9/10 SAT 8:30 | Land Use Law Update - What's New

Land Use Law Update: What’s New in Land Use Law and Local Regulatory Strategies

Legal updates for planners

PRESENTERS

� Nancy Stroud, Esq., AICP, Lewis Stroud & Deutsch, P.L.

� Marcie Oppenheimer Nolan, Esq., AICP, Becker & Poliakoff, PA

� Johanna M. Lundgren, Esq., AICP, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

� James E. White, Esq., AICP, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

APA FLORIDA CASES

� Carillon Community Residential, Inc. v. Seminole County (July 2, 2010)

� Martin County Conservation Alliance and 1000 Friends of Florida, Inc. v. Martin County, Department of Community Affairs, Martin Island Way, LLC and Island Way, LC, 2010 WL 5072588(Fla. 1st DCA December 10, 2010) (motion for rehearing pending)

APA FLORIDA CASES

Nancy Stroud, Esq., AICP, Lewis Stroud & Deutsch, P.L

Carillon Community Residential Inc. v. Seminole County, So. 3d, 2010 WL 2628692 (Fla. 5th DCA July 2, 2010)

Key Issue: What level of Due Process is required at Quasi Judicial hearing for a petitioner/participants to the proceeding?

� At rezoning hearing the County Commissioners denied adjacent property owners the right to cross-examine witnesses.

� Homeowners Association appealed on a denial of due process claim (14th Amendment)

Carillon Community Residential, Inc. v. Seminole County

� APA Florida interest

� No position on the merits of the County decision to approve particular development

� Interest in advocating for the rights of affected parties to participate fully and meaningfully in the local quasi-judicial process so as to contribute to effective decision making and so as to preserve their due process rights and rights for standing on judicial appeal

� Reference to APA FL Citizen Participation Policy and Citizen Standing


� APA Florida strongly supports citizen access and public input to the planning process and is committed to improving citizen involvement through local planning initiatives and legislative changes to Florida’s growth management framework. APA Florida supports an open and collaborative planning process that includes meaningful citizen participation through reasonable notice, open public records and accessibility to all stages of the planning process, as well as promoting the use of citizen participation best practices at the local level.


� Citizen standing and public participation are fundamental to an effective growth management process. APA Florida supports the rights of citizens to meaningfully participate in the planning process and will oppose proposals to weaken citizen standing.

Carillon Community Residential Inc. v. Seminole County

The Circuit Court and 5th District Court of Appeals upheld the Commission’s decision� “core” of due process is the right to notice and opportunity

to be heard� Court distinguished between Petitioners (participants) and Parties

� Party must be able to “present evidence, cross-examine witnesses, and be informed of all facts upon which the commission acts”

� Participants are entitled to “some measure” of due process� Commission took questions from the participants and asked

them of the parties

Carillon Community Residential Inc. v. Seminole County

TAKE AWAY FOR PLANNERS

� Local ordinances can expressly afford interested parties the right to cross examine

� Notice and Opportunity to be heard are still KEY requirements

Martin County Conservation Alliance v. Martin County

� Key Issue:

Does the judicial use of attorneys’ fees sanctions in this case set a dangerous precedent in the interpretation of the Florida statute, that chills appellate advocacy especially by average citizen, small business or nonprofit organizations?


� Facts of the Case

� Martin County Conservation Alliance and 1000 Friends of Florida appealed comprehensive plan amendments related to development outside urban serviced district and in agricultural area. Given standing in administrative hearing.

� Proceedings.

Lost administrative hearing, appealed to First District Court of Appeals, where court found that the appellants had no appellate standing. (June 21, 2010).


� Court followed decision with another decision (December 14, 2010), finding that the appellants and their counsel should pay attorneys fees of County, DCA and developers because “standing clearly is not present” and appeal was frivolous and without merit. Section 57,105, Florida Statutes. Standing test for administrative proceedings is more liberal than appellate review standard.

� Neither DCA nor the County asked for sanctions.


� Dissent in opinion:� While dissent agrees that Alliance and Friends did not

demonstrate appellate standing, sanctions order is not justified

� Decision “converts Section 57.105 into a fee shifting statute and will create a precedent that will severely chill appellate advocacy.”

� Standing should not depend on the merits of the underlying claim – should not have to win on the merits to establish standing. Appellants’ standing argument based on the evidence in this case had some basis


� Moreover, the precedent being set by this order will unduly discourage participation in the appellate process.

� “Further, such a liberal use of section 57.105 will lead to the intolerable development that only those with deep pockets, who can run the risk of sanctions if they lose, will seek appellate redress. “

� Appellants asked for rehearing and rehearing en banc. APA Florida move to appear as Amicus Curiae in support of the motions. Motions pending.


