montgomery County (“the County”) and intended to build a larger building on the property.51 The property was located in a “rural density transfer zone,” and a church was a permitted use when Bethel purchased the property.52 However, in order to obtain water and sewer service, Bethel would need to put in a request to the County. However, the County Council denied Bethel’s request and also passed an amendment which prohibited public water and sewer service to private institutional facilities in the rural density

41 473 U.S. 172, 186 (1985). 42 Temple B’Nai, 727 F.3d at 1355. 43 Id., at 1357. 44 Id. 45 Id., at 1358. 46 Id. 47 Id., at 1359. 48 706 F.3d 548 (4th Cir. 2013). 49 Id., at 552. 50 Id. 51 Id. 52 Id., at 553.

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transfer zone.53 Sometime later, while another request by Bethel was pending, the County Council passed a zoning amendment which prohibited a landowner from building a private institutional facility on a property subject to a transferable development rights easement, which Bethel’s property was.54 In other words, Bethel would never be able to build a church on the subject property.

Bethel filed an action in district court claiming, among other things, that the County violated its rights under RLUIPA. The district court granted summary judgment in favor of the County on all claims.55 On appeal, the Fourth Circuit Court noted that the district court had committed two errors. First, the district court erred in applying the RLUIPA institutionalized persons standard to Bethel’s land use substantial burden claim.56 The Court noted that not a single appellate court had applied the institutionalized persons standard to RLUIPA land use claims. Instead, the Court said that “every one of our sister circuits to have considered the question has held that, in the land use context, a plaintiff can succeed on a substantial burden claim by establishing that a government regulation puts substantial pressure on it to modify its behavior.”57

Second, the Court found that the district court erred in “requiring Bethel to show that the County ‘targeted’ it in order to succeed on its substantial burden claim.”58 The Court pointed out that the plain language of RLUIPA’s substantial burden provision made no such requirements, and imposing one would be improper.59 Therefore, the Court found that there is no requirement to show targeting in a substantial burden claim.

Turning to the merits of the substantial burden claim, the Court first noted that “[w]hen a religious organization buys property reasonably expecting to build a church, governmental action impeding the building of that church may impose a substantial burden.”60 The Court maintained that this was true even though other properties may be available, since the “‘delay, uncertainty, and expense’ of selling the current property and finding a new one are themselves burdensome.”61 Applied to the facts of the case, the Court noted that Bethel had shown that churches were permitted in the zone and on the property at the time it was purchased by Bethel. Therefore, Bethel had presented sufficient evidence to raise a material question of fact about whether it “had a reasonable expectation of being able to build a church.”62 Further, the Court

53 Id. 54 Id., at 554. 55 Id. 56 Id., at 555. 57 Id., at 556 (citing Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007)). 58 Id. 59 Id., at 556-57. 60 Id. (citing Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007)). 61 Id. (citing Saints Constantine & Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895, 899-901 (7th Cir. 2005)). 62 Id., at 558.

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counted it significant that the County “prevented Bethel from building any church on its property, rather than simply imposing limitations on a new building.”63

The County attempted to argue that since Bethel already had existing facilities, any burden it might have would not be substantial. However, the Court said that Bethel had presented evidence that its existing facilities could not serve its needs, specifically in regard to the Altar Call, Communion, and service times and lengths.64 Therefore, there was a material question of fact and the district court erred in granting summary judgment to the County on the Substantial Burden issue.

Finally, the Court also stated that while the County had argued that any burden imposed by it on Bethel was in furtherance of its interest in “preserving agricultural land, water quality, and open space and managing traffic and noise in the rural density transfer zone,” the County had failed to present any evidence that its interest could not be accomplished by a less restrictive means.65 The Court stated that since that requirement of RLUIPA was not satisfied, summary judgment was not proper.66 The Court reversed the summary judgment of Bethel’s Substantial Burden claim and remanded the case to the district court.

III. Equal Terms

There have also been cases addressing the equal terms provision of RLUIPA. The first case comes from the Seventh Circuit and an Illinois district court. In Irshad Learning Ctr. V. County of Dupage67, the district court found that an Islamic learning center had failed to identify suitable secular comparators for its equal terms RLUIPA claim. In this case, Irshad Learning Center (“ILC”) was an Islamic religious institution which conducted activities such as prayer services and youth education sessions in DuPage County, Illinois.68 After renting various properties for its activities, ILC sought to purchase property for a permanent facility. ILC found and purchased property in unincorporated Naperville, DuPage County, Illinois (“County”).69 The property contained a single-family residence that had been converted into a private school by the previous owner.70 The property adjoined single-family residences on three sides. The previous owners of the property had been granted a Conditional Use Permit (CUP) to use the property as a private school.71 ILC would have been able to use the property under exactly the same conditions as the previous owners had used the property and had been approved by the County Board.72 The

63 Id. (citing Westchester Day Sch., 504 F.3d at 352). 64 Id. 65 Id., at 559. 66 Id. 67 937 F. Supp. 2d 910 (N.D. Ill. 2013). 68 Id., at 914. 69 Id., at 915. 70 Id. 71 Id. 72 Id., at 916.

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zone in which the property was located permitted religious uses if the owner secured a CUP.73 In December of 2008, ILC filed an application for Conditional Use to use the property as a “religious institution.” ILC admitted that its proposed use would be more extensive than the previous owner.74 At the public Zoning Board hearing for ILC’s application, several property owners from the area surrounding ILC’s property (“the Objectors”) spoke against ILC’s proposed use. The Objectors disputed ILC’s account of its intended use and argued that ILC actually planned to make much more intensive use of the property than it had stated to the Board.75 The Zoning Board continued the hearing several times until it finally recommended denial of ILC’s application in June of 2009.76

The application was remanded back the Zoning Board by the County Development Committee (“CDC”) upon request of ILC.77 However, the Zoning Board again voted to deny ILC’s application.78 After several more hearings, application amendments, and resistance from the Objectors, ILC finally obtained conditional approval from the CDC and went before the County Board for final approval.79 Before the hearing with the County Board, an organization called ACT! For America e-mailed the members of the County Board and claimed that ILC was tied to terrorist organizations and meant to spread “radical-jihadist Islamic ideology.”80 The Board eventually voted to finally deny ILC’s application.81

ILC brought suit against the County alleging, among other things, violations of RLUIPA. Both parties brought motions for summary judgment.82 In evaluating ILC’s as-applied equal terms RLUIPA claim, the district court stated that ILC must show that religious and secular land uses had not been treated that same from the standpoint of an acceptable zoning criterion.83 ILC argued that the County treated it on less than equal terms as compared to secular institutions since the County had granted Conditional Uses freely to secular institutions in similar circumstances as ILC.84

First, ILC proposed using the Balkwill School as a comparator. The Balkwill School was the school operated on the property by the previous owners.85 ILC claimed that its application had received less favorable treatment than the Balkwill School’s application.86 The Court first noted that a “[C]onditional [U]se application from a religious institution…be given the same 73 Id. 74 Id., at 918. 75 Id., at 920-21. 76 Id., at 924-25. 77 Id., at 926. 78 Id. 79 Id., at 930. 80 Id. 81 Id., at 931. 82 Id. 83 Id., at 932 (citing River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 373 (7th Cir. 2010)). 84 Id., at 933. 85 Id. 86 Id.

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review and approval process as would a Conditional Use application from a secular institution…”87 However, the Court found that the Balkwill School was not an adequate comparator for RLUIPA equal terms purposes. The Court pointed out that ILC’s proposed use was “substantially different” than the Balkwill School’s permitted use.88 The Court concluded that since ILC’s proposed use would be substantially more strenuous on the property than the Balkwill School’s use, the two institutions were substantially different in regard to “relevant zoning criteria.”89 Thus, the Balkwill School was not a valid secular comparator.

