RECENT DEVELOPMENTS

By Peter A. Buchsbaum

Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.

This last quarter has been a rather spunky period for state and local government law. Here are some examples.

Husband and Wife-Conflict of Interest-Appointments. This case was referred to me by Bill Kearns, former president of IMLA. In New Jersey, the municipal governing body appoints members of the planning board. Kathleen Shapiro, a council member, voted to reappoint her husband, Andrew, to the Planning Board of Moorestown Township, despite advice from the municipal attorney that she should not vote. The appointment was approved 3-2. In response, the Appellate Division of the New Jersey Superior Court found a disqualifying conflict of interest. It held that because state ethics statutes had expanded the common law definition of a conflict of interest, there was a conflict, even though no financial interest was implicated because Planning Board members are unpaid. The court was concerned about the public's perception of the appointment of a spouse to a "prestigious and potentially very influential position." Thus, despite Andrew's being endorsed by many members of the public, Kathleen's decisive tie-breaking vote for the reappointment was voided. As the court noted, "marriage is a direct personal involvement which might be reasonably expected to impair objectivity." Sound advice. Shapiro v. Mertz, 845 A.2d 186 (N.J. Super. Ct. App. Div. 2004),

Noise-Vagueness-Constitutionality. The City of Columbus's noise ordinance bans any unreasonably loud and/or raucous noise that could annoy or disturb the quiet, comfort, or repose of a person of ordinary sensibilities. On review, a panel of the Ohio Court of Appeals held the ordinance not unduly vague. Use of a "reasonable person" approach to determining when noise became unbearable was sufficiently clear-despite room for considerable discretion in enforcement, the ordinance passed constitutional muster because the locality could not be expected to provide "perfect clarity and precise guidance." City of Columbus v. Kendall, 798 N.E.2d 652 (Ohio Ct. App. 2003), digested in ABA REAL ESTATE Q. REP. (Winter 2003), at 68.

Two cases won by municipal uniformed officers have considerable interest as well. In one of the them, the plaintiff won even though he was unwilling to admit his identity.

Free Speech-Adults Only Videos-Non-Job Related Activity. One John Roe, a pseudonym for a San Diego police officer, videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation. He offered his homemade video for sale on the adults-only area of eBay. His activity came to light when one of his supervisors discovered the videos online and recognized his picture-the sergeant had apparently located the plaintiff's auction username, Code3stud@aol.com, which had also been used to sell a kind of uniform formerly used by the San Diego Police Department. He was then fired. All his conduct occurred when he was off duty and away from his employer's premises. On appeal, the Ninth Circuit, by a 2-1 vote, held that "Roe" had stated a cause of action, and reversed the trial court's dismissal of the complaint. In reaching its conclusion, the court construed Connick v. Myers, 461 U.S. 138 (1983), which held that an employee's speech may be protected when he speaks as a citizen on matters of public concern rather than as an employee upon matters of personal interest. Here, the speech had nothing to do with employment. Therefore the only issue was whether the sexual speech embodied a matter of public concern. Because he was speaking and acting as a member of the general public, and not making comments about his office, said the court, his expression per se involved a matter of public concern and was not limited by restrictions on work-related comments by employees. The court remanded the case for a hearing on whether the free speech interests in Roe's expressive activity outweighed the department's interests in promoting the efficiency of the public service. In a strong dissent, one judge found the speech did not involve a matter of public concern. He felt the federal courts had no business intervening in this case. Roe v. City of San Diego, 356 F.3d 1108 (9th Cir. 2004).

Random Drug Testing-Fifth Amendment-Firefighters. In a somewhat more conventential piece of litigation, the Supreme Court of Arizona halted the City of Mesa's unannounced random urine testing of firefighters for drugs and alcohol. The city had conceded that its random testing was not based on any finding of a drug problem within its ranks, or any suspicions as to particular individuals. It sought to defend the program on the ground that it served the special governmental needs for firefighting and that it did not disclose the test results to law enforcement offices without the firefighter's consent. In response, after engaging in a balancing analysis, the Arizona Supreme Court found the program unduly invaded privacy in violation of the Fourth Amendment. It distinguished cases involving Customs Service employees because firefighters were not directly involved with drug interdiction and did not carry a firearm. In addition, the firefighter's communal work environment provided a better opportunity for supervisors to detect drug abuse. In this context, the element of fear and surprise involved in unannounced random testing and the intrusiveness of such an approach could not be squared with reasonable privacy expectations. The court also declined to compare firefighters to secondary school students since they were not entrusted to the state's care. As a result even the firefighters' lessened prior expectation of privacy as uniformed employees was sufficient to overcome the testing program, which represented the very type of arbitrary and invasive acts by officers of the government against which the Fourth Amendment was meant to guard. A program of random but announced testing might have passed muster. But the surprise random tests did not. Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004).

