Tattoos Are Protected Speech, Too

“The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.”—Ninth Circuit
Goldfish sleeve tattoo. (Photo courtesy of Jeff Mansolf, Clockwork Tattoo and Art Gallery, Middletown)

The field of land-use planning and zoning is often a battleground for constitutional rights. Among the panoply of issues fought over are procedural due process, substantive due process, equal protection, inverse condemnation, privacy and search-and-seizure. Chief among them in terms of impact and interest are First Amendment issues.

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is an example. That statute has helped push debate over the free exercise and establishment clauses to the forefront of local controversies regarding the siting of religious institutions. At the other end of the moral spectrum, there continue to be disputes over where sex businesses should go, as in the recent Third Circuit decision in Sutton v. Chanceford Township upholding a narrowly tailored, content-neutral adult entertainment zoning ordinance that left open adequate alternative channels of communication.

And over on the sign front, we continue to have fallout from the U.S. Supreme Court’s decision in Reed v. Town of Gilbert, Arizona (2015) barring virtually all content-based sign regulation, leaving local governments and those who want to put up signs trying to figure out how to make it all work.

But perhaps the most interesting and entertaining First Amendment land-use issue we have is the protection of tattoo parlors as places of First Amendment free speech. Yes, injecting colored inks under the skin is protected speech.

These cases, of which there have been several in the last two decades, arise when the hopeful proprietor of a tattoo parlor discovers such businesses are totally prohibited in a municipality; or they are so restricted that they could never succeed in permitted locations—usually industrial areas—or the proprietor is denied a site plan or special permit for a location.

Our attention to the issue arose with the Ninth Circuit’s decision in Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010), a case of first impression, where the court noted:

“The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to. It is true that the nature of the surface to which a tattoo is applied and the procedure by which the tattoo is created implicate important health and safety concerns that may not be present in other visual arts, but this consideration is relevant to the governmental interest potentially justifying a restriction on protected speech, not to whether the speech is constitutionally protected. We have little difficulty recognizing that a tattoo is a form of pure expression entitled to full constitutional protection.”

The most recent case is Weaver v. City of Montebello, 370 F.Supp.3d 1130 (C.D. Cal. 2019). Katherine Weaver wanted to open a tattoo studio in Montebello, California, a small city eight miles East of downtown Los Angeles, with a population of 63,500 people. The Montebello zoning code regulates body art establishments, which it defines “as any premises or establishment, or facility incidental thereto, which performs body piercing, tattooing, branding, or application of permanent cosmetics” and prohibits them from being located within 1,000 feet of certain “sensitive uses” such as residences, schools, places of religious assembly, libraries, public parks, or any city-owned facility. This is the same sort of separation or distancing requirement we often see with sex businesses.

The net result is that the Montebello zoning code relegates tattoo shops to two small shopping centers that Katherine Weaver found to be unsatisfactory in terms of her business. In her pleadings requesting a temporary injunction, which the court ultimately granted, she noted that tattoo businesses do not depend on foot traffic and cannot afford the high rents of the typical shopping centers. In short, she had no place to go.

On top of that, she had to get a conditional use permit, the same as what is sometimes called a special use permit or special exception, and that permit is discretionary and had several subjective criteria.

The pièce de résistance of this regulatory scheme is that if you operate a tattoo parlor in Montebello in violation of the code, you can be charged with a misdemeanor, punishable by up to six months in jail and a $1,000 fine.

In granting the temporary injunction, the court first cited Anderson v. City of Hermosa Beach and two other cases that recognize operating a tattoo studio is protected First Amendment activity. Even though the business of tattooing may not be expressive conduct, the process is, and a tattoo shop owner could bring an as-applied or facial First Amendment challenge when the regulatory scheme prohibits or restricts that activity. The court noted the conditional use permit requirement likely vested local officials with unbridled discretion, and the conditional use permit procedures provided insufficient safeguards against prior restraint.

Finally, and this goes to the heart of nearly all land-use regulation, the court found the city of Montebello did not adequately show how this regulation advanced its police power interest in protecting the public’s health, safety and general welfare.

The lesson for local governments is they need to provide adequate channels of communication for this type of expression in the form of a reasonable number of available sites in locations where the businesses can succeed. Regulations should minimize discretion by decision-making authorities. Care must be taken to avoid chilling the speech with criminal sanctions. Remember, violations of federal constitutional rights may be brought in state or federal court under the Civil Rights Act of 1871, 42 USC Sec. §1983, and that law includes a companion provision that allows for the recovery of attorneys’ fees by successful plaintiffs.

Published on August 16, 2019 at 06:20 AM:


How Local Government Can Nip RLUIPA Claims in the Bud

Excerpt from RLUIPA Reader: Religious Land Uses, Zoning and the Courts

This chapter is written from the perspective of a local government lawyer (and occasional planner). It offers advice about how municipalities can protect themselves from RLUIPA claims and liability. The focus is on avoiding claims in the first instance and then, if litigation ensues, ways in which government can defend itself. RLUIPA presents a dual threat to a municipality: first, the potential for financial liability in the form of money damages and attorneys’ fees paid to a prevailing religious claimant or paid to settle a claim, and second, the prospect of litigation supplanting local decision making processes whereby a court substitutes its judgment for that of local officials.

Know Where You Are So You Know Where You’re Going

Assuming you started at the beginning of this book and have read straight through to this point, you should have a good sense of all the basic elements of a RLUIPA claim. If you would not be comfortable giving a three minute discourse on what could be considered “religious exercise” and another three-minute speech on the factors a court will weigh in determining whether government has imposed a “substantial burden,” you may wish to restudy those sections. They are essential to avoiding liability.

At the same time, it must be conceded that no one will feel truly comfortable answering these two critical issues because neither Congress nor the courts have defined the boundaries of either religious exercise or substantial burden. The law of RLUIPA is organic, building on incremental precedent from diverse factual and cultural settings and creating an often murky admixture of holdings, dictum, and musings. Lawyers are often asked: “What’s the chance we will win?” When it comes to RLUIPA claims, the response is almost certain to contain more “ifs” per line than most opinions.

The challenge is to put that admittedly limited knowledge to work to help you—as a governmental planner, lawyer, administrator or public official—to eliminate or minimize the potential for governmental liability. The stakes are high. A court could direct the government to approve an application contrary to the community’s plan and regulations; there is the potential for money damages (although this remains uncertain); and attorneys’ fees can be awarded even if the matter is resolved short of trial.

Practice Pointer: Don’t settle these cases in any way, including granting a partial approval under the threat of RLUIPA, without full mutual releases from all liability including attorneys’ fees.

The first reaction might be to call in the lawyers, but that could be counterproductive. As the psychologist Abraham Maslow (1908–1970) said: “When the only tool you have is a hammer, then every problem begins to look like a nail.” Get a few lawyers in a room and throw them a hunk of raw RLUIPA, and they’ll gnaw at it like, well, what they are, lawyers: burden of proof, elements of the claim, discovery, depositions, venue, subpoenas, and suddenly your head is spinning.

Listen to your mothers who, like mine, said: “An ounce of prevention is worth a pound of cure,” and “A stitch in time saves nine.” Back up a few steps in the process and start working on your RLUIPA defense before any religious organization even thinks about wielding that sword. It’s almost always too late when the lawyers come aboard for damage control and extrication expeditions.