Next, ILC proposed New Day Montessori Day Care (“New Day”) as a similarly situated comparator. 90 ILC argued that New Day was treated more favorably in regard to its Conditional Use application, which was approved in about two months.91 The Court stated that, while ILC had shown some differential treatment, it had not shown or made any argument suggesting that New Day was similar than ILC with respect to any relevant zoning criterion.92 The Court concluded that, without this showing, the County was entitled to summary judgment on the RLUIPA Equal Terms claim.

The Sixth Circuit has not yet developed a framework for defining “equal terms” under RLUIPA. In 2013, a district court in Michigan declined to adopt any particular test when ruling on motion to dismiss a Muslim organization’s complaint. In Muslim Cmty. Ass’n of Ann Arbor & Vicinity v. Pittsfield Charter Twp.,93 Plaintiff operated a full-time Islamic school known as Michigan Islamic Academy (“MIA”) in Ann Arbor, Michigan.94 As the local Muslim population continued to grow, MIA’s existing facilities were no longer adequate for its needs.95 Consequently, MIA purchased property in Pittsfield Township with the intention of building a new school and community center thereon.96 The property was zoned to be “exclusively residential,” but schools were a permitted use according to the Township Zoning Ordinance.97 Additionally, MIA received encouragement from Township officials that there would likely be no problems in obtaining the necessary approval for the school on the property.98 However, MIA experienced opposition from the very beginning when it submitted a petition to rezone its property in order to build its facility.99 The Township hired an independent outside planner to evaluate MIA’s petition (which it had apparently never done before), required MIA to conduct an intensive and costly traffic study (another unusual requirement), and required MIA to make a

87 Id. 88 Id., at 934. 89 Id., at 935. 90 Id., at 936. 91 Id. 92 Id. 93 947 F. Supp.2d 752. 94 Id., at 757. 95 Id. 96 Id. 97 Id., at 758. 98 Id. 99 Id.

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number of changes to its original plan.100 After meeting all of the Township’s demands, MIA finally received approval from the outside planner.101 However, at several public Planning Commission meetings held regarding MIA’s petition, many residents of the surrounding area voiced their disapproval of the plan, some even expressing “animus to the Islamic faith.”102 The Planning Commission ultimately denied MIA’s petition.103

MIA filed suit in the District Court for the Eastern District of Michigan and alleged, among other things, violations of RLUIPA’s equal terms clause. The Township moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In evaluating MIA’s equal terms claim, the Court noted that the Sixth Circuit has not yet defined the meaning of “equal terms.”104 The Court then went on to describe the tests used by the Eleventh, Third, and Seventh Circuits.105 However, rather than adopting a particular test, the Court declined and stated that it did not need to adopt a particular test to rule on the Township’s motion.106 The Court noted that MIA had presented a number of secular and Christian comparators in its pleadings.107 The only opinion expressed by the Court regarding the analysis of the comparators was that it would be a “fact intensive analysis.”108 Ultimately, the Court concluded that MIA had alleged sufficient facts about its proposed comparators to survive a motion to dismiss, and that it would be unnecessary, even against the Rules of Civil Procedure, to attempt to “allege every fact relevant to whether the cited comparators are similarly situated in all relevant respects.”109 Ultimately, the Court denied the Township’s motion to dismiss with regard to the RLUIPA equal terms claim.

IV. Nondiscrimination

RLUIPA’s nondiscrimination provision reads as follows:

No government shall impose or implement a land use regulation that discriminates against any assembly or religious institution on the basis of religious or religious denomination.

42 U.S.C. § 2000cc(b)(2). There are very few cases that deal directly with this provision of RLUIPA, and 2013 was no exception in that regard. However, the Pittsfield Court did address nondiscrimination briefly.

100 Id. 101 Id. 102 Id. 103 Id. 104 Id., at 766. 105 Id. 106 Id., at 766-67. 107 Id. 108 Id. 109 Id.

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As stated above, the Pittsfield case was about an Islamic religious institution (MIA) which was attempting to build a religious school and community center in Pittsfield Township, Michigan.110 When MIA brought suit after its denial by the Township, it included a claim under RLUIPA’s nondiscrimination provision.111

In discussing MIA’s nondiscrimination claim, the Court first noted that it was not able to locate any Sixth Circuit decisions discussing a claim under the nondiscrimination provision of RLUIPA.112 Significantly, the Court did, however, state that what cases it did find suggest that “a nondiscrimination claim under RLUIPA may not necessarily require proof of a similarly situated entity treated differently than the plaintiff.”113 To determine the pleading requirements for MIA’s nondiscrimination claim, the Court cited a Supreme Court employment discrimination case and used that authority to conclude that MIA’s complaint did not need to “contain specific facts establishing a prima facie case of discrimination.”114 This was because such a prima facie standard “is an evidentiary standard and not a pleading requirement.”115

For pleading purposes, the Court concluded that MIA simply needed to allege facts sufficient to create an inference that the decision to deny its application for rezoning was based on MIA’s religious beliefs.116 The Court determined that MIA had don this and thus denied the Township’s motion to dismiss MIA’s nondiscrimination RLUIPA claim.117

V. Exclusion and Limits

The exclusion and limits portion of RLUIPA is also seldom-addressed by courts. The provision reads:

No government shall impose or implement a land use regulation that—

(A)totally excludes religious assemblies from a jurisdiction; or

(B)unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

42 U.S.C. § 2000cc(b)(3). This portion of RLUIPA was briefly addressed in 2013 by the Seventh Circuit in Eagle Cove Camp & Conf. Ctr., Inc. v. Town of Woodboro.118

110 See supra, notes 89-99. 111 Pittsfield, 947 F. Supp.2d at 764. 112 Id., at 765. 113 Id. (citing Church of Scientology of Georgia v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1371 (N.D. Ga. 2012)). 114 Id. (citing Swierkiewicz, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). 115 Id. (citing Swierkiewicz, 534 U.S. at 512). 116 Id. 117 Id., at 765-66. 118 734 F.3d 673 (7th Cir. 2013).

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In this case, Plaintiff Eagle Cove Camp & Conference Center, Inc. (“Eagle Cove”) sought to build a year-round Bible camp in the Town of Woodboro, County of Oneida, Wisconsin.119 To that end, Eagle Cove purchased property in Woodboro near Squash Lake. The parcels owned by Eagle Cove were zoned Single Family Residential and Residential and Farming.120 The zones in which the property was located are the most restrictive zones in the County so as to provide for “quiet seclusion of families.”121 Several years earlier, in 2001, Woodboro had voluntarily given up its zoning authority to the County when it agreed to adhere to the Oneida County Zoning and Shoreline Protection Ordinance (“OCZSPO”).122 Therefore, ultimate zoning decisions regarding the property were made by the County rather than the Town.123

In order to build the proposed Bible camp, Eagle Cove submitted a petition to rezone its property in December 2005.124 After holding multiple meetings regarding the petition, Woodboro recommended that the County deny Eagle Cove’s rezoning petition.125 At the County level, the petition was denied, as the County found that the Bible camp would “conflict with the majority single-family usage in Squash Lake and land use regulations set forth in the Woodboro Land Use Plan.”126

In 2008, Eagle Cove again attempted to obtain approval for its Bible camp, this time bringing an application for a conditional use permit (“CUP”).127 Again, Woodboro recommended that the County deny the application for a CUP, for much the same reasons that it had recommended denial of the rezoning petition.128 The application was also denied by the County Zoning Committee and the Oneida County Board of Adjusters.129 Eagle Cove subsequently filed suit against the County and Woodboro in the United States District Court for the Western District of Wisconsin alleging, among other things, violations of RLUIPA’s exclusion and limits clauses.130

The district court granted summary judgment in favor of the County and Woodboro on all claims.131 In particular, the district court found that neither Woodboro nor the County prohibited

119 Id., at 676. 120 Id., at 677. 121 Id. 122 Id., at 676. 123 Id. 124 Id., at 677. 125 Id. 126 Id. 127 Id. 128 Id., at 677-78. 129 Id., at 678. 130 Id. 131 Id.

