State & Local News Vol. 22, No. 2, Winter 2000 Recent Development By Peter A. Buchsbaum A review of land-use journals, such as The Land Use Law Report, demonstrates the increasing interaction between federal requirements and local land-use law. Of six cases highlighted in the October 27, 1999 edition of Land Use Law Report, five dealt with federal claims affecting local land development regulations. Two of the cases involved interpretations of the Telecommunications Act of 1996 in the face of local government denials of permission to build cellular communications towers. Two other cases interpreted the Federal Fair Housing Act Amendments as to group homes for five persons suffering from Alzheimer's Disease, and for ten abused, neglected, or abandoned juveniles between the ages of twelve and seventeen. The local government only won one of these four cases. These results show that recent federal laws like the Telecommunications Act and the Fair Housing Act continue to have a fundamental impact on local government. The telecommunications cases are 360º Communications Company v. Board of Supervisors of Albermarle County, 50 F. Supp. 2d 551 (W.D. Va. 1999)(now on appeal), finding restrictions against towers on ridgelines to constitute an illegal ban on cellular communications towers, and New York SMSA Limited Partnership v. Middletown Board of Adjustment, 734 A.2d 826 (N.J. Super. Ct. App. Div. 1999), which actually upheld a local ban on towers within 200 feet of a residential zone. The two fair housing cases are Groome Resources Limited v. Parrish of Jefferson, 52 F. Supp. 2d 771 (E.D. La. 1999), ruling that delay in responding to an application to construct an Alzheimer's group home violated the Fair Housing Act, and Keys Youth Services, Inc. v. City of Olathe, 52 F. Supp. 2d 1284 (D. Kan. 1999), finding that an ordinance limiting occupancy of group homes to eight or fewer disabled persons offended the Fair Housing Act's ban on discrimination on the basis of familial status. The one area where local governments appear to be uniformly successful in remaining free of federal law involves local sign ordinances requiring signs to be a particular color or type. Courts continue to hold that such restrictions do not infringe upon businesses' registered trademarks and hence to not violate the Lanham Act. Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12 (2d Cir. 1999). Despite this one particular victory skein, there can be no doubt that federal requirements more and more impact the daily business of local zoning and land-use regulation. Yet even this victory is limited. In another battle over sign regulations, one involving the First Amendment rather than a federal statute, municipal government took it on the chin. This past January, the U.S. District Court for Maryland struck down an ordinance that prohibited posting campaign signs more than forty-five days before an election. The ordinance also required removal of signs ten days after the election. Relying on City of Ladue v. Gilleo, 512 U.S. 43 (1994), the court found that sign regulations could not limit display of political signs to specified times of the year. Instead, the local government's right to regulate was limited to controls over the size, shape, and location of signs. Accordingly, the Prince Georges County, Maryland ordinance was struck down. Perry v. Prince Georges County, 33 F. Supp. 2d 447 (D. Md. 1999). However, states seem ever freer to go their merry way, despite federal requirements. Juxtaposed against the local defeats under the Fair Housing Act is a recent federal victory for New York State involving a sister statute, the Americans with Disabilities Act. A New York court has recently dismissed a lawsuit that sought to assert a right of disabled persons to access via road remote parts of the state's Adirondack Park. The court, relying on the burgeoning state immunity doctrine, held the state immune from suits in federal court based on ADA. Galusha v. New York Dep't of Environmental Conservation, No. 98-CV-1117, 27 Land Use L. Rep. 127 (N.D.N.Y. 1999). Some other news follows: Standing to Challenge Zoning Ordinances. Owners of land adjacent to property benefited by a new zoning ordinance were held by the trial court to lack standing. On appeal, New York's intermediate appellate court found that standing should be liberally allowed and that the close proximity of a neighboring property owner to an expanded resort stable could itself give rise to an inference of injury greater than that suffered by the public at large. Accordingly, the dismissal for want of standing was reversed and the case remanded for a hearing on the merits. Massielo v. Town Board, 684 N.Y.S.2d 330 (App. Div. 1999). Access to Local Public Meeting-Videotape. What to do when an objecting developer or citizen seeks to videotape a public meeting? West Whiteland, Pennsylvania, used a police officer to stop a developer from videotaping the meeting. The developer sued in state court, and won on the ground that the Pennsylvania Sunshine Act required municipal governments to allow videotaping. The developer sought damages alleging violations of the First Amendment. The municipality-as its right-removed the case from state to federal court, which found in its favor on summary judgment. On appeal, the Third Circuit held that while there was a First Amendment right of access to the Planning Commission meeting, that right of access was not offended by the ban on videotaping since interested persons retained the ability to take notes, use audio recording devices, or even obtain a stenographic recording. Thus, no First Amendment violation had occurred even though a state statute had been violated. Whiteland Woods LP v. West Whiteland, Pa., No. 97-1944, 68 U.S.L.W. 1204 (3d Cir. Sept. 23, 1999). Residency Requirements-Access to Public Fora. In another First Amendment case, the Fourth Circuit struck down a residency requirement that affected a grassy mall across from a county building. The court held that since the mall was a public forum, expressive activities-in this case a Christmas Creche-could not be restricted to residents. Three judges dissented from this en banc decision on the ground that the mall in question was not generally open to the public. Notwithstanding the dissent, the majority's observations that the residency requirement unduly restricted speech appears sensible. Warren v. Fairfax County, 68 U.S.L.W. 1235 (4th Cir. Oct. 13, 1999)(en banc). Preemption-(1) State Requirement for Full Prescription Drug Coverage; (2) State Property-Cellular Towers. Finally, we had two interesting preemption cases, one involving federal versus state law and the other state versus local law. The effort by Massachusetts to require organizations offering Medicare Supplemental coverage also to provide full prescription drug coverage has been rejected by the First Circuit. According to the court, the Balanced Budget Act of 1997 anticipated that federal regulations would control Medicare benefits. Therefore, no state had the right to require more of an HMO provider than did the Medicare regulations. The Massachusetts effort to tack on additional benefits was therefore rejected. Massachusetts Association of HMO's v. Ruthardt, No. 99-1133, 68 U.S.L.W. 1219 (1st Cir. Oct. 8, 1999). In a state-local case, the Supreme Court of Virginia ruled that the mere fact that a telecommunications tower was located on state land did not exempt that tower from local zoning regulations. The private companies had primary control and use of the towers and the land, and the towers were owned solely by the companies. Therefore, they were not exempt from zoning simply because they were located on a Virginia DOT right of way. Board of Supervisors of Fairfax County v. Washington, D.C. SMSA, LP, No. 982627 (Va. Sup. Ct. Nov. 5, 1999), 27 Land Use L. Rep. 171. The above are my picks for the past few months. What are yours? Please send your news to pbuchsbaum@greenbaumlaw.com. Peter A. Buchsbaum is chair of the Section's Land Use Committee and practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey. State & Local Law News home page | Table of Contents