Plan, and Then Plan Some More

Another aphorism: the best defense is a good offense. Plan for religious uses. You plan for schools and gas stations; plan for religious uses. Conduct surveys. Know what their needs are. Your community might grow 10 percent in population over the next ten years. Presently, the religious assembly needs are being met with one thousand seats. In ten years you may need at least one hundred more seats, perhaps in different locations. Church-run schools have shown dramatic increases in enrollments. Will that trend continue? What do religious leaders foresee as their needs? Will local campuses suffice, or do they aspire to larger facilities? Are there forms of communication, such as Web-based services, which could reduce the need for public assembly space or change the peak times of use? Are they planning multiple services, or services on more days, in order to handle any increases in membership and attendance? Are they branching out into other areas, such as providing primary and secondary education, senior day care, after-school recreational programs, meals on wheels, affordable housing, and alcohol and drug rehabilitation? The list of potentially relevant planning considerations goes on and on. Don’t wait for these activities to land within the reach of RLUIPA. Treat them as a planning issue. Practice Pointer: Generally, treat religious land use activities as you would similar secular activities, such as other places of public assembly. Never restrict religious activities more than you would restrict nonreligious activities of the same type. Of course it would be unwise to give preference to religious uses because of the potential for being skewered by that other provision in the First Amendment—the establishment clause— which prohibits government from promoting religion or favoring one religion over another. But you must account for them in your planning as you would any secular use with similar characteristics, such as schools, places of public assembly, and offices.

The other side of planning is the allocation of present and future use demands to the exclusion of other uses. Is there a need to protect agricultural production to lower the community’s carbon footprint and preserve capacity for future generations? If so, that land cannot become a parking lot, whether for a church or another non-agricultural use. Is there a need for a pedestrian friendly community, especially for the retiring boomers, and the increased, mutually supportive human and economic activity that comes from more feet on the street? If so, is there a plan for concentrating places of public assembly—secular as well as religious—in central areas?

Practice Pointer: Keep chanting the mantra: “I will plan for all future land uses comprehensively.”

No court has yet held that aesthetics alone, even historic preservation, is a compelling government interest sufficient to fend off a RLUIPA claim once a substantial burden has been shown. But compelling governmental objectives may be found in measures to protect the public’s health and safety. There is a chance that a court might find, under the right circumstances, a compelling interest in protecting a community’s sole source aquifer from pollution by a megachurch parking lot or preventing traffic hazards.2

Put the heavyweight governmental objectives out front.3 Identify where risks to the public’s health and safety might exist. Don’t bother with lightweight objectives, important as they may be to you as planner, like “scenic vistas”—they may just end up diluting the objectives that might be compelling. This is what happened in the famous Lucas case in 1992.4 The state of South Carolina restricted building on beach-fronts that were especially likely to experience erosion because people could be killed and property destroyed, but the state also mentioned it was good for tourism to save these areas. The courts took note of the latter “lightweight” objective and, to some extent, lost sight of the life safety issue.

Audit Your Own Regulations as if You Were Suing Yourself

Step back from your own regulations and look at them as an outsider. If you are psychologically or politically unable to do that, then hire someone to do it for you. The objective is to drill deep into your present regulatory structure to find any underlying weaknesses that could become the basis for liability.

Ask yourself this critical question: Is there anything in your code that allows a school, day care center, or place of public assembly where you would not allow a religious land use or analogous use operated by a religious institution? If the answer is yes, you should probably eliminate the disparity by expanding the rights of religious institutions to equal those of nonsectarian organizations.

Based on your planning studies, do you have sufficient land in your community for the expansion of clearly religious activities such as worship and religious education, as well as for other activities commonly conducted by religious organizations that arguably might be claimed as part of a religious use (such as athletic facilities for church-sponsored leagues and functions on church campuses)? Remember that the market is imperfect, and many potentially developable sites may not be for sale. You might want to err on the side of zoning to provide an excess of potential sites for such uses, so that you will be better able to defend against the argument that your community has taken advantage of a constrained market to exclude new religious activities and related facilities.

Are you using the special use permit or conditional use—both of them in most jurisdictions are administrative and discretionary— for religious uses? If the answer is yes, allegations could be made that the process itself imposes an undue and substantial burden on the religious applicant, or that the discretion has been exercised in a way that disfavors religion or discriminates among denominations. It is generally better, from a RLUIPA strategy standpoint, to treat religious uses through neutral and generally applicable zoning laws than to do so through site-specific discretionary approvals.

RLUIPA is a statute of limited jurisdiction, and when a government undertakes an “individualized assessment” of a proposed religious use of a property under its land use regulations, it pulls one of the triggers for the substantial burden inquiry. Arguably, a special use permit or similar type of administrative review would be such an “individualized assessment.” But a law of general applicability, for example, that sets performance standards for all assembly uses would not be. In many jurisdictions it may be possible to convert the conditional use or special permit process into nondiscretionary performance standards.5 The as-of-right use with strict standards, including traffic impacts and density limits by floor area ratio and lot coverage, can provide just about all you need without having to make a site-specific decision as to a particular use.

Practice Pointer: Classify religious uses either as permitted as of right or not permitted at all in particular districts, if you can do so without compromising your comprehensive plan for growth and development.

If you decide to rezone properties to eliminate or restrict religious uses from certain areas, be sensitive to the reality that if a religious organization owns the site it might have vested rights in the former zoning, and if you rezone property while a religious organization is considering purchasing it (or shortly after it has purchased it), the rezoning may appear to be reactionary or retaliatory.6 It might be more prudent to err on the side of expanding vested rights, rather than eliminating or limiting those rights.

Practice Pointer: A last resort, and one that should be avoided, is a moratorium on religious uses. Moratoria have not fared well except when there is an overarching public health and safety need, when it is applicable to all or most development, and when it is intended to be a very short “planning pause” such as six months.

Prepare the Front Desk

Planners and land use administrators often cause more damage than they realize by innocently answering what seems to be a straightforward question and, in doing so, inadvertently create unwarranted expectations. Many times such questions are not what they seem. No one at the front desk can ever really know who is speaking for whom, and what may be intended. For example, a religious group may contract secretly to purchase property for a new facility. The group may have its representative inquire of the planning and building department what is and is not permitted on the property without revealing its plans. A problem may be ahead for the municipality if the answer is incorrect, or even if it is accurate but suggests, for example, that among the range of apparently allowed uses, there is great local enthusiasm for taxpaying business uses and dislike of tax exempt institutions.

If the inquiry is other than a run-of-the-mill question concerning an as-of-right use such as a single-family home, it may be best simply to offer a copy of the code and suggest that the individual consult with others. It might even be useful to give every person who makes any type of inquiry a one-page statement of the resources that are available through the municipal offices. In the process of providing that document, the public’s accessibility to the information is increased, and there is an opportunity to give an express warning that most land use approvals involve federal, state, and local complexities and interpretations requiring professional assistance. It can also be mentioned that anyone undertaking a land development project should seek the advice of design and development professionals and legal counsel as needed.

The other side of this coin is that it is important for public servants to serve the public and it is also important that a municipality demonstrate its willingness to assist religious organizations in meeting the terms of the regulations and moving their projects through the approval process in an efficient and orderly manner. The best way to balance the need to protect casual conversations from leading to untenable expectations while still providing a high level of service is to bring the potential applicants in front of local boards and commissions as soon as possible. It is much easier to manage communications when senior staff and experienced chairpersons are present. Consider a pre-application process with a public meeting, where potential applicants can explain to the public officials their anticipated requests. The objective is not to preempt, but to have some broader input and preserve record evidence that the potential applicant was helped in every way possible and was given the best advice by the appropriate authorities even before coming in with the application.

The pre-application meeting may be counterintuitive. Can it really help to start discussing a development project before it comes in as a formal application? In many, if not most, cases the answer is yes. Applicants often become economically and psychologically committed to detailed plans when they spend substantial money on them before getting any real feedback from decision makers. The pre-application meeting in the early stage provides a forum for give-and-take that can avert serious mistakes. Imagine a commissioner observing at such a meeting: “I see by your sketch plan that you have your major entrance on Elm Street. There is a draft amendment to the town’s Master Plan addressing the serious traffic congestion we have on that street from the recent development of the Mega Mart. If you reoriented the site plan to use Oak Street exclusively, I think it will avoid some serious problems for you.” Helpful observations such as this might circumvent a denial or conditional approval requiring a costly and extensive redesign.