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religious assemblies from their jurisdictions. Additionally, the district court rejected Eagle Cove’s unreasonable limitations claim.132

On appeal, the Court first addressed Eagle Cove’s total exclusion claim.133 Eagle Grove argued that Woodboro had violated RLUIPA’s total exclusion provision since Woodboro did not allow year-round Bible camps within its borders.134 The Court rejected this argument. First, the Court noted that since Woodboro had submitted to the OCZSPO, it no longer had any land use authority over its jurisdiction because all such authority belonged to the County.135 Woodboro only served “a limited, consultative role in determining the town’s zoning regulations.”136 Further, the Court observed that no total exclusion claim could survive against the County since the County permitted year-round Bible camps in thirty-six percent of the land in Oneida County, just not on Eagle Cove’s property.137 Therefore, neither Woodboro nor the County did, in fact, totally exclude religious assemblies from the jurisdiction.138 The Court therefore affirmed the district court’s summary judgment against Eagle Cove’s total exclusion claim.

The Court also affirmed the district court’s grant of summary judgment against Eagle Cove’s unreasonable limitations claim.139 Eagle Cove had argued there was “at least a genuine issue of material fact as to whether reasonable opportunities exist to build the proposed Bible camp within the County.”140 The Court first noted that “reasonableness is determined ‘in light of all the facts, including the actual availability of land and the economics of religious organizations.’”141 The Court then pointed out that the OCZSPO allowed for religious uses throughout the County and even on Eagle Cove’s property.142 The Court said that Eagle Cove could have looked for other property in the County to build its Bible camp if it so desired.143 The Court concluded that, if anything, Eagle Cove was the unreasonable party since it insisted on building the Bible camp on a property that did not allow for it when there were other places in the County that would allow for the camp.144 The Court affirmed the summary judgment in favor of Defendants.

132 Id. 133 Id., at 679. 134 Id. 135 Id., at 679-80. 136 Id., at 680. 137 Id. 138 Id. 139 Id., at 682. 140 Id. 141 Id. (citing Vision Church v. Village of Long Grove, 468 F.3d 975, 989-90 (7th Cir. 2007)). 142 Id. 143 Id. 144 Id.

14

Conclusion

As RLUIPA law continues to develop and the Supreme Court continues to deny certiorari, the various circuit courts continue to develop and refine their own interpretations of the law. This has made for an area of the law that is nuanced and, at times, unpredictable. Some parts of RLUIPA, such as the “nondiscrimination” and “exclusion and limits” clauses, are only just beginning to be extensively litigated. This makes the need for specialized RLUIPA attorneys even greater. The future of RLUIPA figures to be exciting, compelling, and fast-changing.

American Bar Association Section of State and Local Government Law and Section of Public Contract Law

2014 Spring Meeting and 9th Annual State & Local Procurement Symposium

April 24-25, 2014 Asheville, NC

Recent Developments in Comprehensive Planning Presenter and Co-Author, Jennifer Bragar

jbragar@gsblaw.com 503.228.3939

Co-Author, Ed Sullivan esullivan@gsblaw.com

503.228.3939

GSBLAW.COM NorthwstLandLawForum.com

ANCHORAGE BEIJING NEW YORK PORTLAND SEATTLE WASHINGTON, D.C.

2

RECENT DEVELOPMENTS IN COMPREHENSIVE PLANNING by Edward J. Sullivan* and Jennifer Bragar**

I. Introduction The State and Local Government Section of the American Bar Association undertakes an

annual survey of state and federal cases dealing with the role of the comprehensive plan

(sometimes called the “General” or “Master” plan in some states) in land use regulation. This

year’s survey covers the period October 1, 2012 through September 30, 2013.

That survey and this article are further refined to illustrate the use of three modes of

perception of the comprehensive plan by state legislatures and state courts. The first mode, the

“unitary view,” is that planning is neither essential nor possibly even relevant to zoning and land

use regulation and it is the local zoning ordinance that is dispositive. The second view, the

“planning factor view,” is that a plan is relevant, but not necessarily dispositive of the validity of

a land use regulation. The final view, the “planning mandate” view, is that planning is essential

to land use regulation. Although many states have similar zoning and planning laws derived

from legislation suggested by the United States Department of Commerce in the 1920s,1 state

*B.A., St. John's University (N.Y.), 1966; J.D., Willamette University, 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate, Portland State University, 1974; M.A. (Political Thought), University of Durham; Diploma in Law, University College, Oxford, 1984; LL.M., University College, London, 1978. ** B.A., University of California, Santa Cruz, 1998; J.D., Northwestern School of Law, Lewis and Clark College, 2007.

The authors are indebted to Jonathan Quinsey, degree expected, Lewis & Clark Law School 2013, B.A. Arizona State University, 2010, for the initial research in the preparation of this article. 1 About three-quarters of the states enacted legislation based on the Standard Zoning Enabling Act, written by a “blue-ribbon” committee under the auspices of the United States Department of Commerce. See ADVISORY COMM. ON ZONING, U.S. DEP’T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT UNDER WHICH MUNICIPALITIES MAY ADOPT ZONING REGULATIONS (rev. ed. 1926), available at http://www.smrpc.org/workshops/ZBA%20Workshop%20April%2029%202009/A%20Standard%20State%20Zoning%20Enabling%20Act,%201926.pdf. About half the states adopted the suggested enabling legislation for planning that was authored by the same committee in 1928 and known as the Standard City Planning Enabling Act. See http://www.planning.org/growingsmart/pdf/CPEnabling%20Act1928.pdf.

3

courts have not been uniform in their interpretation of this legislation and we note that states

have seen fit to amend or revise their enabling legislation over time to deal with that relationship.

Some of the confusion is derived from the requirement in the model act relating to

zoning, which requires land use regulations to be “in accordance with a comprehensive plan;”2

however, the model act relating to planning does not use the words “comprehensive plan,”

although that suggested legislation uses the terms “master plan” or “city plan.”3 Even greater

confusion arises from the fact that zoning regulations (as opposed to plans) have been the object

of legal scrutiny, because they are written to be regulations, are more precise in their limitations

on land use and apply on a property-by-property basis. As a result, planning was seen to be less

essential to the future of a community and might be seen as superfluous or worthy of a lesser

priority place in terms of funding or effort. Thus communities may well have zoning, but no

plan, or a plan that was not viewed as binding.

In American planning law history dealing with the relationship between planning and

land use regulation, the unitary theory was the dominant view for many years.4 However, there

were voices crying in the wilderness for a more rational approach. The late Charles Haar wrote

two important and prophetic law review articles on the subject5 and advocated a fundamental

rethinking of that relationship. Similarly, Professor Daniel Mandelker has examined the cases

and statutes to suggest the ambiguities of the two model acts should be resolved to express the

2 Standard State Zoning Enabling Act, note 1, supra. at §3. 3 See Standard City Planning Enabling Act, note 1, supra. 4 The leading case for that view is Kozesnik v. Twp. of Montgomery, 131 A.2d 1 (N.J. 1957). 5 Haar, “In Accordance with a Comprehensive Plan,” 68 Harv. L. Rev. 1154 (1955) and The Master Plan: An Impermanent Constitution, 20 LAW & CONTEMP. PROBS. 353 (1955).

