State & Local News
Vol. 21, No. 3, Spring 1998
Recent Developments
Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravin, Davis & Himmel in Woodbridge, New Jersey.
By Peter A. Buchsbaum
From courthouses down the block and across the nation come the following:
Term Limits-California
Legal landmarks dissolve quickly. In an earlier column, we reported a decision of the Ninth Circuit holding the California term limit initiative unconstitutional because the public question failed to give sufficient notice that it intended a lifetime ban on further service once the term limits had been reached. Now the en banc Ninth Circuit has reversed the panel decision and determined that the initiative was indeed constitutional. Accordingly, term limits for legislators and other officials are alive and well in California. Bates v. Jones, 127 F.3d 839 (9th Cir. Oct. 7, 1997), reversed en banc, 131 F.3d 843 (9th Cir. Dec. 19, 1997).
Timed Growth Ordinance Struck Down
The Superior Court of New Jersey has struck down a local timed growth ordinance. The ordinance specified that full build out under the zoning could not occur until capital improvements were provided. The Superior Court held that the ordinance was unauthorized by New Jersey's land-use enabling legislation and that it functioned as a de facto moratorium, which was barred by state law. Toll Bros., Inc. v. Township of West Windsor (N.J. Super. Ct. Docket MERBLB2365B97, Nov. 20, 1997).
Internet Access, Pornography, and Libraries
According to U.S. Law Week, 66 U.S.L.W. 2416, a nonprofit organization and library patrons have sued to overturn the Loudoun County, Virginia, Public Library policy which blocked access by library patrons to certain Internet sites. Relying on Reno v. American Civil Liberties Union, 138 L. Ed. 2d 874 (June 26, 1997), where the Supreme Court struck down the Communications Decency Act, plaintiffs allege the mandatory use of filtering software for library patrons violates the First and Fourteenth Amendments to the U.S. Constitution. Plaintiffs claim that the filtering software blocks material that is not obscene and does not thoroughly screen out pornography. Mainstream Loudoun v. Board of Trustees, No. 97B2049 (E.D. Va. filed Dec. 22, 1997).
Pornography Buffer Zone
While on that subject, New Jersey's intermediate appeals court has upheld a state law requiring adult businesses to be separated by at least 1,000 feet from each other and from churches or other such uses. Township of Saddle Brook v. AB Family Center, 704 A.2d 81 (App. Div. Jan. 2, 1998). Plaintiff had argued that the 1,000 foot restriction from other uses left no room for it to operate in the small community of Saddle Brook. Go elsewhere, said the appellate court, indicating that if adult businesses could be located in other towns nearby, the First Amendment was not violated merely because no such activity could be carried out in Saddle Brook. The case was remanded for trial on whether adult uses were barred from the region, as well as from the defendant town.
Federal Review
In City of Chicago v. International College of Surgeons, No. 96B910, 66 U.S.L.W. 4041, decided December 15, 1997, the U.S. Supreme Court ruled that federal courts had jurisdiction over lawsuits challenging local administrative actions that were decided on the basis of a record made before the municipal agency. The majority, through Justice O'Connor, upheld removal to federal court of a case which included, among other claims, federal challenges to actions by the Chicago Landmarks Commission. The dissent, per Justice Ginsberg, would have held that a challenge to the local action, based on the record below, was an appeal, and not a civil action conferring federal jurisdiction on the district court under 28 U.S.C. § 1331. However, the landowner=s victory was not complete since the Supreme Court indicated that the federal district court could still abstain even though it had jurisdiction. Thus, this already eight year old case is far from over.
Nonetheless, the case may make it far easier to obtain review of certain types of local proceedings in federal court.
Telecommunications Act
And finally, AT&T Wireless v. Virginia Beach, 979 F. Supp. 416 (E.D.VA. 1997), is another case implementing the ban on arbitrary local restrictions on telecommunications towers contained in the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7). The moral of this case is that the federal courts will come after a community which denies permission for construction of a tower without good reason. Moreover, such action may be drasticCthe court directly ordered the grant of the permit for the tower and refused to remand the matter to the Virginia Beach's City Council.
That's it for now. Please send us other interesting developments in your practice for the next column.
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