� APA Florida interest

� No position on the merits of the County decision to amend its plan

� Interest in advocating for the rights of affected parties and especially those less financially able to participate fully and meaningfully in the local decision making and judicial proceedings so as to contribute to effective decision making without fear of financial devastation

� Reference to APA FL Citizen Participation Policy and Citizen Standing

ZONING AND LAND USE

Marcie Oppenheimer Nolan, Esq., AICP, Becker and

Poliakoff, PA

State of Florida v. Catalano and Schermerhorn, (Fla. 2d Dist. App. 2011)

� Key Issues:1) Is a noise control statute which restricts the volume at which a

car stereo can play music when such music is “plainly audible” unconstitutionally vague?

2) Is a noise control statute an unconstitutional content-base restriction on speech?

Mr. Catalano and Mr. Schermerhorn were pulled over by the police in their car for playing music too loud and issued a traffic citation.

State of Florida v. Catalano and Schermerhorn

Section 316.3045, F.S. states,

“(1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio….. So that the sound is:

(a) plainly audible at a distance of 25 feet or more…

(b) louder than necessary…

(3) The provisions…shall not apply..to motor vehicles used for business or political purposes…..”

Mr. Catalano and Mr. Schermerhorn pleased not guilty on the grounds that the section is unconstitutionally vague and overbroad, invites arbitrary enforcement, and impinges on free speech rights.

� Trial Court denied the motion

� Appeal to District Court

� Question certified by DCA as question of great public importance


VAGUENESS

� In reviewing prior cases to determine whether the “Plainly Audible”standard was too vague and overbroad to pass constitutional scrutiny, the court stated whether the “plainly audible” standard is applied in a noise ordinance or used in a traffic statute, the test for constitutionality is the same.

� Court reaffirmed “plainly audible” was a subjective term on its face; thus, the court found it was vague.

CONTENT-BASED OR CONTENT NEUTRAL

� The statute exempts “motor vehicles when used for business or political purposes”

� Here not content neutral



� Review existing noise regulations to ensure enforcement cannot be subjective but objective.� Provide standards for enforcement, i.e. decibel levels,

hours for such levels, etc.

� Review existing sign, noise, lighting or any ordinance where the type and nature of the speech is distinguished and discuss with your attorney.

Palmer Trinity Private School, Inc. v. Village of Palmetto Bay, 31 So. 3rd 260 (Fla. 3rd Dist. App. 2010)

� Key Issues:� Is there ‘right’ to rezone?

� Can the specific use be part of a rezoning application?

Palmer Trinity School sought to rezone 32 acres of land immediately next to the existing school from AU (agricultural zoning) and EU-2 (estate SF zoning) to EU-M (estate modified SF zoning allowing one home per 15,000 square feet).

� At the same time they requested a special exception and non-use variance

Palmer Trinity Private School, Inc. v. Village of

Palmetto Bay

At the hearing the Village DENIED the rezoning based upon the following:

� “the rezoning, if approved, would allow for the physical expansion of the Palmer Trinity School,…and that “Palmer Trinity failed to adequately establish through its traffic studies that its site specific application is compatible, within the proper level of service, and failed to establish that the proposed use would not negatively impact the community.”

� The Village staff zoning analysis stated: “The requested district boundary change to EU-M would be in keeping with the basic intent and purpose of the zoning and land use regulations…The properties surrounding the site are currently zoned EU-M, as a result the rezoning of the AU and EU-2 site to EU-M would make the parcels compatible with the neighboring properties.”

Court found the denial was “reverse spot zoning” and illegal. The applicant had a right to rezone their property consistent with the surrounding zonings.

Palmer Trinity Private School, Inc. v. Village of

Palmetto Bay


� Procedurally separate each application - Village staff did this correctly!

� In each staff report explicitly state the basis for approval and or denial is based solely based upon the established criteria and provide analysis to support and/or deny.

� Speak with Attorney and Manager before the hearing to make sure they are aware that the issues may become intertwined.

� Make sure someone educates the elected officials regarding the applications and the processing of each individual application.

� Control the temptation to allow staff report findings and conclusions to become intertwined.

Arbor Properties v. Lake Jackson Prot. Alliance, 2010 WL 4967715 (Fla. 1st DCA Dec. 8, 2010).

� Request was to change the land use to allow for a 107 acre residential development in Tallahassee/Leon County.

� Conservation Element had polices to restrict/guide development called “special development zones” for Lake Jackson to restrict activities “that impact the quality of the stormwater.”

� Land Use Element created “Lake Protection Zones” and allowed future development if competent scientific evidence [shows] that the development is “located in a closed basin that does not…discharge [rainwater runoff] into the larger Lake Jackson Basin.”

� Land Development Regulations allowed development within Lake Jackson in areas not subject to ““special development zones”

Leon County approved rezoning for the 107 acre parcel to mixed use.

Arbor Properties v. Lake Jackson Prot.

Alliance

Challenge was to invalidate the DO based upon inconsistency with the Comprehensive Plan. Their argument was that a DO cannot be issued in a Special Development Zone because there was no exemption is this specific policy for a closed basin system that did not impact stormwater into Lake Jackson.