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subordination of land use regulation to planning.6 These, and others,7 may have had some

influence in persuading courts and legislatures to move away from the unitary view, as has been

demonstrated in the reports over the last few years.

A final aspect of our report is a discussion on the interpretation of plans and amendment

of plans, which both become more important as plans themselves gain credence. The thesis

throughout these reports is that plans are credible limitations on land use regulations - in some

cases, determinative of the result and in most cases, a factor in the outcome.

II. Unitary View

Although the view that the comprehensive plan is found in the zoning ordinance and

maps was once the majority view, very few states now adhere to that analysis. Connecticut has

the most cases in this category, continuing its trend for the last several years of this report.

In a state where courts consistently find that the zoning regulations and zoning map

comprise the municipal comprehensive plan,8 it comes as no surprise that a Connecticut

6 See e.g., Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 76 MICH. L. REV. 899 (1976). 7 See also Sullivan and Kressel, Twenty Years After—Renewed Significance of the Comprehensive Plan Requirement, 9 URB. LAW. ANN. 33 (1975) and Sullivan and Michel, Ramapo Plus Thirty: The Changing Role of the Plan in Land Use Regulation, 35 Urban Lawyer 75 (2003). The American Planning Association has taken an aggressive role in advocating credence to plan, particularly in its “Growing Smart” legislative initiative. See http://www.planning.org/growingsmart/. 8 See West Lordship Beach Corp. v. Stratford Board of Zoning Appeals, No. CV126027976S2013, WL 4734876 at 6 (Conn. Sup. Ct., Aug. 12, 2013) (approving a variance to permit the reconstruction of a seasonal cottage over an existing footprint). David Ferace v. Town of Waterford Zoning Board of Appeals. 2013 WL 3970232 at 3 (Conn. Sup. Ct. July 15, 2013) (a variance must not substantially affect the comprehensive zoning plan). Ciofeletti Construction Co. v. Danbury Zoning Commission, 2013 WL 1715705 at 3, No. LNDCV094064864 (Conn. Sup. Ct., April 2, 2013) (denial of a zone change requests upheld where the requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community). E&F Associates, LLC v. Zoning Board of Appeals of the Town of Fairfield, No. CV126028919S, 56 ConnLRptr 334, at 5 (Conn. Sup. Ct., June 26, 2013) (the court determined setback variances that would enable construction of a second story were consistent with the comprehensive plan where restaurants are permitted uses in the zone and other buildings in the area are multi-storied structures). Amendola v. Zoning Board of Appeals for the Town of West Haven, No. NNHCV095031710, 2013 WL 3970251, at 7 (Conn. Sup. Ct., July 13, 2013) (variances that allowed additional living area and attached garage are in accord with the residential use articulated in the regulations for the property located in the R-2 district and do not substantially

5

appellate court upheld a city’s decision to grant a setback variance for development on a small

Norwalk Island because it did not substantially affect the city’s comprehensive zoning plan.9

The case explicitly relies on the “we know it when we see it” philosophy,

“They [plaintiffs] ask at what point a variance impairs the comprehensive zoning plan. Our answer is: Not in this case.”10

The court was persuaded that the setbacks under the comprehensive zoning plan from the mean

high water mark overlap, which if enforced prevent any structure from being built on the

island.11 Further the court criticized plaintiffs for failing to demonstrate why a small boathouse

on the island affects the comprehensive plan any more than the dwelling houses on the larger

Norwalk Islands.12

In Phillips Supply Co. v. City of Cincinnati, a group of local businesses challenged

relocation of a homeless shelter for inconsistency with the comprehensive plan.13 The court

found no statutory requirements in Ohio that cities enact a comprehensive community plan.14

But even if there were such a requirement, the city’s allowance of a shelter on the subject

property was consistent with the Homeless to Homes Plan, Cincinnati’s adopted comprehensive

impact the comprehensive zoning plan). Allstar Sanitation, Inc. v. Bridgeport Planning and Zoning Commission, No. CV106005554S, 2012 WL 66434907 (Nov. 28, 2012) (the court found no injury when the plaintiff had not applied for a rezoning of its property and no vote denied such rezoning). 9 Schulhof v. Zoning Board of Appeals of the City of Norwalk, 74 A3d 442, (Del. Ct. App., 2013). 10 Id. at 451. On the other hand in 347 Humphrey Street, LLC v. City of New Haven Board of Zoning Appeals, No. NNHCV116020538S, 2013 WL 1943774 (Conn. Super), the failure to make adequate findings with regard to criteria that included reference to the City’s comprehensive plan resulted in remand of four variance approvals. 11 Id. 12 Id. at 452. 13 985 N.E.2d 257, 260 (Ohio Ct. App, 2012). Although the court ultimately found individual standing, the plaintiffs’ argument for taxpayer standing was denied because general enforcement of the comprehensive plan is not grounds for taxpayer standing. Id. at 264. 14 Id. at 270-271.

6

plan for the homeless.15

In another Ohio case, Apple Group Ltd. v. Board of Zoning Appeals Granger Township,

Apple sought a variance to increase residential density on a portion of an 88 acre site (setting

aside a portion of the site as open space), rather than meet the minimum two acre lot requirement

of the zone.16 The variance was denied and Apple appealed claiming the township’s zoning

ordinance was unconstitutional because the town does not have a comprehensive plan that is

separate from its zoning resolution.17 The court found that although a comprehensive plan is

usually separate and distinct from a zoning ordinance, it is possible for an ordinance in and of

itself to be a comprehensive plan.18

Apple further argued that the zoning ordinance did not meet the requirements of a

comprehensive plan, and as a result the township’s resolution denying the variance request was

not made “in accordance with a comprehensive plan.”19 Again the court ruled in favor of the

township and concluded that the zoning resolution functions as a comprehensive plan because it

covers many factors, including but not limited to land use, commercial development, and

conditional zoning terms.20

A Louisiana court similarly held, in the case of a denial of a truck stop casino permit, that

a parish is not prohibited from passing zoning regulations without first approving a

15 Id. 16 Apple Group Ltd. v. Board of Zoning Appeals Granger Township, Nos. 12CA0065-M, 12CA 0068-M 2013 WL 5437644 (Ohio Ct. App. Sept. 30, 2013). 17 Id. at 2. 18 Id. 19 Id. at 3. 20 Id. at 5. For each district, the zoning resolution sets out use, height, and area restrictions; and defines with certainty the location and boundaries of each zone. Id. at 6.

7

comprehensive plan.21 The court ruled that an ordinance creating a zoning district has been

found to qualify as part of a comprehensive plan and the ordinance in question that prohibited

truck stop casinos shared the requisite relationship to heath, safety and welfare of the public to

constitute comprehensive planning.22

In South Dakota, the Supreme Court affirmed a decision of Rapid City to deny a rezone

application for a portion of property zoned within the Flood Hazard Zoning District.23 Here, the

city’s zoning regulation acted as a comprehensive plan because the floodway was meant to

ensure the community’s safety and minimize property damage in the event of future flooding.24

Thus, where local regulations focus on public health, safety and welfare considerations,

courts will uphold decisions that conclude such regulations constitute a comprehensive plan.

III. Planning Factor Cases

For many years now, the trend in cases relating to the significance of the

comprehensive plan is that in which the plan is at least a factor or consideration in a judicial

analysis. This past year has seen a similar trend.

A Georgia decision, City of Suwanee v. Settles Bridge Farm, LLC,25 illustrates the point.