Win by Avoiding the Simple Mistakes

I confess to being a poor tennis player. When forced to play, I have a simple strategy—just get the ball back over the net. Nothing fancy, no slamming or spinning, no driving the opponent to the very back corner . . . just get it over the net.

Most of the difficulty I encounter in defending RLUIPA claims arises out of a careless, thoughtless, uninformed, casual, or glib passing remark, or even a nervous attempt at humor in a highly charged situation. No, these “one off” remarks usually don’t create liability, but neutralizing them from a hearing or deposition transcript can be Sisyphean.

Some would call what needs to be done “coaching,” a pejorative term. This is better described as sensitizing and helping people understand the limits of their authority under RLUIPA.

In one case in which the municipality was ultimately held liable under RLUIPA, the decision makers rejected the reasonable advice of their planners—twice.7 It is not that elected officials have to do what their planners tell them, but when the expert advice is sought—twice—and rejected with no apparent overriding public policy considerations, it is reasonable and appropriate for a court to look at that process with more scrutiny.

Practice Pointer: You get what you ask for. When seeking professional advice, be careful in telling your consultant what you want reviewed. If it is only about traffic, say so.

In a recent instance regarding a synagogue proposal, which so far has not ripened into a RLUIPA suit, a member of a local historic preservation board commented that she didn’t think it was a problem having the synagogue in the historic district but that the proposed Star of David on the top might not be appropriate. It is hard to imagine how the principal symbol of the Jewish faith could be excluded entirely. This type of comment at the very first pre-application meeting demonstrated a lack of knowledge about the law and a high degree of insensitivity about the applicant’s religion. It was widely reported, and set the wrong tone for the commencement of the proceeding. Had this commission been briefed in advance on the essentials of RLUIPA and the importance of maintaining an appropriate public record, this rocky start could have been avoided.

Practice Pointer: If a public official makes a mistake, for example by saying something plainly wrong during a public proceeding or in a written statement, the best thing to do in most cases is to admit wrongdoing and apologize as part of an attempt to cleanse the record.

Practice Makes Perfect

A board or commission with land use decision making authority should be put through its paces to educate the members about compliance. Prepare a hypothetical application and conduct a mock hearing. Stir the pot. Egg them on; taunt them a little, from all sides. Don’t forget a gaggle of angry neighbors. Nothing pushes the buttons of public officials more than getting caught in crossfire.

Test their anger management. See if they know how far RLUIPA reaches. Ask, for example, for a bowling alley for a religious group to provide recreational opportunities for its members. Take that up a notch by saying that it will be a refuge for troubled teenagers. See if the officials ask for information on the religious group’s mission. During the later critique, ellicit a discussion about whether a bowling alley is an integral part of the religious expression, and then challenge the officials to think about whether they were tougher on the religious group than they might have been on a for-profit bowling alley or a nonreligious charitable group that used bowling as therapy. The military uses extensive post-exercise briefings to provide constructive criticism. It is much better to ferret out problems when the stakes are no more than a little rush of embarrassment.

Another approach, one that we use in procedural due process training, is to completely script a religious use hearing, and have public officials, staff, and other volunteers read the parts. Build as many problems and errors into the script as you can. The obvious ones will bring laughter. The subtle ones can stimulate discussion during the post-exercise critique.

Make the Record

Nothing is more important in successfully defending against a RLUIPA claim than a complete, comprehensive, and compelling record of rational decision making based on the pursuit of legitimate governmental objectives. Once the RLUIPA claimant gets past the “substantial burden” hurdle, the government must assert and prove “compelling” interests for its action. One example of how not to do it is provided by the case of Guru Nanak Sikh Society of Yuba City v. County of Sutter, a Ninth Circuit decision from 2006.8 In the end, the Ninth Circuit held that the county had imposed a substantial burden on Guru Nanak because the stated reasons and history behind the denial at issue, and the fact that there had been a previous denial of Guru Nanak’s application to build a temple on a parcel of land zoned “residential,” “lessened to a significantly great extent the possibility of Guru Nanak constructing a temple in the future.”9 Moreover, the court said the county did not assert, nor prove, that there was any compelling interest for its denial of the proposal for the temple. The real story lies in the details of the process, and the failure to create a supportive record.

Guru Nanak first applied for a conditional use permit for a temple on 1.89 acres. The county planning division recommended approval of the application subject to conditions consistent with the general plan, but the planning commission voted unanimously to deny the permit. “The denial was based on fears voiced by residents that the resulting noise and traffic would interfere with the existing neighborhood.” In response to the denial, and mindful of the concerns expressed about the perceived conflicts between the temple use and a residential neighborhood, Guru Nanak went looking for another site. It found 28.79 acres in an agricultural district, and proposed converting an existing 2,300- square-foot single-family residence and increasing the size of the building by about five hundred square feet to a temple of about 2,850 square feet. This building was intended to serve no more than seventy-five members and was to be used as a place of religious celebration, an assembly hall, and for weddings. It applied for a conditional use permit for this purpose. Churches are allowed nowhere in the county as of right. Nonetheless, various boards and agencies ultimately approved the proposal subject to numerous conditions, and the planning division issued a “mitigated negative declaration,” which, freely translated, means that the proposed temple would not create a significant environmental impact because the mitigation measures would reduce any impacts to insignificant levels.

After a public hearing, the planning commission approved the application by a vote of four to three. The four-member board of supervisors held a hearing on appeals brought by several neighbors, reversed the planning commission’s approval, and denied Guru Nanak’s application. The supervisors gave various reasons for the reversal, including that the property was agricultural and should remain so, that it was “too far away from the city” and would not promote orderly growth, that the use would be detrimental to surrounding agricultural uses, and that Guru Nanak should locate a church closer to other existing churches. Two of the commissioners characterized the proposal as “leapfrog development” given its location away from existing infrastructure.

In a lengthy decision, the Ninth Circuit analyzed the decision making process in detail and found it lacking. The court affirmed the trial court’s order granting summary judgment for Guru Nanak, and enjoined the county to immediately approve the conditional use permit application. Because the interpretation and application of the county’s regulations in denying the application a second time was found to have imposed a substantial burden on Guru Nanak, the county was obligated to prove, which it did not, that there were “narrowly tailored, compelling reasons” to deny the application.

Practice Pointer: First, eliminate any legitimate basis for claiming that a site-specific review and denial will create a substantial burden by clearly identifying other alternatives including, as appropriate, scaled-back or redesigned development on the same site, or development on other more suitable sites in specified areas. Second, if there is concern the court will find the denial or conditional approval to be a substantial burden, then make sure the record is replete with evidence detailing which safety or other compelling governmental interests were furthered by the denial or conditional approval, and why that outcome was the least restrictive means of addressing those interests.

Don’t imagine that government will lose simply because it denied a conditional use permit. The Supreme Court of Oregon, in Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of West Linn,11 held that the denial of a conditional use permit to build a new meeting house did not constitute a “substantial burden” even though the denial had “several adverse consequences for the church’s effort to build a meeting house.”12 The city had directed the church to submit a new permit application to use a greater portion of the available lot, to provide additional buffering, and to submit required noise studies. This process imposed additional 125 expenses on the church but was not a “substantial burden” because it appeared the conditions could be met and “nothing in the record indicated that the city would not approve a revised application.”