DCA found that:

� A DO is considered consistent with a comprehensive plan where the ‘land uses…and other aspects of…[the] order…are compatible with and further the goals, objective, policies, land uses, and densities or intensities of the comprehensive plan.”

� By reviewing the applicable provisions of the Plan as a whole, finding the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the DO is consistent with the Plan.

Arbor Properties v. Lake Jackson Prot.

Alliance


Goals, objectives and policies are to be read together

Make sure there are no apparent conflicts between sections

Coordinate each element so they all work together

Richard Wilson, Plant Explorers, LLC, and Excalibur Fruit

Trees, LLC, v. Palm Beach County

Right to Farm Act

� Adopted June 16, 2000

� Section 823.14(6), F.S.

� “a local government may not adopt any ordinance, regulation rule or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 191.461…”

Richard Wilson, Plant Explorers, LLC, and Excalibur Fruit Trees, LLC, v.

Palm Beach County, (Fla. 4th Dist. App. 2011)

Key Issues:

1) Does Right to Farm Act preempt existing regulations?

2) Are special permitting requirements covered by the Act?

3) Do Home Rule Powers allow for regulation of agriculture?



4th DCA Court held

� Pre-existing ordinances remain in effect

� Whether special permitting requirements “limits” an activity of a bona fide farm operation is a material issue of fact to be determined based upon the particular situation

� Local ordinances may regulate “farming operations”

� even though Chapter 163, F.S. defines “development” to exclude “agricultural uses”, Home Rule powers and Chapter 125, F.S. provide specific authority for adoption of ULDC, not just Chapter 163, F.S.



TAKE AWAY FOR PLANNERS WITH NEW LEGISLATION

� Does the new law apply retroactively?

� Does it preempt areas of law?

� If so, then revise ordinances as needed.

� Home Rule Powers are very broad and allow regulation when not in conflict with a preempted area of law

Vacation Rentals

Chapter 2011-119

Prohibits the adoption of ordinances regulating vacation rentals.

� 509.032(7)(b)A local law, ordinance, or regulation may not restrict the use of vacation rentals, prohibit vacation rentals,or regulate vacation rentals based solely on their classification, use, or occupancy. This paragraph does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011.� Eliminates from the definition section units rented for less than 30

days or one month, whichever is less.

� Vacation Rentals are single family, two-family, and four-plex units now defined as transient public lodging.

Discussion And Questions

LOCALLY UNWANTED LAND USES

Johanna M. Lundgren, Esq., AICP, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

Locally Unwanted Land Uses (LULUs)

�� Locally unwanted land useLocally unwanted land use is a planning term. It is a land use that is useful to society, but objectionable to its neighbors. The acronym is

LULU.LULU.

� Planning seeks to distribute and reduce the harm of LULUs by zoning, environmental laws, community participation, buffer areas, clustering, dispersing and other such devices. Thus, planning tries to protect property and environmental values by finding sites and operatingprocedures that minimize the LULU’s effects.

� LULUs always provide services a community needs, but few people want to live near them because of their externalities, real or perceived.


� The term was coined in 1981 by Rutgers and Princeton University urban planning professor Frank J. Popper in his paper, "Siting LULUs"published in Planning Magazine.

�� LULUsLULUs include facilities that may be socially desirable, obviously needed or legally required but nobody wants in his or her backyard. Such facilities may include adult uses, signs, religious institutions, half-way houses, correctional facilities, homeless shelters, pain clinics, gaming, hazardous waste treatment and disposal facilities, solid waste landfills and incinerators, recycling centers, low-income housing, and wastewater treatment facilities.


Not In My Backyard (NIMBY)

� NIMBY is an acronym for the phrase not in my back yard. The term is used to describe opposition by residents to a proposal for a new development close to them.

� Since the late 1970s, the Not In My Backyard (“NIMBY”) phenomenon has become a challenge for urban planners, policymakers, developers and regulators. NIMBYism characterizes a negative social response to LULUs.

Controversial Land Uses (LULUs)

� hazardous waste treatment and disposal facilities

� recycling centers and transfer stations

� landfills and incinerators

� wastewater treatment plants

� junkyards

� airports

� half-way houses/sober houses/residential treatment facilities

� correctional facilities

� homeless shelters

Controversial Land Uses (LULUs)

� pain clinics/pill mills

� adult arcades/adult internet cafes/gaming

� big boxes/formula retail

� pawn shops

� check cashing/pay day lenders

� package liquor stores

� bars/nightclubs

� group homes

� First Amendment Uses

� Adult � Religious

� Signs

� Tattoo parlors

Zoning Regulations

� Generally, zoning laws will contain a provision which states that uses not listed as allowed are prohibited.

� However, some uses have been given special status due to court decisions or state or federal law.

� Can we deny an application based on community opposition?

� If allowed by zoning, and requirements are met by the applicant, general community opposition is not a valid basis for denial of a land use application.