Plaintiff landowner successfully brought an inverse condemnation suit against a city for

amending its zoning regulations to provide that schools were a use permitted only by special use

permit, when they were previously an outright permitted use and must show, inter alia that they

21 Larussa Enterprises, Inc. v. Gordon, No. 2012 CA 0896 (Louisiana Ct. App. Sept. 9, 2013) at 5. 22 Id. at 8. 23 Parris v. City of Rapid City, 834 NW2d 850, 852 (South Dakota Sup. Ct., 2013). 24 Id. at 855-856. The flood hazard zone protected upstream property and operated to ensure the health, safety, and general welfare of the city’s citizens was maintained. Id. 25 738 SE2d 597 (Ga., 2013).

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are not inconsistent with the overall objective of the comprehensive plan.26 The Georgia

Supreme Court found no taking with the addition of this discretionary evaluative requirement.27

In a Kentucky case, Yocum v. Legislative Body of the City of Fort Thomas,28 the court

dealt primarily with other issues, but noted a Kentucky statute that required a zoning map

amendment to be “in agreement with the adopted comprehensive plan.”29 The local government

so found, but plaintiff contended that one of the plan elements regarding reducing density as

slopes increased should govern.30 Respondent pointed to other plan language that obviated the

slope policy in the area of the subject land use change and the court agreed.31

In Irshad Learning Center (“ILC”) v. County of Dupage, a Muslim religious and

educational group sought a conditional use permit to use property in the county for religious

26 Id. at 598-99. 27 To similar effect is J. D. Francis, Inc. v. Bremer County Board of Supervisors, 828 NW2d 325 (Ia., 2013) where the denial of a zone change consistent with the comprehensive plan was used as part of an inverse condemnation claim. Respondent Board’s decision, which the court upheld, included the following: * * * The plan itself, in the implementation section, notes that consistency with the plan is only one factor

to be considered along with compatibility with surrounding land uses, minimal impact on adjacent property, density of proposed use, impact on traffic generation and flow, and environmental impact, among others.

The court went on to say that it was legitimate to counterbalance other plan policies and land use designations and that the plaintiff was not automatically entitled to a zone change. 28 No. 2011-CA-002191-MR, 2013 WL 375574 (Ky. App. Ct., Feb. 1, 2013). 29 K. REST §100.213(1). 30 Id. at *2-3. 31 Id. at *3. See also Bell v. Meade County Fiscal Court, No. 2011-CA-000369-MR, 2013 WL 1091239 (Ky. App., March 15, 2013) in which the court noted an exception to the general statutory requirement of agreement with the comprehensive plan if the existing zoning classification is “inappropriate” and the proposed classification “appropriate” or that there have been major changes in the area that were not anticipated in the original plan and have “substantially altered the basic character of the area.” K.R.S. §100.213(1)(a) and (b). Thus, it appears that plan conformity in Kentucky is a factor in the evaluation of some land use permits. Similarly, in Pittsfield Investors LLC v. Pittsfield Charter Township, No. 08–000151–CH, 2013 WL 1165247 (Mich. App. Ct., March 21, 2013), a rezoning denial was challenged by plaintiffs who asserted that some of the Township’s stated interests (including conflicts with its comprehensive plan) were not advanced. The court concluded that a plaintiff must demonstrate that none of those interests are advanced and the trial court finding that there was no question of fact involving whether comprehensive plan factor was advanced, among other factors, was upheld.

9

services and educational purposes.32 The county found that ILC had not demonstrated its

application was in harmony with the general purpose and intent of the Zoning Ordinance, and

will not be injurious to the public welfare, or in conflict with the comprehensive plan.33

However, the court disagreed with the county’s conclusions because the record did not support

the “parade of horribles” that the objectors believed would cause too many impacts.34 Rather,

the court concluded that ILC specifically limited the number of people who could be on the site

to 100 and that the county’s denial findings were the product of speculation and factual errors.35

Moreover, the court concluded that acting administratively, the county is bound by its zoning

ordinance, and not the comprehensive plan, and thus, the County may not rely on its

comprehensive plan to justify the decision to deny an application where the proposed use is

recognized as a conditional use by the zoning ordinance.36 Thus, the court granted IRC summary

32 937 F Supp2d 910, 914 (Ill. Dist Ct. 2013). 33 Id. at 945. 34 Id. at 946. The parade of horribles included concerns related to wedding ceremonies and other special events. A much more extensive set of findings was given credence by the Minnesota Court of Appeals in Ruhland v. City of Eden Valley, No. A13-0110, 2013 WL 3285019 (Minn. App. Ct., July 1, 2013) when a neighbor challenged a rezoning to a residential\commercial reserve classification to accommodate the landowner’s landscaping business. The court cited Minn. Sta. §462.352(5) (2012) to the effect that a plan is a compilation of policy statements, goals, standards and maps to guide development. While it is advisory, it is entitled to “some weight.” In this case, the court found sufficient findings, including those based on the comprehensive plan, to affirm the grant of the rezoning. 35 Id. at 947. Interestingly, the court had earlier in the opinion denied RLUIPA challenges even though the record included contentions from the objectors that ILC was synonymous with the Alavi Foundation and had connections to terrorist organizations, and intended to use the property to spread radical-jihadist Islamic ideology. Id. at 930-949. The County, at least in the court’s view, did not base its decision on this testimony when it applied the code to the decision. 36 Id. at 952. Similarly, in Wyoming case, findings on a project’s general compatibility with the comprehensive plan are no substitute for specific findings required by the county’s own land development regulations, and the county’s decision was remanded for to consider a development’s improvement to scenic views. Wilson Advisory Committee v. Board of Commissioners of Teton County, 292 P.3d 855, 869 (Wy. Sup. Ct. 2012).

10

judgment because the county improperly denied the application based on conflict with the

comprehensive plan and the county could have reasonably conditioned approval of the use.37

In Roundstone Development, LLC, v. City of Natchez, the Mississippi Supreme Court

affirmed the city’s denial of an affordable housing proposal because it was not in accord with the

general plan for development.38 As a prerequisite to the development proposal, the city

determined that a zone change would be required because the proposed use did not fit with the

general plan’s open-land designation.39 The court determined that by requiring reclassification

of the property to a single-family zoning designation, the city is able to ensure that the proposed

use fits within the city’s general plan of development.40

In an unpublished Minnesota case, the court affirmed a city’s approval of a requested

rezoning of property from a designation as a single and two-family residential zoning

designation to commercial reserve to enable the applicant to use the site for his landscaping

business.41 The court affirmed, finding that

“Although entitled to some weight, a comprehensive plan is ‘generally viewed as advisory and the city is not unalterably bound by its provisions.’”42

Further, the court concluded that the city’s finding that rezoning to a commercial reserve was

supported by the plan’s policy to encourage development of commercial uses along highway

corridors.43

37 Id. at 955. In contrast, a Washington court upheld a city’s decision not to extend water outside the urban services boundary because such extension would be inconsistent with the comprehensive plan. Governors Point Development Co. v. City of Bellingham, No. 68079–0–I, 175 WashApp 1008, at 14 (Wash. Ct. App. 2013). 38 105 So3d 317, 318 (Miss. Sup. Ct. 2013). 39 Id. at 320. 40 Id. at 321. 41 Ruhland v. City of Eden Valley, No. A13-0110, 2013 WL 3285019 (Minn.. Ct. App., July 1, 2013). 42 Id. at 3.

11

In a Montana case, Helena Sand and Gravel, Inc. v. Lewis and Clark County Planning

and Zoning Commission,44 plaintiff landowner alleged that defendant county engaged in “reverse

spot zoning” in adopting zoning for an area so that mining was disfavored.45 The court said that

conformity to a comprehensive plan is relevant to the spot zoning analysis.46 The court sent the

matter back on other issues; however conformity to the comprehensive plan appeared to be a

principal determinant of the reverse spot zoning analysis.