If Guru Nanak is the violet of the visible spectrum, the 2008 decision of the Connecticut Supreme Court in Cambodian Buddhist Society of Connecticut, Inc. v. Planning and Zoning Commission of the Town of Newtown is at the far end, hundreds of nanometers away.

In 1999 the society purchased a ten-acre tract with two acres of wetlands and a five-acre pond, and a home in which four Buddhist monks took up residence. The site was in a farming and residential zone where religious institutions are allowed by special exception. The local land use agency denied an application for approval of a 7,618-square-foot building (1,618-square-foot meditation temple and 6,000-square-foot meeting hall) with 148 parking spaces to accommodate 450 society members. Its reasons for denial included that it would be inconsistent with a “quiet single-family residential neighborhood with a rural setting,” health treatment uses rumored to be conducted on site were not permitted, the existing volume of traffic would double or triple, the temple design was not in harmony with the neighborhood, and the water and septic system did not meet regulations.

The Connecticut Supreme Court held that RLUIPA didn’t apply. The court reached that determination by first holding that “the substantial burden provision of RLUIPA does not apply to neutral and generally applicable land use regulations that are intended to protect the public health and safety, such as those at issue in the present case.”

After a long march through First Amendment jurisprudence and its relationship to interpreting “substantial burden” in RLUIPA, the court settled on case law determinations as to “when the substantial burden provision applies to government conduct in the first instance.” That, in turn, forced the court to analyze what an “individualized assessment” might be because RLUIPA, by its express terms, limits applicability of the substantial burden provision to those instances where there are individualized assessments.

In a precedent-setting act of prestidigitation that won the day for Newtown, the court concluded that while Newtown’s regulations gave the agency some discretion, they did not permit the agency to apply them to religious facilities differently than they were applied to other special exception uses such as clubs, hospitals, landfills, and private schools. Therefore, the special exception regulations did not allow for an “individualized assessment” and, consequentially the substantial burden analysis was never reached. Importantly, the land use agency had the discretion in the regulations to apply them in a discriminatory manner, but it did not. It was not the regulations per se or the procedural nature of the discretionary special exception authority, but the decision made by the agency (“motivated not by religious bigotry but by neutral considerations”) that defined whether it was an individualized assessment. Court watchers and RLUIPA aficionados will be standing by to see if other courts follow this line of reasoning. Until then, local governments will be citing this decision every chance they get.

Preserve the Evidence

The hot button issues in complex RLUIPA civil litigation cases are spoliation and electronic discovery (e-discovery). “Spoliation” looks like a typographic error, doesn’t it? Spoliation is derived from an Anglo-French word of the fifteenth century meaning to plunder. In the wild and wonderful world of discovery it means the willful destruction of evidence that otherwise should be preserved and potentially available to a litigation opponent. The short version of the big problem is that if any documentation (letter, report, meeting note, phone record, and even e-mail and other electronic documentation) is prepared or received in the normal course of business, or is potential evidence relative to an issue that it is reasonably probable would be subject to litigation, then whoever has that evidence should not destroy it.

Practice Pointer: If you do not already have a records-retention policy consistent with federal and state law that permits you to destroy documents and requires you to preserve others for express periods of time, you should develop one to make sure that everyone knows the rules and follows them.

The newly amended Federal Rules of Civil Procedure expressly refer to the discovery of “electronically stored information,” commonly referred to as ESI in “electronic discovery.” Electronically stored information includes “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, . . .” and parties in federal litigation may “inspect, copy, test, or sample any designated documents or electronically stored information . . . .” The sheer volume of electronically stored information, not to mention the sometimes damaging content found within, has created an almost incalculable burden on litigants. The cost of organizing and producing electronically stored information in a single case can be several million dollars. A formal records retention policy and organized electronic document storage and retrieval system can protect government from unnecessary liability.

Practice Pointer: Start with two simple steps. First, put all of your local government computer systems on a single server with adequate backup so that records can be more easily retrieved. Second, establish governmental e-mail accounts for all elected and appointed officials and staff, and prohibit anyone from using their personal e-mail accounts for any government-related communications. This latter step will avoid the need to potentially produce personal computers and data files in the discovery process.

In the End . . .

In the end, what you do at the beginning can make the difference between success and failure. Good planning (taking into account forecasting space needs, religion-neutral regulations, and adequately trained staff and decision makers), decisions based on substantial evidence, and proper records management can eliminate a large part of the potential liability for local governments. Our doctors tell us to eat right and exercise, but we still have nearly 25,000 cardiologists in the country.16 It is similarly unlikely that the RLUIPA defense bar will soon disappear.

Notes 1. I draw on many sources in this chapter and cite them specifically where it is appropriate. Otherwise, the text reflects the case law and literature generally. I want to expressly acknowledge that I draw extensively on two useful sources that apparently are not generally in the public domain, but which I can make available to the reader if they send me an electronic mail message to The first of these articles is by Jeffrey T. Melching of Rutan & Tucker LLP and was presented to the City Attorneys Association of Los Angeles County at its spring 2003 retreat. That paper is entitled, “The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): What’s a City to Do When a Church Comes to Town?” The second is a recent short presentation by a lawyer who has labored in the RLUIPA trenches, most recently in an important case against a municipality, Westchester Day Sch. v. Vill. of the Mamaroneck, 504 F.3d 338 (2d Cir. 2007). That paper is by Kevin J. Plunkett of DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, and was presented to the New York State Bar Association Municipal Law Section’s annual meeting on October 20, 2007. It is entitled, “Religious Land Use and Institutionalized Persons Act (RLUIPA): Dos and Don’ts for Municipal Attorneys When Advising Municipal Board Members, Staff and Consultants.” 2. See Mont. Envtl. Info. Ctr. v. MDEC, 296 Mont. 207 (1999). 3. See Westchester Day Sch. v. Vill. of the Mamaroneck, 280 F. Supp. 2d 242, 230 (S.D.N.Y. 2003) (“traffic concerns have never been deemed compelling government interests”); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005); Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, 2008 WL 314717 (Md. App. 2008). 4. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). 5. For a case on point discussing the ins and outs of conditional use permits as compared with the alternative of the legislative planned unit development in a safe haven of the as-of-right approach, see Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005). ABA-LUCERO-09-0202-007.indd 128 BA-LUCERO-09-0202-007.indd 128 4/10/09 1:20:07 AM /10/09 1:20:07 AM How Local Government Can Nip RLUIPA Claims in the Bud 129 6. See Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846 (7th Cir. 2007); see also Cypress Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002). 7. Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006). 8. Id. 9. Id. at 981. 10. Id. at 982. 11. 338 Or. 453, 111 P.3d 1123 (2005). 12. 338 Or. at 467, 111 P.3d at 1130. “For the purposes of this opinion, we assume without deciding that the city’s denial of the CUP constituted an individualized assessment as that term is used in 42 USC § 2000cc(a)(2)(C).” 338 Or. at 463 n.5, 111 P.3d at 1128 n.5. 13. 285 Conn. 381 (2008). 14. Id. at 400. 15. FED. R. CIV. P. 34(a). 16. W. Bruce Frye, Cardiology Workforce: A Shortage, Not a Surplus, HEALTH AFFAIRS, Feb. 4, 2004, available at;, Cardiology Career and Resource Center, http://www.locumtenens. com/cardiology-careers/main.aspx (last visited Mar. 17, 2009).

Reasserting the Right to Front-Yard Gardening

Hermine Ricketts and her husband, Tom Carroll, decided the best place ever for their vegetable garden was right there conveniently in their front yard. Local officials had other ideas.
Homeowners Tom Carroll and Hermine Ricketts in their garden.
Wilfredo Lee/AP

“The farmer in the dell, the farmer in the dell, hi-ho the derry-o, the farmer and the dell…” so goes one of the most popular and oldest nursery rhymes, originating from Germany’s “Es fuhr ein Bau’r ins Holz” and brought to America by immigrants, and then spread around the world. In the United Kingdom it has a variant, “The nurse takes a dog.”

