Beach Access—First Amendment—Nonresidents. The common law public trust doctrine may now be supplemented by more powerful constitutional protections for beach access. On July 26, 2001, in the high summer, the Connecticut Supreme Court ruled that Greenwich, Connecticut, a wealthy New York suburb, could not stop nonresidents from using a beachfront park on the Long Island Sound. The court found that the park was a traditional public forum. As such, it had to be open under the First Amendment to everyone, not just residents. Furthermore, the ban on out of towners was not a reasonable time, manner, or place restriction since it was not narrowly tailored to serve a legitimate municipal goal.

Given the prevalence of residents-only beaches in certain metropolitan areas, this decision could reverberate in other states. Also, its roots in the First Amendment will rule out legislative tinkering—a decision based on a common law public trust theory could have been overruled by legislation. Leydon v. Town of Greenwich, Conn. Sup. Ct. No. SC 16356, July 26, 2001, digested in 29 Land Use L. Rep. 123 (Aug. 1, 2001).

Contractors—Registered Domestic Partners—Municipal Anti-Discrimination Ordinances. The Ninth Circuit has rejected a claim by an out of state contractor against a San Francisco municipal ordinance that required city contractors to give nondiscriminatory benefits to employees with registered domestic partners. The contractor argued that the ordinance violated the Commerce Clause because it both directly regulated interstate commerce and was an undue burden on it. As to the first challenge, the court construed the ordinance narrowly so that it benefited only those employees of a contractor who actually worked in San Francisco, not employees working elsewhere in California or out of state. The court further found little evidence of burden on interstate commerce from the ordinance as narrowly construed. Accordingly, the domestic partner benefit ordinance was upheld as furthering a valid city interest in ensuring employment benefits to partners. F.D. Meyers, Inc. v. San Francisco, 70 U.S.L.W. 1012 (9th Cir. June 14, 2001).

Street Closings—Landowner Liability. Two spectacular construction accidents in New York City gave rise to an interesting lawsuit. One mishap involved the collapse of a forty-eight story construction elevator tower near Times Square, the other, falling bricks and mortar from the collapse of a wall in an unfinished thirty-nine story office tower. These accidents led to huge street closures that lasted for weeks.

Businesses affected by the closures sued the site owners, alleging negligence and seeking compensation for their economic losses. The New York Court of Appeals, on June 7, 2001, rejected the claims. The property owners owed no duty of care to the landowners, or the class they sought to represent, for business losses suffered when the streets were inaccessible. Further, the inconvenience caused by the closures did not rise to the level of a compensable nuisance because the injury visited upon the businesses did not differ from that suffered by the general public.

So Palsgraf v. Long Island Railroad rides again in another New York City case. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 70 U.S.L.W. 1012 (N.Y. Ct. App. June 7, 2001).

Business Shut Down Order—Nuisance—Compensable Taking. Speaking of nuisances, the Florida Supreme Court, unanimously this time, decided that a shut down order based on alleged nuisance could result in the municipality’s having to compensate the property owner. In this case, there had been a six-month shut down of a fifty-seven unit motel because of drug and prostitution activity. Another apartment complex had been shut down in response to cocaine sales.

Applying Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the court found that the nuisance activities were not so persuasive and ongoing that the entire use constituted a nuisance. It found that compensation was thus required under the Lucas decision, which had held that absent a nuisance, among other things, government had to pay when it totally barred economic use of a piece of land. The court also distinguished cases that held that a temporary moratorium on future land development did not constitute a per se taking; it believed that the shut down of an ongoing business required compensation. Keshbro, Inc. v. Miami, Fla., 70 U.S.L.W. 1060 (Fla. Sup. Ct. July 12, 2001).

Affordable Housing Set Aside Ordinance—Takings. In another slant on takings, a contractors’ association sued to invalidate a Napa, California ordinance that required all housing developers to set aside 10 percent of newly built residential units as affordable homes. The developer could satisfy the requirement through a land dedication or payment of fee in lieu of the housing or land.

The challenge was rejected by California’s intermediate appellate court. The court declined to strictly scrutinize an ordinance that was applied across the board to all developments and was not imposed on an ad hoc basis on particular projects. It found the ordinance substantially advanced the legitimate state interest in affordable housing and that was enough. The ordinance did not have to demonstrate a rough proportionality between the amount of cash or housing extracted from the developer and the harms caused by the development. Home Builders Association of Northern Cal. v. City of Napa, Cal. Ct. App. #A090437, June 6, 2001, digested in 29 Land Use L. Rep. 101 (June 20, 2001).

Board Chair—Suppression of Speech—Judicial Immunity. In a decision likely to warm the hearts of those hard pressed citizens who preside over board meetings, a federal district court threw out a damage claim filed against a board chair who physically removed a long-winded speaker who defied an order to stop a tirade. The court agreed that the meeting was a public forum. It also found that the interruption of the speech was contrary to the First Amendment
because the chair had broken in only when the citizen mentioned two township officials by name. Thus, the interruption and removal was based on content, a First Amendment no-no. Nonetheless, the court held the chair absolutely immune from damages. The incident occurred at a zoning board hearing. Since zoning boards are quasi-judicial immunities, and the chair was exercising his authority to run a meeting, he was entitled to absolute judicial immunity.

One wonders what remedy would be effective in such a case. Clearly there was no opportunity for an injunction. So the speaker won the point of law, but the chair won the battle. Zepach v. Dismuke, 134 F. Supp. 2d 662 (E.D. Pa. 2001).

And finally, a personal note. In preparing a lengthy trial brief, I came across an adverse but unreported trial court decision. However, the opinion was undated and unsigned. When I inquired about the matter of the plaintiffs’ attorney, it turned it out that the opinion had been written by a much loved judge who had recently died. The opinion was found among his papers. The judge who took over the case apparently decided that the opinion constituted a reasonable resolution of the matter and sent it out to counsel as the ruling in the case.

A motion for rehearing is being filed.

Local government law may be frustrating, but it is never boring.