Three minor and unreported New Jersey cases also point to the plan as a factor in

evaluating land use decisions in that state. In Laborim v. Mehnert,47 the court upheld the grant of

a variance, noting that applicants must demonstrate, inter alia, that an approval will not

“substantially impair the intent and purpose of the zone plan and zoning ordinance” and

declaring the local decision sufficient for that purpose.48 In Riya Cranbury Hotel, LLC v. Zoning

Board of Adjustment for the Town of Cranbury,49 the appellate court applied the same statute and

the Board’s evaluation of a use variance, but referred to the Town’s adopted master plan as the

43 Id. In a New Mexico Court of Appeals decision, Pecos River Open Spaces, Inc. v. County of San Miguel, __ P3d __ , No. 30,865, 2013 WL 309847, at *4 (NM Ct. App., 2013), the court agreed that appellant’s could use the comprehensive plan’s purposes for open space protection to establish a use as charitable for purposes of that state’s tax code. 44 290 P3d 691 (2012). 45 Id. at 694-95. 46 Id. at 700. The court said that compliance with the comprehensive plan or growth policy is “especially relevant” to the analysis. 47 No. A-6332-11T2, 2013 WL 3762892 (N. J. App. Ct., July 19, 2013). 48 Id. at *5. See N.J.S.A. 40:55D-70(c)(2). It is quite possible that the words “zone plan” evince an improper conflation of planning and zoning. In a condemnation context, whether the use of eminent domain is in the “public interest” included contemplation of the consistency of the use with the zoning ordinance. Norfolk Southern Railway Company v. Intermodal Properties, LLC, 71 A.3d 830, 843 (NJ Sup. Ct., 2013). 49 No. A-3803-11T4, 2013 WL 375564 (N.J. App. Ct. Feb. 1, 2013).

12

standard, without reference to the zoning ordinance.50 Finally, in Malashevitz v. Governing

Body of the Township of Little Egg Harbor,51 plaintiff challenged the grant of subdivision and

site plan review to a Wal-Mart development, claiming, inter alia, because of concerns in regards

to its effects on the Town’s master plan. The court found the trial court and the town had found

the proposal “substantially consistent” with the housing and land use elements of the master plan

and affirmed.52 However, the New Jersey statutes have other criteria,53 so the plan is not the

final word on validity.

In a New York case involving the appraisal of real estate taken for a station and parking

lot for commuter rail, Metropolitan Transportation Authority v. Longridge Associates, LP,54 the

50 Id. at 5. 51 No. A-2143-11T1, 2013 WL 2338607 (N.J. App. Ct., May 30, 2013). In contrast, in Rosa v. Billerica Planning Board, No. 09 MISC 392811 HMG, 2013 WL 3776958, (Mass. Land Court, July 15, 2013 ), the court explained that rules and regulations must be comprehensive, and reasonably definite enough so that owners may know in advance what is required, and that the Planning Board overstepped in its denial of a variance for a misreading of the town’s Zoning Bylaw. Id. at 6-7. 52 Id. at *3-4. See also In re Highlands Water Protection and Planning Council, 2013 WL 401274 (N.J. Sup. Ct. Feb. 28, 2013) (Council review of ordinance amendments only applies when the adopted regional plan is applicable). 53 For example in Malashevitz, the court found that the purposes of the New Jersey Municipal Land Use Law, set out in N.J.S.A. 40:55D2;(2) must be met, that it must comport with constitutional constraints on the zoning power and the municipality must follow procedural requirements for ordinance adoption. Id. at *3. The variance criteria applicable in Laborim and Riya also required that the variance relate to a specific piece of property, advance the purposes of the state’s Municipal Land Use Law, and be granted without substantial detriment to the public good, that the benefits of a grant substantially outweigh any detriments. See also GM Hock Penn LLC v. Zoning Hearing Board of Scott Township, No. 557 C.D. 2012, 2013 WL 3946279 (Pa. Comm., Feb. 1, 2013), in which the court determined that proposed uses in a challenged zoning action were not inconsistent with the Township’s comprehensive plan which had a policy of encouraging commercial developments at the I-80 Interchange, which could have been fulfilled in many ways. 54 961 NYS2s 369. In another New York case, Greater Huntington Civic Group v. Town of Huntington, 2012 NW Slip Op 52146 (2012), a Supreme Court judge affirmed a rezoning to a higher residential density, inter alia rejecting a challenge that the same constituted spot zoning and violated the Town’s comprehensive plan. The court noted that the plan itself recommended high density residential development between existing commercial or industrial uses and residential uses.

13

likelihood of the realization of more intense future commercial uses in the comprehensive plan

map, appeared to be a significant factor in the just compensation.55

Finally, a South Carolina case, Dunes West Golf Club, LLC v. Town of Mount Pleasant,56

involved a denial of rezoning of a portion of a golf course which had previously been placed in a

special zoning district, the Conservation Recreation Open Space (CRO) District.57 The rezoning

was governed by several local code factors, including its relationship with the local

comprehensive plan.58 In reviewing and upholding the denial, the South Carolina Supreme

Court found the Town did not gain any economic advantage over the golf course, but merely

preserved the golf course uses on lands previously designated for open space by its

comprehensive plan, subject to later evaluation of proposals to convert such land if appropriate.59

The decisions in which planning is a factor in evaluating a land use regulation or action

over the past year are consistent with results in similar cases of this nature.

IV. The Planning Mandate View

The notion that a comprehensive plan governs land use regulations and actions is still a

minority view, but in those states taking that position through statute or case law, the

implications are profound.

55 See especially Id. at *10-14. 56 737 SE2d 601 (SC, 2013). 57 Id. at 606. 58 Id. at 607. 59 Id. at 620-21. The principal issue in this case was whether a taking had occurred. The court used the plan as part of the balancing test used in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 125 (1978), but the case did not turn solely on the plan designation.

14

In California, the General Plan is the basis for a “consistency” determination for land use

plans and actions.60 The reach of that general requirement was at issue in LA Neighbors United

v. City of Los Angeles61 but the appellate court determined that a Community Plan

Implementation Overlay Ordinance of respondent to implement the community plans was

adopted under the General Plan and so did not require an environmental impact report under the

California Environmental Quality Act (CEQA).62

In Florida, another state with a statutory consistency requirement,63 an attempt to allow a

use prohibited by the Palm Beach County Comprehensive Plan was annulled in United States

Sugar Corporation v. 1000 Friends of Florida,64 where the court stated:

Whether a development order is consistent with a comprehensive plan is determined by comparing what the order permits, not what the current holder intends to do under the order. The current order permits general commercial mining, a use prohibited under the comprehensive plan. The burden is on the applicant to show that the development order conforms strictly to the comprehensive plan. * * * The adopted order is inconsistent with the plan. If in fact U.S. Sugar wants to mine in a manner consistent with the plan, then it

60 Cal. Govt. Code §65300 et seq. 61 2013 WL 1099017 (Cal. App., 2013). 62 The court said:

Because it is subordinated to the community plans it is intended to implement, the CIIP ordinance is not ‘an essential step leading to an ultimate environmental impact * * *’ [citation] * * *. The community plans are.

