RECENT DEVELOPMENTS

By Peter A. Buchsbaum

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

The usual potpourri of cases occupies this month’s column.

From Section member Patrick B. McCauley of Southfield, Michigan, comes the following involving a township he represents:

Charter Township of Van Buren v. Garter Belt, Inc. The Michigan Court of Appeals has sustained a preliminary injunction enforcing Van Buren Township’s ordinance prohibiting nudity at liquor-licensed establishments. Defendant Garter Belt, doing business as Legg’s Lounge (love these titles), rejected a number of attacks based on Michigan law and federal constitutional law. It first held that the locality had broad power under Michigan law to prohibit topless activity or nudity on licensed premises. Thus, it sustained home rule in the regulation of topless dancing at liquor serving establishments. As a matter of federal constitutional law, the court found, following earlier decisions, that the township only had to show a rational basis for its ban on the intersection of liquor and nudity. Further, and critically, the municipality did not have to show that it had conducted any specific study of adverse secondary impacts on property values or crime rates from topless dancing at liquor establishments. Instead, the township could rely on experiences in other communities. An affidavit from an expert contesting such adverse effects did not even have to be answered in light of general experience with such dancing. Finally, the court found that Legg’s had acquired no constitutionally protected vested right to the conduct of topless dancing before adoption of the ordinance in question. The result: no more topless dancing in Van Buren Township. Charter Township of Van Buren v. Garter Belt, Inc., No. 238571, 2003 WL 22216716 (Mich. Ct. App. Sept. 25, 2003).

Offensive Signs—Removal—§ 1983 Claim. David Eckles claimed that his house in Corydon, Iowa, had its assessment quintupled in four years because of his perceived homosexuality. In 2000, he posted a number of signs on his property criticizing city and state officials because of the assessment. For his troubles, he received a nuisance abatement order from the city requiring him to remove the signs and letters from the county tax board’s attorney threatening to advise county officials to take legal action against him. Following dismissal of the suit by the district court, the Eighth Circuit reversed. It found that Eckles had suffered sufficient injury from the abatement notice that caused a concrete threat of injury. In contrast, the letter from the attorneys for the board of review constituted no such threat since the tax board was not in the law enforcement business. One judge disagreed with this conclusion and indicated that at least some of the correspondence from the law firm did not constitute a mere bluff. In any event, despite the apparent justification for Eckles’ assessment—he admitted in an interview that he might be able to sell his house for the assessed price or more—his suit against the warnings about the signs will apparently go to trial. Eckles v. City of Corydon, 341 F.3d 762 (8th Cir. 2003), digested in 31 Land Use L. Rep. 154 (Sept. 24, 2003).

Illegal Permit—Extension of Appeal Period—Lack of Notice. Grants or denials of building permits usually must be appealed within a short time period. But neighbors never get notice of permit grants. They only find out about the new construction when they actually see it. What should a court do in dealing with a complaint with a neighbor who has acted promptly when he found out about an unlawfully issued permit, but the permit appeal period has expired?

The answer from the Maine Supreme Court is to extend the appeal period. In a case involving the resort town of Rangeley, Maine, the town unlawfully granted a permit to demolish a nonconforming cottage and replace it with a new structure, which was too close to Rangeley Lake. The permit was granted on November 3; the plaintiff neighbors had closed up their next door cottage for the winter on October 18. When they returned the following July, they saw the foundation for the new cottage and immediately complained to the town, whose governing body ultimately dismissed their appeal because it had not been filed within thirty days of the issuance of the permit. In these circumstances, the court found that the town’s actions effectively precluded the neighbors from using the appeal period. The court also held that the neighbors had been diligent in making their complaints known to the local code enforcement officer who had given them no advice about how to file an appeal. Under the circumstances, the late-filed appeal was allowed. It was also clear from the court’s reference to “the illegal permit,” that the larger, new nonconforming structure will have to be torn down. Brackett v. Town of Rangeley, 831 A.2d 422 (Me. 2003), digested in 31 Land Use L. Rep. 149 (Sept. 10, 2003).

Elections—Campaign Practices—References to Opponents. The Ninth Circuit, which recently sustained California’s touch screen voting systems, also upheld an interesting Seattle ordinance governing voter pamphlet statements. These pamphlets are prescribed by state law as a voter education resource. Under state law and local ordinance, they are limited to a discussion of the candidate’s qualifications. References to political opponents are barred.

The court found that the voter pamphlets prescribed by law are limited public fora. It found that Seattle’s limiting the pamphlet to discussion of one’s own qualifications fit the purpose of the candidate statement that was only to introduce candidates to the voters and provide brief biographical information. The court further held that the limitation of content did not amount to censorship because there were substantial alternative forums for wide open campaigning. Cogswell v. Seattle, 347 F.3d 809 (9th Cir. 2003). The case sustaining the touch-screen voting system, despite the fact that it lacked the paper trail to allow for voter verification, is Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003).

Res Judicata—Collateral Estoppel—Takings Claims. This is a case in which a takings plaintiff won a battle but lost the war. Evandro Santini’s plans for development of homes in Connecticut were, allegedly, effectively thwarted when the Connecticut Hazardous Waste Management Service announced that his site was one of three under consideration for location of a low-level radioactive waste disposal facility. Although the court found that the claim was cognizable in federal court, it nonetheless dismissed the suit on the merits. Santini had alleged, in a parallel state court action, that his property had been taken without compensation. When he sued seeking compensation under the federal constitution, he was met with arguments that under the Rooker-Feldman Doctrine, and under principles of collateral estoppel, he could not raise issues in federal court whose facts had essentially been litigated in the state court action.

In response, the Second Circuit stated that Santini had only raised a state law takings claim initially in state court because under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), his federal takings claim did not ripen until he had been denied just compensation in a state court. The panel then held that a takings plaintiff who involuntarily litigates a takings claim in state court under Williamson may reserve the federal claims for later determination by a federal court. In allowing this reservation procedure, the Second Circuit departed from the holdings of other circuits that have not allowed relitigation of the facts regarding a federal takings claim when those facts essentially are identical to the facts concerning a state takings claim.

Santini lost on the merits, however. The Second Circuit found that the mere announcement of potential use of the site for radioactive waste did not take the property, even if it substantially interfered with Santini’s efforts to market his development. Accordingly, while the plaintiff won his day in court, he lost his case. Santini v. Connecticut Hazardous Waste Management Service, 342 F.3d 118 (2d Cir. 2003).

And that’s it for this quarter.