Religious Uses-Zoning-Religious Land Use and Institutionalized Persons Act (RLUIPA). There are an increasing number of reported cases involving challenges by religious bodies to local restrictions against religious uses. The developing case law has not yet provided a great deal of uniformity in the resolution of these conflicts, although the cases have generally upheld the constitutionality of RLUIPA. For example, when Surfside, Florida, population 4,300, zoned out churches and synagogues from seven of the town's eight zoning districts it was sued by an Orthodox synagogue that sought to build a facility within the community. The court found there was no undue burden on religion, because one district, a residential district, a few blocks away from the barred business districts, was available. The court, however, did find a violation of those provisions of RLUIPA that barred the government from disfavoring religious uses as compared with other uses. Because Surfside allowed private clubs, and a synagogue and a private club were both assemblies, its ordinance discriminated against religion and violated RLUIPA. The town's defense that private clubs contributed more to the local business districts than religious organizations was merely an unsupported assertion not backed by any evidence. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), digested in 32 Land Use L. Rep. 67 (2004).

Next, the Ninth Circuit found no violation of RLUIPA when a city denied the application of a religiously affiliated college for a zone change from hospital use to educational facility. The college had been informed that its rezoning application was incomplete because it lacked landscape plans showing storm water detention areas and building elevations. The city had also sought information regarding the number of night classes, number and hours of evening sporting events, whether people attending services on Sunday would include only students or persons coming from offsite, lighting details, and the number of seats in the theater/chapel. When such information was not provided, the city denied the rezoning application. In response, the Ninth Circuit held that there was no RLUIPA violation because the city was only asking it to submit a complete application as is required of all applicants. The city had made no determination whatsoever concerning the use of the property. In other words, the burden of going through the zoning process generally applicable to all was not a substantial burden on religious exercise under RLUIPA. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004).

Takings-Ripeness-Relitigation of Facts. The procedural opening provided by the Second Circuit in Santini v. Connecticut Hazardous Waste Management Serv., 342 F.3d 118 (2d Cir. 2003), for federal takings claims has not been supported elsewhere. The Ninth Circuit continues to hold that when the facts concerning federal takings claims are litigated in state court, they cannot be relitigated in federal court, regardless of any attempted reservation of federal rights. Although Supreme Court precedents make it necessary to bring the federal claim in state court, that circumstance did not justify relitigation of the same facts in federal court even though, in effect, the takings plaintiff was losing any chance to raise his or her federal claims in federal court. San Remo Hotel L.P. v. San Francisco City and County, 364 F.3d 1088 (9th Cir. 2004), digested in 32 Land Use L. Rep. 59 (2004).

Thus, as Professor Tom Roberts noted a while ago, in the process of ripening the federal takings claim, by bringing it to state court, you may also lose the claim. Reservation of federal rights as approved by the Second Circuit will not suffice in the Ninth Circuit. Finally, even when a landowner is successful in staying in federal court, under a theory other than takings, the scope of relief continues to narrow. In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the U.S. Supreme Court held that a single individual could claim denial of equal protection when there is absolutely no rational basis for denial of a land use permit that had been granted to others in similar circumstances. The court did not explicitly require an ill motive on the part of the government but simply a rather thorough going irrationality. The narrowness of this opening for a federal land use plaintiff was affirmed by the Seventh Circuit in a recent case involving the Wisconsin Department of Natural Resources (DNR). Mark Bell complained that he had not received a permit to build a dock even though three others had received such permits at about the same time. The court noted, however, that one application was filed a year earlier, before the DNR had become so strict in its approach to dock permits; the second, unlike Bell's, provided an eighty foot flow through for allowing free movement of waters along the shore line; and two others involved rehabilitation of dilapidated older structures with newly constructed flow throughs. Sustaining the grant of summary judgment to DNR, the court held that Bell, on these facts, failed to carry the "very significant burden" of a class of one plaintiff. He had not "eliminated any reasonably conceivable state of facts that could provide a rational basis for the classification. Concurring, Judge Posner would have gone even further and required ill motive for a class of one plaintiff. He noted that sometimes the government simply acts randomly and gave the example of a policeman letting one speeder go by at sixty-five while giving a summons five minutes later to another one for going sixty. He did not like federalizing such claims. Thus, although equal protection plaintiffs do, unlike takings complainants, have the comfort of getting their day in federal court, they are very unlikely to win. Bell v. Duperrault, 367 F.3d 703 (7th Cir. 2004). Quite a quarter, I think you'll agree.