Id. at *6. Perhaps a more typical case involving the consistency requirement is Sierra Club v. County of Tehema, 2012 WL 5987582 (Cal. App., 2012) in which a plan update was allegedly inconsistent with the remaining provisions of the General Plan. Both the trial court and the District Court of Appeals found the County’s update to be consistent against a host of challenges. 63 Fla. Stats. Ann. §163.3215. The extent to which the plan is the governing document in Florida is also illustrated in Bee’s Auto, Inc. v. City of Clermont, 927 F. Supp.2d 1318 (M.D. Fla., 2012) in which a 2007 plan amendment would have allowed plaintiff’s auto repair shop and storage facility to continue despite its inconsistency with the plan if the landowner applied for a conditional use permit. Plaintiff refused to do so and brought a number of equitable and constitutional claims which were dismissed. See also Town of Ponce Inlet v. Pacetta, 2013 WL 3357520 (Fla. App.) where a property rights claim based on equitable estoppels was rejected because the Town’s comprehensive plan did not allow the use plaintiff desired, regardless of any discussions had with local officials. 64 2013 WL 4017136 (Fla. App.).

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should reapply and limit its application so that any order which grants the application would be properly consistent with the comprehensive plan.65

Another example of the ramifications of plan consistency is found in a Court of Federal

Claims case arising in Florida, Childers v. United States66 in which the court was called upon to

determine damages over a former railroad easement converted into a public way under the “Rails

to Trails” Act.67 Florida requires plan consistency,68 so the extensive opinion dealt with the

impacts of the future land use plan on valuation for 13 separate properties. The court accepted

testimony that a zone change conforming to the future land use plan is “automatic.”69

In Delaware, variances must be justified in terms of consistency with the local

comprehensive plan.70 In Minnesota, the denial of a certificate of appropriateness for a change

to a historically designated building was also governed by plan consistency requirements.71

65 Id. at *1-2. See also Seminole Tribe of Florida v. Hendry County, 114 So3d 1073 (Fla. App., 2013) in which state power plant siting statutes (Fla. Stats. Ann. §§403.501-.518) required a determination of local plan consistency. The applicant in this case, however, deliberately applied for local land use approval before filing under the siting act, received that approval, and then convinced the trial court that it could not review that determination because it was preempted. The appellate court determined, however, that the siting act did not apply to land use applications filed locally before a similar application was filed with the state’s power plant siting agency and remanded the case for a determination as to the validity of the local government determination of plan consistency. 66 112 Fed. Cl. 617 (2013). 67 16 U.S.C. §1247(d). 68 FLA. STAT. ANN. § 163.3164(6). 69 112 Fed. Cl. at 640, 643. Similarly, in Etzion v. Etzion, 972 NYS2d 143 (Sup. Ct., Nassau County 2013), a domestic relations case, the adoption of a new plan that had a significant effect on marital assets was a matter of public record and could not be the basis of a later motion to reopen the marital estate. 70 Friends of the H. Fletcher Brown Mansion v. City of Wilmington, 2013 WL 4436607 (Del. Sup.) at *5-8. Rhode Island takes a similar approach with special-use permits. Lloyd v. Zoning Board of Review, 62 A3d 1078 (R. I., 2013). See also MCF Communications, LLC v. Town of Portsmouth, 2012 WL 6706935 (D. R.I.). In a District of Columbia case, Kingman Park Civic Assn. v. Gray, 2013 WL 3871444 at *10 (D. D.C.), the issue of plan consistency was avoided because jurisdiction of that issue was with the District’s Zoning Commission, to which Plaintiff did not resort. 71 500, LLC v. City of Minneapolis, 837 NW2d 297 (Minn., 2013), citing Minneapolis, Minn., Code of Ordinances §§ 599.350(a)(6) and (c)(2) (2013), enacted pursuant to Minn. Stat. §462.357. (2013). The Court held that the plan:

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Similarly, a Missouri case72 reinforced a statutory requirement that urban renewal plans be

consistent with the local comprehensive plan.73

In Hawai’i, Kauai Springs, Inc. v. Planning Commission of the County of Kaua’i,74 the

Hawai’i Supreme Court reversed an intermediate court decision from 2013 which found the plan

to be a “guide” to development.75 The court accepted a much more robust view of the role of the

plan, as the county had done in its code:

“All actions and decisions undertaken by the County Council and the County Administration, including all County departments, agencies, boards and commissions, shall be guided by the vision statement, policies, and the implementing actions of the General Plan.”76

In Maryland, a complex case involving the role of the plan, as well as its interpretation,

brings to light the issue of plan consistency. In Pringle v. Montgomery County Planning

Board,77 petitioner challenged a development project with a “big box” component as inconsistent

with the “Germantown Employment Area Sector Plan” adopted by the Maryland-National

Capital Park and Planning Commission. The County’s zoning ordinance requires development

under the “TMX” (Transit Mixed Use) zone to be “consistent with the recommendations of the

* * * was the primary land use control for cities and supersedes all other municipal [ordinances] when [the

ordinances] are in conflict with the plan” [citing Mendota Golf, LLP v. City of Mendota Heights, 708 NW2d 162, 175 (Minn., 2006) * * *.

In City of Lake Elmo v. Nass, 2013 WL 3491161 (Minn. App.), the court affirmed an administrative law judge determination to allow detachment of property from a city based on the uses allowed in that plan. 72 Smith v. City of St. Louis, 395 SW3d 20 (Mo. SC, 2013). 73 See § 99.810.1(2), RSMo 2013. 74 Hawai’i Supreme Court No. SCWC-29440 (February 28, 2014). 75 ___ P3d ___, 2013 WL 1829587 (Ha. App.). 76 Kaua’i County Code § 7-1.4 (2000). (slip opinion, p. 70). See also the discussion of the role of the county general plan in land use controls at slip opinion 93-94 and note 46 at slip opinion 100-101. 77 69A3d 528 (Md. App. 2013).

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applicable master or sector plan.”78 Respondent Board found substantial consistency with the

sector plan, even though the approved project allowed a “big box” store a few blocks from a

transit stop, and did not follow every site design recommendation provided by the Sector Plan.79

The court noted that whether a plan is a guide or binding depends on both statute and

precedent, but concluded in this case:

Where, as here, “the local government has enacted a statute, ordinance, or regulation that links planning and zoning, ‘the status of comprehensive plans [is elevated] to the level of a true regulatory device.’”80

The court observed that when words such as “should” or “encourage” are used in a binding plan,

the respondent planning board need not view those words as binding, but did place a burden of

explaining why an objective that was “encouraged” was not implemented.81

Together, these cases illustrate a focus on the comprehensive plan as the standard for

review of local decisions when that approach is required by law.

V. Plan Interpretation

As plans become more significant, their interpretation becomes more important, as the

following cases demonstrate.

In a District of Columbia case, Durant v. District of Columbia Zoning Commission,82 the

issue of plan interpretation in the evaluation of a planned unit development was complicated by

78 Montgomery County Zoning Ordinance §59-C-14.213. 79 69A3d 528 at 532-33. 80 Id. at 534, citing Maryland-National Capital Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 985 A2d 1160, ___ (Md., 2009), which cited Mayor and Council of Rockville v. Rylyns Enter., Inc., 814 A2d 469 (Md., 2002). 81 Id. at 534-35. 82 65 A3d 1161 (D.C. App., 2013).