� Quasi-Judicial Matters

� Constitutionally Protected Uses

� Local governments may be preempted from denying certain uses

Regulating Locally Unwanted Land Uses . . . Generally

� Regulation of most uses through local government zoning and land use authority is subject to rational basis review

� If regulation is not unreasonable, arbitrary or capricious, it will be upheld

� Fairly debatable standard favors the local government decision

� Regulation is presumed constitutional

Rational Basis Standard and Local Government Regulation of Unwanted Land Uses

� Applies to many types of unwanted land uses that are not subject to:

� greater protection under U.S. Constitution (“protected uses”)

� For certain uses, statutory preemption applies

� Pain Management Clinics and “Pill Mill” Pharmacies

� “Internet Cafes” /Internet Sweepstakes Cafes

� Group Homes

� Some other controversial local land uses: Big Box Stores; Payday Lenders and Check Cashing Stores; Nightclubs; Pawn Shops ….

Pain Clinics and “Pain Pharmacies”

� Proliferation of pain clinics and controlled substances overprescription by “pill mills” in Florida is the result of lack of central prescription tracking database

� Pain management clinics are medical offices which offer services to treat pain, primarily through prescription of opioid controlled substances

� Over the past several years, Florida became nation’s epicenter for the illegal diversion of controlled substances. From August 2008 to November 2009, a new pain clinic opened in Broward and Palm Beach counties on average every 3 days.

� Impacts on communities from pain clinics and pain pharmacies: uses are targets for robberies and burglaries, and create secondary effects on surrounding businesses and residents (parking overflow, loitering, litter, crime)

“Pain Pharmacies”


� Local government response: moratoria and regulations

� Legislative response, starting in 2009

� Progressively stronger legislation

� 2011 Legislation: strongest regulations yet

� Restriction on Wholesalers

� Restrict On- site Dispensing

� Enhanced DOH Inspection and enforcement

� Further Regulations of Pharmacies


Options for Local Governments:

� - Effective definitions and amendments to zoning use list

� - Distancing requirements to prevent proliferation and collusion

� - Conditional use / special exception review of pain clinics and pharmacies

Through the Loopholes: From Pain Clinics to Internet Sweepstakes Cafes

� Local governments on the forefront

� The next LULU exploiting legislative loopholes

� Patrons purchase internet time or phone cards, and receive “sweepstakes entries”, and use computers to “reveal” sweepstakes results, then cash in winning entries at front desk (winning cash or merchandise)

� Impacts on community: large amounts of cash on-site and resulting crime, exacerbation of gambling habits in community, parking overflow and loitering affecting nearby businesses

Internet Sweepstakes Cafes/Adult Arcades

� Uses are designed and operated to avoid meeting elements necessary to constitute an illegal lottery. Operators claim that the games are legal promotions or charitable drawings allowed under Chap. 849, F.S.

� Local government strategies:

- Moratoria

- Prohibition of defined “simulated gambling devices”, crafted to ensure consistency with state law

Well-funded operators have challenged

local ordinances

Group Homes

� Group residences: Assisted Living Facilities, Halfway Houses

� Chapter 419, F.S. provides for the establishment of community residential homes (CRHs). Under Section 419.001(2), F.S., a community residential home with six or fewer residents “shall be deemed a single-family unit and a non-commercial, residential use for the purpose of local laws and ordinances.” CRHs with 7 to 14 unrelated residents subject to zoning regulations for other multifamily residential uses in the zoning district.

� Some group residences are not subject to Chap. 419, F.S., but may be protected under federal and state law based on status of occupants (i.e. “sober houses”, as drug addicts are considered protected by FHA)

� Federal Fair Housing Act and Fair Housing Amendments, and Florida Fair Housing Act

Other LULUs …

� “Rational Basis” regulations

� Distancing and supplemental standards

Example Regulations

Goals: Address Problem Use Proliferation; Foster Redevelopment

Sec. 110-190. Uses subject to minimum separation distances.

(A) The following uses shall be separated from similar existing uses, or similar approved but unbuilt uses, by the minimum distances specified below, measured from property line to property line unless otherwise indicated. Sec. 700-140 provides more detailed information as to how minimum distance separations must be measured.

(1) Check cashing stores: two thousand five hundred (2,500) feet.

(2) Pawn shops: two thousand five hundred (2,500) feet.

(3) Thrift shops: two thousand five hundred (2,500) feet.

City of Dania Beach, Florida

Clear and Precise Regulations

The following uses if first approved as a conditional use . . . :

• Check cashing/pay day advance stores.

Miramar, Florida

The specific conditions set forth below shall be applied to each proposed use during site development plan review . . . .

• Check cashing stores. No check cashing store shall be permitted to operate within one thousand five hundred (1,500) feet of another check cashing store.

• Convenience stores. No convenience store shall be permitted tooperate within one thousand five hundred (1,500) feet of anotherconvenience store.