Growing your vegetables in “a small wooded valley” is unquestionably appropriate, but what about if you decide your garden should be in the front yard of your home in a residential district?

This issue has come up time and time again over the years across the country, most recently in Florida, when Hermine Ricketts and her husband, Tom Carroll, decided the best place ever for their vegetable garden was right there conveniently in their front yard in Miami Shores Village, a municipality of just 3.75 square miles and 10,493 people. Their garden in the sunniest area of their lot included kale, scallions, beets, eggplant, cherry tomatoes, yellow Swiss chard, Chinese cabbage, okra, bell peppers, jalapeños, and squash. They had growing outside their front door a veritable feast of healthy food. And it was so good for Ricketts, who in recent years has come to use a wheelchair and requires oxygen.

Local officials, however, wanted a tidier appearance and sought to end Rickett’s 17-year gardening experience in the interest of “protecting the distinctive character of Miami Shores Village.” The village amended its zoning code in 2013 to prohibit such gardens with this simple change: “Vegetable gardens are permitted in rear yards only.” At the same time the code continued to allow garden gnomes, pink flamingos, trolls, boats and jet skis in front yards. Anyone nabbed for the zoning crime of growing vegetables in their front yard was subject to a fine of $50 per day. Ricketts and Carroll received a notice of violation and, fearing the fines, destroyed their garden; and along with it part of their food supply and the great pleasure they had enjoyed in tending their small plot.

They appealed, challenging the code as-applied, lost in their local administrative appeal and lost at trial. They then sought the help of the Institute for Justice, which describes itself as “[t]he nation’s only libertarian, civil liberties, public interest law firm.” Given the res judicata waiver bar to refiling their prior failed as-applied claim, their new action challenged the code on its face. A facial challenge is hard to win because, of course, it requires that the law be unconstitutional anywhere and everywhere it might be applied. As the Florida appellate court described it, they would have to succeed in “attacking the statute on the grounds that it cannot be validly enforced under any set of circumstances.” They lost at trial and lost when the appellate court upheld the trial court’s rejection of their claims.

The Third District Court of Appeal’s decision is well-reasoned, though the court clearly doesn’t like where it had to go. The court was stuck because it could only apply the minimal rational relationship test, rather than the strict scrutiny review that would have come with a suspect classification or fundamental right—growing vegetables are neither. One could argue, and they did unsuccessfully, that with those gnomes, jet skis, and other paraphernalia allowed to litter front yards in Miami Shores Village, a few cherry tomatoes were not so bad, and the prohibition on growing vegetables was overboard and vague.

What to do? Good advice for anyone who doesn’t like local zoning laws is the somewhat glib truism “If you don’t like the law, change it.” In this case, Ricketts, with the Institute of Justice’s help, went to the Florida Legislature and convinced it to change the law: “Except as otherwise provided by law, a county, municipality, or other political subdivision of this state may not regulate vegetable gardens on residential properties. Any such local ordinance or regulation regulating vegetable gardens on residential properties is void and unenforceable.” Good for you, Florida.

Reflecting on the change in the state law, Ricketts said: “After almost six years of fighting, I am relieved that my right to grow my own garden, on my own property, is finally going to be protected. Once it was taken from me, my health suffered severely. I am looking forward to the time that I can once again grow my own food, for my own consumption, without having to worry that an overzealous code enforcement officer will try to fine me into destitution.”

Ricketts is especially pleased to now be able to grow her garden without interference by the government: “You’re down on the earth, touching the soil, kneeling on the ground. … It’s a healing process,” she said. “I’m hoping to get back in the garden and spend time outside doing things I love. The healing things in the sunshine.”

“Gardening is wonderful,” Ricketts said. “I feel victory. … I have no words.”

Published on August 05, 2019 at 01:42 PM:

Dealing With the Dockless Scooter

A Lime scooter near the State Capitol building in Hartford. Photo by Michael Marciano.

They are a big business, a big problem, and they both aid and impede transportation. The challenge is to put them in their place, and there is a solution.

You see them most everywhere now, the so-called dockless scooters, electric scooters and other two-wheelers available for rent, picked up off the street, ridden around town and then, in most cases, simply abandoned on the sidewalk or alongside the street. They are a big business, a big problem, and they both aid and impede transportation. The challenge is to put them in their place, and there is a solution.

To be more technical, here is the definition of a dockless scooter from an Atlanta law regulating them:

Shareable Dockless Mobility Device: an electric/motorized or human-powered device that permits an individual to move or be moved freely, is available for rent to the general public for short-term one-way trips without the installation of any infrastructure in the public right-of-way and shall include but not be limited to a bicycle/e-bicycle, scooter/e-scooter and shall exclude any motor vehicle required to be registered with the state, in accordance with state law.”

It’s a fast-growing business. Even Uber is into it, with a startup last year, Uber Bike, in San Francisco. Now Lyft has just rolled into town to join the fun with hybrid e-bikes, even as it is in a lawsuit with the transportation authority over what Lyft claims was an exclusive deal.

The always-innovative Uber is offering a new deal in San Francisco and Chicago. For $25 a month you can have discounted Uber rides, free Uber Eats food delivery, and free JUMP bike and scooter rides. Uber bought JUMP Bikes in 2018 for $200 million. Bird, the largest of the e-scooter ride companies, has grown to a value of $1 billion, the fastest any startup has reached that mark. Lime also achieved that value quickly.

There are problems of all kinds everywhere with the dockless scooters. When Bird, Lime and Spin launched in San Francesco in March 2018, without benefit of permits, complaints of improper parking jumped from 624 in the prior six months to almost 2,000 in the six weeks after the new e-scooters appeared. It is likely to get worse for the city because even though the city has kept a tight rein on the e-scooter business, it is expected that the number of e-scooters there will soon double to 2,500 under an expansion program of the San Francisco Municipal Transportation Agency if operators sign up more low-income people for discounted rides.

This invasion of scooters has brought on “scooter rage” in some quarters, with people burying them in the sand so they can’t be found and rented, and throwing them into rivers, all of this and more, including examples of the common misuse of scooters, documented in 386 Instagram posts at “Bird Grave Yard.”

While for the average person, navigating around and through the piles of cast aside dockless scooters is largely an inconvenience and an opportunity to utter a few expletives, for those who use assisting devices in walking and those who use wheelchairs, they have become a complete barrier to mobility.

In January, Disability Rights of California brought a class action against San Diego, Bird and Lime under the Americans with Disabilities Act and similar provisions of California law. The complaint begins with:

“This action challenges the failure of the City of San Diego and private companies to maintain the accessibility of the City’s public sidewalks, curb ramps, crosswalks and transit stops for people with disabilities, in the face of an onslaught of unregulated dockless scooters. Private scooter companies have been allowed to appropriate the public commons for their own profit, regardless of the impact on the City’s residents. Persons with mobility impairments, including people who use wheelchairs or walkers, and people with significant visual impairments are thereby being denied their right to travel freely and safely on our public walkways.”

In late 2018, a group of pedestrians brought a class action against Bird and Lime in Los Angeles, claiming strict products liability, negligence, and public nuisance, among others things, and alleging numerous injuries from tripping over e-scooters carelessly set adrift and the loss of accessibility for those with physical disabilities.

The Atlanta ordinance has extensive restrictions on where dockless scooters can be parked, addressing the need to protect loading zones, vehicle parking, pedestrian and wheelchair access, bus stops, bikeshare stations, signage and traffic control devices, and “emergency service infrastructure,” such as fire hydrants and defibrillators. What do you think the chances are that dockless scooter riders carefully read, and scrupulously follow the mandates of, the 19-page, single-spaced ordinance?