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what appeared to be conflicting plan policies.83 The court determined that the respondent

commission must balance “the occasionally competing policies and goals” of the plan and that, if

those policies and goals are addressed, the court would not substitute its judgment for that of

respondent.84 Because the Respondent Commission did not address three policies in making that

balance, the court remanded the matter.85

An important issue in plan interpretation cases is jurisdiction – which officer or body is

charged with making or reviewing interpretations. That point was made in a Florida case,

Seminole Tribe of Florida v. Hendry County,86 where an Indian tribe challenged a planned unit

development to construct a natural gas power plant and solar energy farm, allegedly in violation

of the local comprehensive plan. But because the challenge was not made in the correct statutory

manner,87 the court affirmed the dismissal of that claim.88

83 Under local law, the District’s Comprehensive Plan “[d]efine[s] the requirements and aspirations of District residents” and “[g]uides executive and legislative decisions on matters affecting the District and its citizens.” D.C. Code §1-306.01(b)(1)(2) (2012 Supp.). 84 65 A3d at 1167-68. 85 Id. at 1168-72. The court concluded at 65 A3d 1171: In light of what we see as the Commission’s failure expressly to address these contested issues, we

conclude that a remand for further consideration is required. In so concluding, however, we do not suggest that the Commission must exhaustively review, or even cite, every policy in the entire Plan: we hold only that it is insufficient to recite that a particular act is consistent with the Plan as a whole: “bare conclusion[s] will not do. * * * Our precedents require the Commission, when presented with a material contested issue, to address that issue and to explain its conclusion. * * *”

86 106 So3d 19 (Fla. App., 2013). 87 Fla. Stats. Ann. §163.3215(1), (3) and (4) (2011) require consistency challenges to be made to a development order in a de novo proceeding for declaratory or other relief, instead of certiorari proceedings, which are the usual vehicle for review of local development decisions. A similar result occurred in Oregon in Grabhorn, Inc. v. Washington County, 297 P3d 524 (Or. App., 2013), where the Court affirmed the dismissal of a challenge to a land use compatibility statement because it was brought in a court of general jurisdiction, but Oregon statutory law (Or. Rev. Stats. §197.825) vests exclusive jurisdiction over land use decisions with the Oregon Land Use Board of Appeals. 88 106 So3d at 22-23. In other Florida cases, Beyer v. City of Marathon, 2013 WL 5927690 (Fla. App.), an inverse condemnation claim was made against respondent, which denied a development for a dwelling, asserting that the recreational use of plaintiff’s island under the city’s plan precluded a finding that all economically beneficial

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In a Kentucky case, Masonic Homes of Kentucky v. Louisville Metro Planning

Commission,89 a statutory requirement that respondent review a cell tower application “in light

of its agreement with the comprehensive plan and locally adopted zoning regulations,”90 the

court summarily affirmed the grant of the permit.91

In a case where the county was implicated in removal of coquina rock formations that

protected the subject development from beach erosion, a North Carolina appellate court

supported the state’s approval of a sandbag project for The Riggings development to protect it

from further erosion.92 Although the state’s coastal management plan generally does not allow

permanent revetments, the court ruled that the substantial private property interests of the

homeowner outweighs the competing public interest to not place permanent sandbag revetments

on the beach.93 This decision allowed the state to grant a variance and avoid a takings claim.94

use of the land was precluded while in Galleon Bay Corp. v. Board of County Commissioners of Monroe County, 105 So3d 555 (Fla. App., 2012), petitioners were successful in reversing a determination that it would be “highly inequitable” for it to meet the current plan, given their commitments and expenditures, the provisions of the plan were balanced with those commitments and expenditures in the landowner’s favor. 89 2013 WL 462345 (Ky. App.). 90 K.R.S. 100.987. 91 The court concluded: After reviewing the record, it is clear the Commission’s decision was supported by substantial evidence.

Although Masonic presented evidence opposing the tower, [the applicant] presented a variety of evidence to show that it supplication was in agreement with the objectives of the comprehensive plan and zoning regulations. KRS 100.987(4)(a). Given the amount of evidence supporting the Commission’s action, we can find no error with the circuit court’s decision to affirm.

In a New Mexico case, Pecos River Open Spaces, Inc. v. County of San Miguel, 2013 WL 309847 (N.M. App., 2013), the court affirmed a trial court decision that determined that a comprehensive plan designation of open space entitled the landowners to a charitable use and exemption from property taxes.

92 Riggings Homeowners, Inc. v. Coastal Resource Commission of the State of North Carolina, 747 SE2d 301 (NC Ct. App., 2013). 93 Id. at 312. 94 Id. at 315.

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Finally in a Washington case, Chinn v. City of Spokane,95 petitioner challenged a

rezoning approval to redesignate an eight-lot block to allow taller buildings, claiming that action

violated a city requirement of conformity to a comprehensive plan.96 However, the trial court

decision dismissing the challenge was affirmed, because the plan language relied upon by the

petitioner was framed in precatory terms (“should,” “encourage,” “as a general rule”) and was

not a basis for challenging the rezoning.97

Plan interpretation cases in this period follow the accepted rules for interpretation of

statutes, thus providing a modicum of predictability to planning law.

VI. Plan Amendments

As with plan interpretation cases, plan amendment cases reflect the increasing

significance of plans, as the cases over the past year indicate.

In Latinos Unidos de Napa v. City of Napa,98 a California court rejected a challenge to

plan amendments for the housing element of the City’s General Plan and related amendments,

finding the same complied with the California Environmental Quality Act (CEQA).99

95 293 P3d 401 (Wash. App. Ct., 2013). 96 Id. at 404. See Spokane Municipal Code § 17G.060.170(c)(1), (2) and (5). 97 Id. at 407. However in SSHI LLC v. City of Olympia, 2013 WL 5436406 (Wash. App.), an extensive set of plan consistency findings in support of a denial of a residential development was upheld by both the trial and appellate courts, which awarded attorney fees to respondents. The same result obtained in Friends of North Kelsey v. City of Monroe, 174 Wash. App. 1077 (2013). 98 164 Cal. Rptr.3d 274 (2013). In Coalition for Adequate Review v. City and County of San Francisco, Case No. A131487, 2013 WL 1912521 (CA. Ct. App. May 9, 2013), the California First District Court of Appeals also denied relief under CEQA and substantive planning law regarding an amendment to the City’s General Plan to approve a project to rezone lands along the Market Street Corridor near Octavia Boulevard and to redevelop 22 vacant parcels created by the removal of the elevated Central Freeway. See also California Clean Energy Committee v. City of San Jose, 220 CalRptr3d 25 (Cal. App. Ct. 2013 ). 99 Pub. Resources Code, § 21000 et seq.

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Hawai’i recently dealt with plan amendments when it invalidated a local charter

amendment to amend its General Plan to limit the number of transient accommodation units.100

The court concluded that the Hawai’i Constitution provided that the state legislature had the

power to enact laws of statewide concern and that such laws included those dealing with the

adoption, amendment and administration of a local general plan.101

Washington has dealt with the effects of a subsequent plan invalidity determination on

permits issued based on that plan in Town of Woodway v. Snohomish County,102 finding the issue

controlled by a statute that allowed Growth Management Hearings Boards (which hear appeals

on plan and land use ordinance amendments, but not permits)103 to determine whether the

amendments were invalid, and finding invalidity only when the noncompliant amendment

substantially interfered with the goals of the state’s Growth Management Act.104

VII. Conclusion

The trend in caselaw for 2012-13 demonstrates increased respect for comprehensive

planning, less tolerance for the view that zoning regulations are isolated from their planning

roots, and more emphasis on the role of planning when plans are amended or interpreted.

100 Kauai Beach Villas-Phase II, LLC v. County of Kauai, (D. Ha. Civil No. 12-00483 LEK-RLP) (Order on Summary Judgment Motions, June 28, 2013). 101 Id. at 14-15. 102 291 P3d 278 (Wash. App., 2013). 103 RCW 36.70A.302. Washington law divides jurisdiction over land use matters depending on the subject, so that a quasi-judicial decision to change a plan designation and grant a zone change may not be challenged before a Growth Management Hearings Board. Spokane County LLC v. Eastern Washington Growth Management Hearings Board, 309 P3d 673 (Wash. Ct. App. 2013). However, if a quasi-judicial rezoning is not authorized by a comprehensive plan, it is deemed a development regulation and subject to review by the Growth Management Hearings Board. RCW 36.70B.020(4). 104 291 P3d at 285.