• Thrift shops. No thrift shop shall be permitted to operate within two thousand five hundred (2,500) feet of another thrift shop.

Pembroke Park, Florida

Development and Use Standards for Big Box LULUs

� Supplemental development standards target large retail establishments (“big box” development)

� Definition with trigger square footage (i.e. 50,000 or 75,000 s.f. gross retail area)

� Limit big box retail to most intense commercial districts

� Architectural design and landscaping standards apply

General Principles

� A moratorium offers needed time to evaluate the situation and prepare a regulatory strategy, but must be limited

� Consult with your local government’s legal counsel early in the process of considering new regulations

� Carefully evaluate and draft regulations, and beware of outright bans

� Make sure all required notice and hearing procedures are followed

CONSTITUTIONAL ISSUES

James E. White, Esq., AICP, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.

First Amendment Land Uses

The First Amendment, U.S. Constitution

� Applies to the states (and local governments)

First Amendment

Congress shall make no law respecting an establishment of Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridgingreligion, or prohibiting the free exercise thereof; or abridgingthe freedom of speech, or of the press; or the right of the the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government people peaceably to assemble, and to petition the Government for a redress of grievances.for a redress of grievances.

First Amendment In Land Use(Key Components)

� Regulation of Religious Assemblies & Uses

� Free Exercise of Religion

� No Establishment of Religion

� Freedom of Assembly

� Regulation of Signs & Newsracks

� Freedom of Speech and the Press

� Regulation of Adult/Sexually Oriented Uses

� Freedom of Speech

� Parades & Demonstrations in Public Forum

� Freedom of Speech

� Freedom of Assembly

Regulation of First Amendment-Protected Land Uses

� Enhanced scrutiny

� Not presumed constitutional

� No greater regulation than necessary to advance a substantial governmental interest

� Need clear, detailed statement of intent (and record) to establish the governmental interest, and that this regulation advances the interest

� Justifying regulation of the community as a whole - not tailored to individual circumstances

See Ward v. Rock Against Racism, 491 U.S. 781

(1989); City of Renton v. Playtime Theaters, Inc., 475 U.S. 1 (1986) (record for adult use regulation).

Underlying Principles for Adopting Regulations

� Clear drafting to avoid ambiguity and vagueness

� Non-discretionary standards to the greatest extent possible to avoid the danger of selective enforcement

� Tailor regulation to the problem being addressed, to avoid overbroad regulation

� Note clear deadlines

� Provide clear path to judicial relief

See, FW/PBS, Inc. v. City of Dallas, 110 S. Ct. 596 (1990).

First Amendment Key Principles

�� Content neutralityContent neutrality is the touchstone by which government regulation of expression is judged

––““The First Amendment generally prevents government from The First Amendment generally prevents government from

proscribing speech [because] of disapproval of the ideas proscribing speech [because] of disapproval of the ideas

expressed. Contentexpressed. Content--based regulations are presumptively based regulations are presumptively

invalid.invalid.

See, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

First Amendment Key Principles

� Government regulation is a lawful content-neutral ““time, place, and time, place, and mannermanner”” restriction on otherwise First Amendment-protected expression, if:

1. Regulation is within power of government

2. Furthers an important government interest

3. The government interest is unrelated to the suppression of speech

4. The incidental restrictions on free speech are no greater than necessary to further the asserted government interest

See, United States v. O’Brien, 391 U.S. 367 (1968).

Adult Use Regulations

Can laws be passed to prohibit adult uses from coming to the community?

NO!

� The U.S. Supreme Court has stated that there is a presumption of First Amendment protection for all establishments that deal in “speech related” materials or activities.

� As long as the business is not engaged in any illegal activities, such as the distribution of obscenity or the promotion of prostitution, then they must be allowed to operate.

Adult Use Regulations

“indecent” vs. “obscene” (illegal)

� “Obscenity” lacks First Amendment protection and may be suppressed by the government

� Obscenity is a legal term of art with an “objective” standard

� In Florida, obscenity is regulated by the state

� Legal definition of obscenity has changed over time

� Current definition is provided by the Miller test

Therefore if engaged in legal “speech related” activities or materials, you CAN NOTCAN NOT pass legislation prohibiting them from coming into your community.

Regulation of Adult Uses (Sexually Oriented Businesses)

How can local governments regulate adult uses?

� The Supreme Court has held that content neutral regulations are considered to be incidental burdensincidental burdens on speech and may may

be regulated in time, place, and manner.be regulated in time, place, and manner.

There are two primary ways to regulate adult uses:

1. Licensing

2. Zoning

Zoning Regulations

� Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).

(Upholds Detroit adult use zoning “dispersal” ordinance)

� City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

(Upholds adult use zoning separation ordinance)

� Established Several Key Elements:

� Concern for quality of life was valid governmental interest

� City may rely on relevant studies from other communities in order to justify ordinance

� City may disperse facilities or concentrate them

� “Secondary Effects Doctrine”

� Available avenues of communication (sites/acreage)

Zoning Regulations

� To be reasonable, time, place, and manner restriction, ordinanceinfringing on First Amendment activities not only must serve significant state interests but also must leave open adequate alternative avenues of communication

Permissible location restrictions on adult uses may include:

1. Limiting the location of adult uses to certain zoning districts.

2. Requiring spacing from other adult uses.

3. Distance requirements from residential or civic uses, such as parks and schools.

4. Distance requirements from religious institutions.

Zoning Regulations

� City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).

(How much evidence of negative “secondary effects” is necessary to sustain an ordinance?)

� The Supreme Court has acknowledged that businesses that offer sexual materials and services create certain types of negative side effects, which the Court terms ““adverse secondary effectsadverse secondary effects””

� Communities have a right to regulate adult uses in order to minimize or eliminate the adverse secondary effects associated with such uses.

Zoning Regulations

Negative Secondary Effects

� Ambient crime generation

� Crime (Rape, Sexual Assault, Drugs)

� Prostitution

� Blight (People and business fleeing the community)

� Diminution of surrounding property values (Residential and Commercial)

� Health Concerns (STD’s)

These relate to statistically-supported increases in crime and nuisances and are important factors in establishing the legal justification for regulating adult uses

Zoning Regulations

� Evidence of negative secondary effects must be must be

placed into the legislative recordplaced into the legislative record and must be based on relevant studies

Legislators must review studies

May rely on studies conducted by other communitiesif reasonably believed to be relevant

Licensing

Regulating Adult Uses Outside the Scope of Zoning

� Government has greater discretion to regulate the uses related to alcoholic beverage licensees – Business regulations

� Can require separation of alcohol from nudity

� Licensing regulations can address all manner of issues, such as:

� Criminal backgrounds of those involved in the use

� Public health considerations, arising from the materials used in the construction and furnishings, and requirements for cleaning the establishment

� Mandatory distance between dancer and patron

Licensing

� It is important for licensing regulations to provide clear and explicit standards and ready means for court review.

� These requirements are necessary because they involve obtaining governmental approval prior to engaging in “protected speech” and, thus, are typically considered ““prior restraintprior restraint”” regulations.

Violation of Constitutional Rights

� Financial costs

� Direct and indirect costs of litigation

� Attorneys’ fees and damages

� Code is struck down

� Plaintiffs and/or court determine location of adult use

� Court-ordered amendments to City’s code

Adult Use RegulationsSummary of Key Principles

� Government may regulate the time, place, and manner of First Amendment-protected adult uses

� Government may not completely suppress or “zone out” adult uses from its jurisdiction

� Conditional uses or special exceptions do not count towards required constitutional minimums

� Zoning code must permit “adequate alternative avenues” “by right”

Regulation of Religious Uses

� The First Amendment to the U.S. Constitution and state counterparts protect an individual's right to the free exercise of religion and prevent governments from establishing a particular religion or endorsing religious exercise.

� Federal and state laws, including the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Religious Freedom of Restoration Act (RFRA), create statutory causes of actions against governmental entities for violations of religious rights.

Regulation of Religious Uses

The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..."

� The Establishment Clause generally requires government neutrality toward religion. It prohibits laws that advance religion or express favoritism toward religion or that foster "an excessive entanglement" with religion.

� The Free Exercise Clause, on the other hand, prohibits governmental entities from substantially burdening the free exercise of religion, unless the government can establish that the burden is "the least restrictive means" of furthering a "compelling governmental interest" such as public health or safety.

RLUIPA = Religious Land Use and

Institutionalized Persons Act of 2000

� 42 U.S.C. §§ 2000cc, et seq.

� The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. 2000 is a civil rights law that was enacted by Congress in 2000.

� Protects individuals and religious institutions from discriminatory and unduly burdensome land use regulations.

� RLUIPA imposes federal standards that can expose local governments to serious liability should they run afoul of these standards.

RLUIPA

� That portion of RLUIPA that regulates the protection of land use as religious exercise states:

� “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution:

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling

governmental interest.”

Who And What Are Covered By RLUIPA?

� RLUIPA protects the religious exercise of “persons,” defined to include religious assemblies and institutions in addition to individuals.

� RLUIPA has been used, for example, to protect houses of worship, individuals holding prayer meetings in their homes, religious schools, religious retreat centers, faith-based homeless shelters, soup kitchens, group homes, and other social services.

RLUIPA: Substantial Burden

� Protection against substantial burdens on religious exercise: Section 2(a) of RLUIPA prohibits the implementation of any land use regulation that imposes a “substantial burden” on the religious exercise of a person or institution except where justified by a “compelling governmental interest” that the government pursues in the least restrictive way possible.

� Applies where the substantial burden is imposed in the implementationof land use regulation with formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses

RLUIPA: Definitions

� “Religious exercise” is defined by RLUIPA as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”Religious exercise also includes “the use, building or conversion of real property for the purpose of religious exercise.”