The ordinance includes certain enforcement provisions, such as the right to reduce the number of e-scooters allowed under an operator’s permit and to impound and even dispose of the e-scooters. However, no enforcement provisions are going to solve the fundamental problem that there is usually no place to put these things when the riders are done testing Darwin’s theory on the street.

In the world of the startup begets the startup, along comes GetCharged Inc. with a great idea on how to solve the problem. It recently initiated a program in Atlanta working with owners of parking garages and other property owners to provide charging stations and a place to dock the dockless, getting them out of the way, quelling the mayhem, and bringing the providers of the scooters into compliance with the law. Their docks store, charge, and service up to 10 otherwise orphaned scooters in a single car parking space. The company claims it has contracts already for 2,500 locations.

Sal Cassano, safety adviser for GetCharged and former FDNY commissioner, says that GetCharged “has identified a key solution to help city planners keep our streets organized and safe. The docking stations will also help to prevent fires that have become more common in homes and warehouses where lithium ion e-scooter and e-bike batteries are often charged in unsafe conditions.”

Looks like this is an idea whose time has come.

Published on July 31, 2019 at 01:35 PM:

Fundamental Fairness Involves More Than Due Process

Here in Connecticut, the fundamental fairness doctrine not only overlaps, but may also transcend, due process.

At the Connecticut Bar Association’s 2019 Legal Conference, the environmental law section presented “Ethical Considerations in Environmental Law,” moderated by Nancy K. Mendel of Winnick Ruben Hoffnung Peabody & Mendel, with panelists Christopher P. McCormack of Pullman & Comley and me. I had occasion to briefly discuss the concept of fundamental fairness.

My career-long friend and fellow land-use lawyer David Royston of Dzialo, Pickett & Allen commented to me afterwards that fundamental fairness has a unique place in Connecticut’s administrative law. I had sometimes thought this was so and did a word search of the entire 91 chapters of the land use law treatise I co-edit, Rathkopf’s “The Law of Zoning and Planning.” The term appears in only six chapters and then only as a test for takings and procedural due process.

Here in Connecticut, the fundamental fairness doctrine not only overlaps, but may also transcend, due process.

I had been speaking about Barry v. Historic District Commission of the Borough of Litchfield, 289 Conn. 942 (2008), a somewhat bizarre case, the type you sometimes get in the wacky world of local land-use law. A historic district commissioner with very strong negative feelings about an application recused himself from hearing the application, got up from his seat, and went to the other side of the table to testify as an “expert” on two nights of the hearing, filing an eight-page singled-spaced report and convincing his own commission to follow his recommendations, to the point of adopting portions of his testimony. All of this was over the protestations of the applicant’s attorney, who described it as “fundamentally unfair.”

The trial court held that the recused commissioner’s actions rendered the proceeding fundamentally unfair. The appellate court agreed.

The appellate court cited its decision in Megin v. Zoning Board of Appeals, noting that local administrative proceedings “are informal and are conducted without strict rules of evidence” but may not “violate the fundamental rules of natural justice. … the hearing must be fundamentally fair.” Megin v. Zoning Board of Appeals, 106 Conn.App. 602 (2008). Importantly, the Megin court observed as to fundamental fairness: “That common-law right is not coextensive with constitutional due process.” In Passalugo v. Guida-Seibert Dairy Co., 149 Conn. App. 478, 480 n. 6 (2014), the court said “there exists an inherent overlap between the right to due process and the right to fundamental fairness in administrative proceedings.”

In our hallway chat, Royston noted Grimes v. Conservation Commission, 243 Conn. 266 (1997), as a leading case, well known to those in land-use practice. The Megin court cited Grimes with approval:

“The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice that is at issue in this case. … In a number of administrative law cases decided after [Board of Regents v. Roth, 408 U.S. 564 (1972)], we have characterized these procedural protections as ‘due process’ rights. … Although the ‘due process’ characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings. Although the facts of the present case do not require us to explore its boundaries, this common-law right is not coextensive with constitutional due process. … Therefore, to eliminate any further confusion, we will discontinue the use of the term ‘due process’ when describing the right to fundamental fairness in administrative proceedings.” (Citations omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273 n. 11 (1997)

That, indeed, is the takeaway. In Connecticut, “fundamental fairness” is a common-law right, not constitutional, and does not require a property interest. As I said to those attending our session at the Bar conference, if you cannot succeed on the constitutional due process claim, you may have available the common-law protection of fundamental fairness. Maybe that’s the new tourism catch phrase Governor Lamont is looking for: “Famous for Fundamental Fairness.”

The Grimes court eschews delimiting the boundaries of “fundamental fairness,” but the court’s statement in Passalugo v. Guida-Seibert Dairy Co. that it “overlaps” could be construed to mean it extends beyond constitutional due process.

Who said land-use law wasn’t interesting?

Published on July 18, 2019 at 02:17 PM:

Texas Cattle Fever, ticks, and the police power of the State

A bit far afield from my usual (pun) but an interesting topic…

The “tick eradication quarantine line” is a good example of the exercise of the so-called “police power” – the fundamental power of the states to protect and promote the public’s health, safety, and general welfare.

To eradicate the ticks the government, under the police power, can infringe on the private property rights in the cattle and access to grazing areas without compensating the ranchers, as otherwise mandated by the Fifth Amendment of the U.S Constitution (“nor shall private property be taken for public use, without just compensation”).

The most dramatic example of the use of the police power was back in 1928 when the state of Virginia pursuant to its Cedar Rust Act ordered ornamental red cedar trees on private property cut down to prevent the spread of cedar rust disease to area apple orchards. The U.S. Supreme Court held in Miller v. Schoene that there was a taking but it was not compensable because of the greater public interest.

The YIMBY Movement Takes Hold

Getting affordable housing built is a complex business, and the greatest success often comes in orchestrating federal, state and local efforts and in managing multiple techniques at once.

NIMBY, or “Not In My Back Yard,” made its way into our lexicon in 1980, and is defined by Merriam-Webster as “opposition to the locating of something considered undesirable (such as a prison or incinerator) in one’s neighborhood.” More recently, we have heard BANANA, or “Build Absolutely Nothing Anywhere Near Anyone.” For those who embrace NIMBY and BANANA, there is another catchy moniker, CAVE, or “Citizens Against Virtually Everything.”

An emerging countermovement is YIMBY, which stands for “Yes In My Back Yard.” It is driven by grassroots citizens groups pressuring their local governments to develop plans and regulations that will make their communities truly diverse and inclusive. What are governments doing in response to this demand, and what are the legal issues in implementation?

First, YIMBY requires planning. Nearly all states require some form of local planning. This is the “mandatory planning doctrine.” It’s good to have planning, but essential to any effective YIMBY initiative is the “consistency doctrine” requiring that local regulations and land-use decisions be consistent with the plan. Unfortunately, only 13 states have clear consistency requirements, so, in most states, to have a definitive path forward to implementing a YIMBY plan, the states or the local governments will need to expressly provide that local plans, regulations and decisions be consistent with the plans as adopted.

California is one of the consistency states and may have the oldest YIMBY-style law. The Housing Accountability Act, dating back to 1982, expedites local approvals to encourage more infilling. (Calif. Gov’t Code §65589.5). It begins with a declaration of the critical need for affordable housing and then mandates approval of certain affordable housing projects if the local government has not met its fair share of the obligation for such housing as incorporated in the housing element of its plan. As good as this model appears to be, there has been much criticism that it has proved ineffective. California Gov. Gavin Newsom has threatened to withhold transportation funds from local governments not meeting their housing goals.

