Some interesting stuff this month. As usual.

Bull in a China Shop—Tank in Historic Zone—Zoning Variance. Some things you just cannot make up. In this land use dispute, the Burlington City Planning Board denied the application of a VFW post bordering the Delaware River, to expand a nonconforming use by placing a surplus army tank on its property. The tank was to be a memorial to veterans of the Armed Forces. The VFW hall is located in a residential zone in the city’s historic district. But also nearby were a Catholic Welfare Board office building, a three-story building housing apartments as well St. Mary’s School.

Objectors presented expert historic testimony that the proposed tank would affect the historic area. It would even destroy the historic value of the VFW property itself, which included a large setback and a riverfront lawn abutting the Delaware River.

The board chose to believe this testimony. The court agreed with the board. It found that the visual impact of the tank would be substantial because it was intended to be seen. "Because of its imposing nature, the tank leaves a strong and lasting psychological impression." No tank.

Too bad this one had to go to court. Especially after 9/11, it is hard to criticize what the VFW sought to do even if the board and neighbors had a point about historic preservation. In any event, historic tank in a historic distinct was a no go. Scully-Bozarth Post # 1817 of the VFW v. Planning Board of the City of Burlington, 827 A.2d 1129 (N.J. Super Ct. App. Div. 2003).

Adult Dancing Establishment—Zoning—Regulation of Physical Layout. Manatee County, Florida, adopted an adult entertainment code that specified physical requirements for premises used as adult dancing establishments. The ordinance was attacked by the two adult entertainment lounges in the county. In response, the Eleventh Circuit held that while the county had produced evidence in support of another ordinance that banned nudity in public places, it had not produced evidence showing that the physical layout restrictions were narrowly tailored to serve the county’s interest in reducing the adverse secondary impacts of adult businesses. Whatever the bad effects of adult dancing might be, they were not related to the physical requirements for premises in which nude dancing had been allowed. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d 1251 (11th Cir. 2003), digested in 31 Land Use. L. Rep. 123.

Adult Businesses—Alternate Communications. In another Eleventh Circuit case, the court also struck down a city ordinance that allowed adult businesses only on three specific lots occupied by three existing adult businesses. The ordinance left no room for a fourth existing business. The fourth business, "Sassy’s," had not initially been an adult business until the City of Cocoa Beach in 1999 revised its ordinance by expanding the definition of adult entertainment to places in which dancers danced for tips or in "close proximity" to patrons. The city ordered Sassy’s to close by September 2004.

Although agreeing that nude dancing could be regulated, the court declared that it had never upheld an ordinance that provides fewer channels for adult dancing communication than the number of presently operating businesses. Accordingly, by zoning Sassy’s out of business, it unduly restricted erotic messages in Cocoa Beach. Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301 (11th Cir. 2003), digested in 31 Land Use L. Rep. 125.

Coordinated Permitting—Environmental Review—Beach Erosion. As most practitioners know, land use and environmental permitting has become more complex over the last decade. Single projects usually require multiple, and frequently overlapping reviews by different agencies. Few cases exist that address the legal consequences of these overlaps. One was recently decided by the New York Court of Appeals.

In Bridgehampton, Long Island, New York, oceanfront property owners had requested permission to install steel bulkheads to protect homes following severe winter storms in 1992–93. The landowners sought permits from the Town of Southampton, in which Bridgehampton is located, and also from the state Department of Environmental Conservation (DEC), which had concurrent jurisdiction over the project because the bulkheads would be built in tidal wetlands. Also implicated was state review under the state Environmental Quality Review Act, New York’s analogy to NEPA.

The appropriate town official asked DEC, the state agency, to take lead agency status because the official felt the project could have environmental impacts beyond the local level. DEC agreed to do so, and after getting the landowner’s agreement to move the proposed bulkheads to the landward side of the dunes, found no significant environmental impact, and granted the state permit.

When the landowners then applied to the local administrative official, who had previously deferred to the state, he refused to issue a local permit. A town review board agreed and in 1995 declared itself to be the lead agency. When the case reached the New York Court of Appeals, the state’s highest court, eight years later, it reversed the local officials. It held that the locality had every opportunity to participate in the DEC environmental review and had failed to notify it of any concerns. It did not voice objections until after receiving copies of the negative declarations in the state’s tidal wetlands permits. Under these circumstances, the independent local review was unauthorized, and the local municipal entity was bound by the DEC’s negative declaration. The court noted that the local government had never appealed from the state decisions, but had simply attempted to bypass them.

What is unclear, however, is what happened during the eight years between the locality’s attempt to assert jurisdiction in 1995 and the New York Court of Appeals decision in 2003. In a case in which severe hazards to persons or property may be involved, our system of administration and judicial review should take less than eight years to resolve the problem. Gordon v. Rush, 792 N.E.2d 168 (N.Y. 2003), digested in 31 Land Use L. Rep. 100).

Exclusionary Practice—Americans with Disabilities Act—Standard for Evaluation of Permit Denial. Continuing its consistent dim view of the Americans with Disabilities Act, the Seventh Circuit has just overturned a damage award granted to Discovery House, a company that operates for-profit drug addiction rehabilitation programs. The City of Indianapolis told Discovery House that its rehab facility was not a permitted use in the zone that included doctor’s offices and hospitals. After litigation, a state appeals court reversed this denial. Meantime Discovery House had filed a damage suit in state court under the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. The case was removed to federal court by the municipality and a jury awarded $1 million.

The Seventh Circuit reversed. It held that because the state courts had approved location of the facility, Discovery House only had a claim for lost profits, not for denial of a reasonable accommodation for disabled persons. It found such a claim not cognizable. Further, the court found no evidence of discriminatory intent, as would be required for a cause of action under the Civil Rights Act, because the motives of the witnesses who opposed the facility could not be held against the board of zoning appeals. Although the court noted that Discovery House had neatly avoided the pitfalls of a takings claim, such as ripeness, it reiterated that federal courts are zoning boards of appeal, and that there were no claims cognizable under ADA or § 1983.

Clearly the Seventh Circuit might not like zoning cases, but how far can a court go in ignoring the ADA when a facility is denied the right to open in apparent violation of federal law, and especially when the case is only brought to federal court under its removal jurisdiction? One wonders whether, if this had been an interstate auto accident, the Seventh Circuit would have refused to find a claim based on the fact that it is not a traffic court. Discovery House v. Consolidated City of Indianapolis, 319 F.3d 277 (7th Cir. 2003).

Not having heard from any of you recently, I once again request that you send me your interesting, challenging, or even bizarre cases for reporting in this section of the newsletter.