� “Land use regulation” is defined as “a zoning or landmarking law, of the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”


� The substantial burden inquiry is fact intensive and specific

� Generally, when a local government takes one of the following types of actions, it may constitute a substantial burden on religious exercise under RLUIPA:

� effectively barring the use of a particular property for religious activity;

� imposing a significantly great restriction on religious use of a property; or

� creating significant delay, uncertainty, or expense in constructing or expanding a place of worship, religious school, or other religious facility.


� Courts have found substantial burdens on religious exercise in:

� denial of a church construction permit due to onerous off-street parking requirements imposed by a city

� permit condition requiring a religious retreat center to operate as a bed-and-breakfast

� denial of construction of a parish center

� denial of expansion plans for a religious school, and

� denial of the ability to convert a building’s storage space to religious use


� Courts have found no substantial burden violation when a church was denied:

� the amount of off-street parking it would have preferred when there were reasonable parking alternatives available

� when a religious high school was denied the ability to operate acommercial fitness center and dance studio out of a portion of its building

� when a church was barred from demolishing an adjacent landmarked building it had purchased in order to construct a family life center, as there was other space on the church’s campus that would be suitable


� Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004): Substantial burden is more than an inconvenience to religious exercise

� Williams Island Synagogue, Inc. v. City of Aventura, 358 F. Supp.2d 1207 (S.D. Fla. 2005): Denial of conditional use permit for synagogue was not a substantial burden.

� Christian Romany Church Ministries, Inc. v. Broward County, 2008 WL 942565 (Fla. 4th DCA 2008) (under RLUIPA and Florida RFRA): If nothing unique or special about this particular church building, and nothing about the location that was unique or integral to the conduct of the religion, county can condemn and force the relocation of a church.

� Hollywood Comm’y Synagogue, Inc. v. City of Hollywood, 430 F. Supp.2d 1296 (S.D. Fla. 2006) (under RLUIPA and Florida RFRA): No substantial burden in city’s order to relocate synagogue from operating in a single family house.


� Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005): Requirement for a special exception to operate a religious organization in a rabbi’s home was not a substantial burden.

� Westgate Tabernacle, Inc. v. Palm Beach County, 14 So. 3d 1027 (Fla. 4th DCA 2009): Requirement to obtain conditional use permit to operate a homeless shelter as part of a church was not a substantial burden under RLUIPA or Florida RFRA (church had failed to apply and thus failed to exhaust its administrative remedies, and could have obtained one with renovations).

� First Vagabonds Church of God v. City of Orlando, Fla., 610 F.3d 1274 (11th Cir. 2010) (ordinance requiring anyone conducting a “large group feeding” within downtown park district to obtain permit, and limiting the number of permits a person would be allowed to obtain during a year, not violative of Florida RFRA) vacated for rehearing en banc 616 F.3d 1229.

RLUIPA: Equal Terms

� Protection against unequal treatment for religious assemblies and institutions: Section 2(b)(1) of RLUIPA provides that religious assemblies and institutions must be treated at least as well as nonreligious assemblies and institutions.

� Protection against religious or denominational discrimination: Section 2(b)(2) of RLUIPA prohibits discrimination “against any assembly or institution on the basis of religion or religious denomination.”

RLUIPA: Equal Terms

This section extends to:

� Regulations that on their face treat religious assemblies or institutions on less than equal terms

� Regulations that may be facially neutral, but as applied treat religious uses on less than equal terms than nonreligious uses.

� Determining if a religious use is treated on “less than equal terms”than a secular use requires a comparison of how the two types ofentities are treated in a zoning code.

RLUIPA: Equal Terms

� Courts have found the equal terms section violated in situations where:

� places of worship were prohibited but private clubs were permitted

� religious assemblies were prohibited but auditoriums, assembly halls, community centers, senior citizen centers, civic clubs, day care centers, and other assemblies were permitted

� places of worship were prohibited but community centers, fraternal associations, and political clubs were permitted.

RLUIPA: Equal Terms

� Local governments can avoid violating by ensuring that their regulations focus on external factors such as:

� size

� impact on traffic and parking

� intensity of use

� hours of operation

� noise

� similar objective criteria in regulating land uses

� Do not focus on the content of the speech and assembly activities being regulated.

RLUIPA: Equal Terms

� Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir. 2006): Requirement for nonagricultural,nonresidential uses, to be separated by at least 1,000 feet fromagricultural and residential uses was not a “gerrymandering” equal terms violation. Regulation applied to all uses equally, unless a variance or rezoning was obtained, and criteria for relief were neutral and were neutrally applied.

� Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005): Requirement of permit to conduct religious services two to three times a week in rabbi’s home, as implemented by code enforcement order, violated equal terms. Groups that met in homes with similar frequency, such as Cub Scouts, family gatherings, and other assemblies without a religious purpose, were not required to obtain a permit.