But plans are not enough. Substantial government subsidies and investment are required to make significant advances in the housing supply. Building affordable housing costs money—lots of it—$330,000 per unit in California. Newsom proposes spending more than $2 billion to help build 3.5 million units in the next seven years, more money apparently than any California governor has ever proposed.

Mandatory planning can be local as well. The YIMBY leader is Minneapolis with its amended 2040 plan permitting, as of right, three dwelling units on all lots zoned for single-family use. The objective is to increase the stock of less expensive, affordable housing, particularly in the most desirable neighborhoods. The city didn’t need a state plan to tell it to do this. What it needed and had in spades were citizen supporters driving the process, as the Brookings Institution has reported.

Seattle, which has 75% of its land limited to single-family homes, committed itself to greater density by opening up about 6% of that land area to higher-density housing. That doesn’t sound like much, but it is for a place such as Seattle with such a deep-seated tradition of exclusively single-family zoning.

The techniques to create a variety of housing types at various price points are many, ranging from direct production and subsidies as in California and under the federal Low Income Housing Tax Credits programs, to property tax abatement, to providing public infrastructure without charge or below cost, to expediting permitting and giving relief from some requirements for affordable housing. For many decades communities have offered density bonuses for projects providing affordable housing. Some states, e.g., Massachusetts and Connecticut, have laws allowing private developers to seek to override local zoning when those laws preclude affordable housing.

Accessory dwelling units can help densify single-family areas and provide smaller, more affordable units for young singles and couples, as well as older residents no longer desiring a single-family home. Allowing single-wide manufactured units in carefully designed moderate to higher density clusters could be an option for some communities.

Inclusionary zoning ordinances may be mandatory, as in requiring a certain percentage of affordable units in certain developments with or without density bonuses, or voluntary, as with the density bonus used as an incentive. Affordable units are most often built on-site or, in some cases, they are permitted to be built elsewhere, or a money payment in lieu of the construction is paid to a housing trust fund that in turn uses the funds to build or help finance affordable housing or subsidized rents. Significant issues include the extent of documentation needed to ensure continuing availability to households needing and qualifying for the units.

Getting affordable housing built is a complex business, and the greatest success often comes in orchestrating federal, state and local efforts and in managing multiple techniques at once.

Published on July 10, 2019 at 12:34 PM:

Viewpoint: Senator is Wrong About ‘Knick’ Ruling

This is not a conservative or liberal issue. It is a question of Constitutional interpretation.

Sen. Sheldon Whitehouse in his recent National Law Journal broadside, “’Knick’-Picking: Why a Recent SCOTUS Ruling Signals a New Day,” goes off the rails in claiming the U.S. Supreme Court’s decision in Knick v. Township of Scott is the product of five conservative justices ganging up to ignore legal precedent so as to impose their agenda and of “dark money” funding a shadowy coalition of groups bent on remaking the court and influencing it to their ends.

The plain fact is that Williamson County v. Hamilton Bank (1985), the decision the court overruled in Knick, was wrongly decided in the first instance and has proved utterly unworkable. This is not a conservative or liberal issue. It is a question of Constitutional interpretation. The Fifth Amendment to the U.S. Constitution provides that no one should have their “private property be taken for public use, without just compensation.” What Knick does is protect that right by opening the door to the federal courts.

The legal construct that Williamson County created was that a person’s property could not be deemed “taken” by the government and a claim for compensation justiciable in federal court until they had subjected themselves to a long process in state court to see if the government b forced to pay something for the rights it invaded.

In the case of Rose Mary Knick, what her town did was pass a law that said anyone during daylight hours could enter her private farmland where she lives alone to access an old, hardly recognizable small private gravesite 300 yards into her property. Under the doctrine of Williamson County Mrs. Knick hadn’t lost anything, at least not yet, even though strangers might wander across her property for years while she sought relief in a state court. Until she was done in state court, her case was not “ripe” for federal court.

What Knick does is make clear that the taking of Mrs. Knick’s property interest occurred the moment the town ordered her to open her private property to the public and on that day she ought to have the right to go to federal court to get relief from the violation of her rights under the federal Constitution. Where else should a property owner be able to get relief under the Bill of Rights than in federal court?

The court made a mistake in 1985 in Williamson County. The court corrected it in Knick,plain and simple. Instead of maligning the majority, we ought to commend them for stepping up and admitting there was error and, that as a practical matter, Williamson County had created a procedural nightmare.

Yes, this was a big victory for property rights advocates, but it is not an issue of political and social philosophy, and right versus left. Prof. Daniel R. Mandelker, Washington University School of Law, has taught land use law for seven decades and is revered by government lawyers and planners. He is, in his own words, a “police power hawk.” He believes in comprehensive government planning and tough regulation to promote the public good, including affordable housing, historic preservation, and environmental protection. He has argued for reversal of the Williamson County ripeness rule for more than three decades and he joined in an amicus brief in Knick urging the court to overrule it. Prof. Mandelker lent his voice and reputation to the cause, uninfluenced by “dark money.”

No doubt property owners will be emboldened by this decision and more takings cases will be filed in federal court encompassing a wider range of infringement of private property rights. But the Knick situation, as so many others like it, was entirely avoidable. The town could have negotiated to acquire an easement from Mrs. Knick and paid fair value for it. If she would not agree, and the town felt strongly enough about it and could prove in court that having the access was a public use, it could have used its eminent domain power to take the easement, paying just compensation at the time of the taking.

Finally, no one need fear that federal courts will be deciding garden variety, local zoning disputes for two reasons. First, the federal courts are courts of limited jurisdiction and generally have no right to decide issues of state law, unless they elect do so under the doctrine of pendant jurisdiction. Second, many takings claims going to federal court are going to be free of state claims because the property owners will not challenge the legality of the offending local regulation or decision, instead suing only to get paid for what has been taken.

Let’s move on.

Published on July 02, 2019 at 12:59 PM:

No Bright Line in SCOTUS Peace Cross Decision

You will find no bright-line test for when a monument with a religious symbol runs afoul of the establishment clause, but still, the court offers some guidance that may help in deciding such cases.

Wade through the 87 pages of the June 20 decision in American Legion v. American Humanist Association and you will find no bright-line test for when a monument with a religious symbol runs afoul of the establishment clause. Still, the court offers some guidance that may help in deciding such cases. The sound bite version is that when it comes to such public displays, age and intent matter. In terms of defending against constitutional attack, it is better if the monument has been around for a very long time and that the intent in placing it was weighted more in favor commemorating something nonsectarian.

The appendix to the opinion tells a good part of the background in the photographs. The Bladensburg Peace Cross monument was erected in 1925 following a seven-year effort by local citizens of Prince George’s County and later the local American Legion post. It features a 32-foot Latin cross and emblem of the American Legion at its center. The cross was chosen because it was reminiscent of the fields of crosses marking the graves of fallen soldiers buried overseas. On the pedestal supporting the cross is a bronze plaque with the names of the 49 soldiers from Prince George’s County who gave their lives in World War I.

The Maryland-National Capital Park and Planning Commission acquired the monument and its site in 1961 and has maintained it at the public’s expense since then. No one apparently complained about the monument until 2014 when the American Humanist Association, joined by others, sued in federal court claiming a violation of the establishment clause.

In the majority opinion written by Justice Samuel Alito and joined by Chief Justice John Roberts, Justice Stephen Breyer and Justice Brett Kavanaugh, the court chose not to apply the three-part Lemon test (Lemon v. Kurtzman, 403 U.S. 602, 1971) often used in establishment clause cases: “Three … tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.”

Justice Elena Kagan joined the majority, except for its criticism of the Lemon test.