RLUIPA: Equal Terms

� Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004): Zoning code allowed private social clubs to locate on first floor downtown, but required religion to locate above first floor held to be a violation of equal terms. Town’s interest in retail synergy underlying the regulation did not justify different treatment, because synagogue was no less pedestrian-friendly than private club. Private clubs and places of worship were similar uses required to be treated similarly.

� Williams Island Synagogue, Inc. v. City of Aventura, 358 F. Supp.2d 1207 (S.D. Fla. 2005): Requirement that synagogue obtain a conditional use permit before moving into a residential zoning district, while the current use of the facility as a condo building’s accessory party room did not require such a permit, did not violate equal terms. City not required to treat religious uses identically with non-religious uses.

RLUIPA-Prohibition Against Total Exclusion

� Protection against total exclusion of religious assemblies: Section 2(b)(3)(A) of RLUIPA provides that governments must not totally exclude religious assemblies from a jurisdiction.

RLUIPA-Zoning Regulations

� RLUIPA is not a blanket exemption from zoning laws

� As a general matter, religious uses must apply for the same permits, follow the same requirements, and go through the same land-use processes as other uses.

Define and Regulate “Place of Public Assembly”

� Place of public assembly shall mean any area where individuals assemble, whether publicly or privately owned and maintained. Includes, but is not limited to, public assembly buildings such as auditoriums, fraternal lodges, community centers, clubhouses, and theaters; and places of worship or other facilities that are used for prayer and assembly by persons of similar beliefs.

Local Governments Must Review Their Regulations

� Analyze Code of Ordinances

� Address Community and Planning Concerns

� Assure the minimum provision for the use in the community

� Assure regulations do not unduly limit the opportunity for religious uses to locate within the community

� Do not single out religious uses for worse treatment than other similar non-religious uses

Local Governments Must Review Their Regulations

� Assure clear, unambiguous and non-discretionary regulations

� Review and evaluate the potential for inadvertent discrimination in review process and development standards

� What works today may be invalid next year-check for the latest updates in the law

� Seek expert assistance in reviewing and drafting regulations

Regulation of Tattoo Parlors

� A common concern expressed by local governments when drafting zoning regulations that preclude or limit tattoo parlors is the health and safety of the community, and the belief that the area may be blighted by the presence of such establishments.

� Local Governments must be mindful of conflicting case law discussing whether tattooing is expressive conduct, which could afford First Amendment protection to the use.


� A regulation of purely expressive activity (spoken/written) is entitled to full First Amendment protection and the City’s regulation is constitutional only if it is a reasonable time, place and manner restriction on protected speech.

See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)


� A regulation of “pure speech” is a reasonable time, place manner restriction if:

� It is justified without reference to the content of the message;

� It is narrowly tailored to serve a significant governmental interest; and

� It leaves open ample alternative channels for communication of information.

See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)


� The U.S. Supreme Court case Texas v. Johnson sets out the test for determining whether symbolic speech – that is, conduct with expressive elements – is entitled to First Amendment Protection.

� Expressive conduct is only entitled to First Amendment protection if:

� The actor intends to convey a particularized message; and

� There exists a great likelihood that the message would be understood by those who viewed it.


� Expressive Conduct Regulation

� A regulation of expressive conduct is justified if the regulation is within the constitutional power of the government;

� It furthers an important or substantial government interest; � The interest is unrelated to the suppression of free expression; and � Any incidental restriction on alleged First Amendment freedoms is

no greater than necessary to further the important interest.

See U.S. v. O’Brien, 391 U.S. 367, 376 (1968)


Pre Hermosa Beach Tattoo Jurisprudence

Hold Fast Tattoo v. City of North Chicago, 580 F. Supp. 2d 656,

659-61 (N.D. Ill. 2008)

� Held that act of tattooing fails first prong of Johnson test (particularized message) because The very nature of tattooing is to custom tailor a “different or unique” message for each customer.


Anderson v. City of Hermosa Beach, 621 F.3d 1051

(9th Cir. 2010)

� Court held that tattooing was purely expressive activity, more akin to writing, than just conduct potentially expressive of an idea. As such, it was entitled to full First Amendment protection.

� The Court found that tattooing was a process like writing words or drawing a picture, except that it was done on a person’s skin, and, as with writing or painting, the tattooing process was inextricably intertwined with the purely expressive product.


Anderson v City of Hermosa Beach

� The sale or business of tattooing was entitled to full constitutional protection, and the City’s regulation would be constitutional only if it was a reasonable “time, place, or manner” restriction on protected speech.

� Plaintiff did not dispute that the City had a significant interest in regulating tattooing because of the health and safety concerns

� Argued the regulation was substantially broader than needed because the interests could be met through sanitary and sterilization requirements

� Court held the ban “completely foreclosed” a venerable and unique means of communication and accordingly, the ban failed the time, place or manner analysis.

Discussion And Questions

9/10 SAT 8:30 | Land Use Law Update - What's New

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