Justice Clarence Thomas in his concurring opinion said the court should overrule the Lemon test.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

American Legion establishes four considerations in weighing whether religious monuments, symbols or practices survive scrutiny:

  1. How old is it? If the symbols go back a long time, it is hard to determine the original purposes. Ninety-four years is long enough, but how long is not long enough?
  2. The passage of time may cause any original religious purpose to be overshadowed by new nonsectarian meaning, such as becoming of historical and cultural significance beyond religion, and being the site of patriotic events.
  3. The original message may “evolve” and familiarity with it, in and of itself, may become a basis for preserving it. The court cites Notre Dame, cities in the United States with religious names and century-old state symbols all as transcending religion.
  4. Familiarity and historical significance may make removal something other than a neutral act, manifesting “a hostility toward religion that has no place in our establishment clause traditions,” as in Van Orden v. Perry, 545 U. S. 677 (2005).

For land use practitioners, the Lemon test, weakened as it now is and probably doomed, is going to be ineffective in regulating religious uses, though perhaps it may still serve as a kind of first-cut measuring stick. The court focuses its criticism of the Lemon test on those situations “that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations,” but in a footnote it identifies six categories of cases, including land use, and a seventh miscellaneous category that includes the cases where religious uses have been given veto power over other land uses.

This does not bode well for the continued use of the Lemon test in land use cases. Still, the first prong of the Lemon test is instructive: religious land use regulation should be nonsectarian. The best way to avoid free exercise and establishment clause claims and those under the Religious Land Use and Institutionalized Persons Act (RLUIPA) is to not regulate religious land uses at all as a separate use, but treat them as any other place of public assembly.

For local governments facing the uncertain, fuzzy line four-part considerations in the Peace Cross decision, and for those unhappy with the decision itself, it might be best to consider Kavanaugh’s suggestion of the alternative of conveying such monuments to private owners: “The conclusion that the cross does not violate the establishment clause does not necessarily mean that those who object to it have no other recourse. The court’s ruling allows the state to maintain the cross on public land. The court’s ruling does not require the state to maintain the cross on public land. The Maryland Legislature could enact new laws requiring removal of the cross or transfer of the land.”

Such a transfer is not likely to happen in Maryland, however. Maryland Gov. Larry Hogan called the decision a “great victory” and declared: “Today’s ruling ensures that this memorial—a dignified tribute to those who came before us and made the ultimate sacrifice—will stand tall and proud for the ages.”

Published on June 26, 2019 at 12:32 PM:

More than a “Knick” —SCOTUS Overrules “Williamson County” in Stunning Victory for Property Owners

The U.S. Supreme Court’s important decision in Knick v. Township of Scott will increase the number and range of takings cases brought by property owners. The 5-4 decision pulls no punches.

The U.S. Supreme Court’s important decision in Knick v. Township of Scott, 2019 WL 2552486, on June 21 will increase the number and range of takings cases brought by property owners now that the court has bulldozed open the direct path to the federal courts. The 5-4 decision, written as some predicted by the chief justice, overrules the 34-year-old precedent in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and pulls no punches in doing so: “Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights. … Williamson Countywas not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”

Under Williamson County, takings plaintiffs have been subject to what has been pejoratively labeled the “ripeness shuffle,” and blocked from proceeding in federal court until the state courts have considered compensation. Effectively, this process has barred most claimants from ever having their day in federal court. Williamson County held that “a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law.”

In its decision in Knick overruling Williamson County, the court holds that a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.” Period. Full stop. The federal courthouse door has been opened full wide.

The case of Rose Mary Knick was procedurally typical. Her complaint brought under 42 U.S.C. §1983 in federal court alleged a taking arising from the town enacting an ordinance requiring that she and other property owners with small private cemeteries on their land allow the public to come onto their property during the day. The district court dismissed her claim under Williamson County and the Third Circuit affirmed.

The chief justice was joined by Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh. Property rights pundits had been waiting to see where Kavanaugh would line up, many predicting he would join with the other conservative justices. Justice Elena Kagan filed a dissenting opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined. The dissent argues that there is no taking until the government denies compensation in a subsequent proceeding. The dissent also expresses the fear that federal courts will be burdened with local and state law issues, and that the majority decision transgresses the principles of stare decisis.

Property rights advocates are ecstatic. Robert Thomas is a partner with Damon Key Leong Kupchak Hastert in Honolulu, the author of the popular blog, and a leader in Owners’ Counsel of America, an organization devoted to protecting private property rights. He observes:

“The federal judiciary’s unnecessary thirty-year abandonment of property and takings cases is at long last over. The court today rightly relegated to history’s dustbin a judicially-created doctrine that deprived property owners of a federal court forum to resolve federal constitutional claims. The decades of damage that Williamson’s County’s ripeness doctrine wrought on property owners cannot be retroactively undone of course, but by putting property rights on equal footing with other constitutional rights, today’s ruling is a step in the right direction. The court rectified a mistake it never should have made, and rightly restored property owners’ rights to the ‘full-fledged constitutional status’ they should enjoy.”

Jim Burling, who is vice president for legal affairs for the Pacific Legal Foundation, which represented Knick before the court, was especially pleased with the result because his nonprofit legal organization had been fighting for decades to get Williamson Countyoverruled:

“Property rights are no longer poor relations to other constitutional rights. For too long, property rights have been the only constitutional right that Americans have not been able to litigate in federal court; now property rights are on an equal footing. Knick will give property owners the same choice of forum for federal takings claims that state and local governments have always had in defending those claims: state or federal court.

“While today’s decision doesn’t change the substantive law of takings, it will put more teeth into that law by making it possible for property owners to avoid some decidedly unfriendly local and state courts.

“Now that Scott Township will face a serious takings claim when the case is remanded to federal district court, we hope it will come to its senses and pay Ms. Knick for the taking of an easement across her property, up to the present, and then rescind the ordinance. Ms. Knick simply wants peace, quiet, and security on her farmland—not a potential parade of trespassers at all hours of the day.”

Michael M. Berger of Manatt, Phelps & Phillips in Los Angeles has argued four takings cases before the court and authored an amicus curiae brief in Knick for the Institute for Justice, Owners’ Counsel of America and professor Daniel R. Mandelker, supporting petitioner. Berger has a unique perspective from which to assess Knick:

“For 34 years, American property owners have been prevented from seeking constitutional justice in federal courts. For reasons that were never clear, the Supreme Court concluded that such federal issues had to be “ripened” by trying—and losing—them in state courts. No other American litigant was blocked from the federal courthouse in this way. No more. Apparently, 34 years of nonsense was enough for a majority of the Court, which clearly and decisively put an end to the practice. So one is tempted to chant “ding dong, the witch is dead” while dancing on the grave of Williamson County Reg. Planning Agency v. Hamilton Bank, the case that inflicted this unfair rule on American citizens. Many of us knew the rule was wrong 34 years ago, and have repeatedly said so ever since. Reading the majority opinion in Knick v. Township of Scott, one is only left to wonder how the clarity of its analysis escaped everyone for decades. This is an issue on which conservatives and liberals should be able to join: conservatives because it provides the promise of real protection for property rights, and liberals because it protects the rights of individuals against the power of the collective state. All in all, a good day for the Constitution.”

Property owners who believe they have been wronged by the government will be encouraged by Knick to bring their cases to federal court under 42 U.S.C. §1983, and lawyers who might represent them will more readily step up with the path ahead now cleared and the possibility of recovering their attorney fees under §1988. There will be more cases brought and more issues will be raised, further challenging the limits of public regulation.

The court assured governments that overruling Williamson County need not impede government regulation: “Governments need not fear that our holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available—as they have been for nearly 150 years— injunctive relief will be foreclosed.”

This is the dawn of a new era in takings litigation.

Published on June 24, 2019 at 05:41 AM: