Articles Posted in Zoning, Planning & Land Use

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After plaintiff was arrested for failing to confine his leafleting to an area designated for protest activities, as set forth in a protocol formulated by Baltimore's legal department in 2004, he filed suit challenging the constitutionality of the protocol. The Fourth Circuit addressed a challenge to the same protocol previously, Ross v. Early, 746 F.3d 546 (4th Cir. 2014), where the court affirmed the district court's decision to uphold the protocol. In this case, the district court dismissed the complaint because the court had already considered the constitutional claim in Ross. The court vacated, holding that, in Ross, the parties entered into a stipulation that dictated the level of constitutional scrutiny, but the parties to the instant case did not. Furthermore, the district court in the instant case did not consider an intervening relevant Supreme Court decision, McCullen v. Coakley, 134 S. Ct. 2518 (2014), and did not have the benefit of another, Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Accordingly, the court remanded for further proceedings. View "Lucero v. Early" on Justia Law

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The Fourth Circuit affirmed the district court's dismissal of a suit challenging Rockville's zoning ordinance that prohibited the construction of self-storage facilities within 250 feet of property on which a public school is located. Plaintiffs argued that the enactment amounted to a denial of their due process and equal protection rights under the Fourteenth Amendment. The court held that Siena did not have a constitutionally protected property interest in using its property to develop a storage facility. The court explained that the very nature of Siena's conditional site plan approval defeated any claim that Siena had a nondiscretionary entitlement to a building permit. Because Siena never satisfied the conditions of obtaining a requisite site plan approval, it was not eligible for a building permit. Even if Siena had a protected property interest here, the enactment of the zoning text amendment would still fall short of a substantive due process violation. In this case, the enactment represented nothing more than the ordinary exercise of a state's residual police power in land use and zoning, in which the state has long maintained a primary and sovereign interest. The court rejected Siena's remaining claims, including the Fourteenth Amendment equal protection claim, and affirmed the judgment in all respects. View "Siena Corp. v. Mayor and City Council of Rockville" on Justia Law

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North Carolina filed suit against Alcoa, seeking a declaratory judgment that North Carolina owns a 45-mile segment of the riverbed of the Yadkin River in North Carolina. The district court ruled as a matter of law that Alcoa successfully proved its title to 99% of the relevant segment under North Carolina's Marketable Title Act, N.C. Gen. Stat. 146-79, and to the remaining 1% under the doctrine of adverse possession. The court concluded that the district court did not clearly err in its factual finding that the Yadkin River was not navigable at statehood and did not err in concluding, as a matter of law, that Alcoa has good title to the riverbed. Accordingly, the court affirmed the judgment. View "North Carolina v. Alcoa Power Generating, Inc." on Justia Law

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Plaintiffs filed suit against the City, alleging that the City, acting through it's Board of Zoning Appeals (BZA), violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq., by denying plaintiffs' request for a variance to permit a certain property to be used as a church facility. The district court dismissed the complaint with prejudice. The court concluded that plaintiffs failed to state a claim that the BZA’s decision imposed a substantial burden on plaintiffs’ right of religious exercise. The court also concluded that the district court did not abuse its discretion in denying plaintiffs’ request to amend their complaint, because any such amendment would have been futile. Accordingly, the court affirmed the judgment. View "Andon, LLC v. The City of Newport News, VA" on Justia Law

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T-Mobile filed suit under the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B), challenging the Board's denial of T-Mobile's application for permits to build two telecommunications towers in Loudoun County - one disguised as a bell tower and one disguised as a silo on a farm. The district court concluded that the Board improperly denied T-Mobile's application for the silo tower and affirmed the Board's decision denying permits for the bell tower. The court concluded that the Board's decision to deny T-Mobile's Bell Tower Site application was supported by substantial evidence; did not have the effect of prohibiting the provision of personal wireless services in view of the possibility of other alternatives; and was not made on the basis of health concerns about radio frequency emissions. In regards to the Silo Site, the court concluded that while the aesthetic concerns that the Board gave for denying T-Mobile's application were supported by substantial evidence, its decision to base the denial of T-Mobile's application on improper environmental concerns about radio frequency emissions was prohibited by the Act. Accordingly, the court affirmed the judgment of the district court.View "T-Mobile Northeast LLC v. The Loudoun Cty. Bd." on Justia Law

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Plaintiff filed suit challenging his arrests for refusing to obey Officer Early's repeated orders to confine his leafleting to the area designated for protest activities outside the First Mariner Arena in Baltimore. The designated protest area was defined by a written policy of the City and the BCPD. The court held that the policy was facially valid under the First Amendment as a reasonable time, place, and manner restriction. The court found that the district court committed no reversible error as to plaintiff's remaining claims. Accordingly, the court affirmed the district court's grant of summary judgment in favor of defendants. View "Ross v. Early" on Justia Law

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This case concerned efforts by the Town of Nags Head, North Carolina, to declare beachfront properties that encroach onto "public trust lands" a nuisance, and regulate them accordingly. In the related appeal of Sansotta v. Town of Nags Head, the district court adjudicated the claims but concluded that it was inappropriate for a "federal court to intervene in such delicate state-law matters," and abstained from decision under Burford v. Sun Oil Co. The court reversed the district court's decision to abstain in this case where resolving the claims in this case was not sufficiently difficult or disruptive of that policy to free the district court from its "unflagging obligation to exercise its jurisdiction." Accordingly, the court remanded for further proceedings. View "Town of Nags Head v. Toloczko" on Justia Law

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Plaintiffs filed suit against the Town after the Town declared plaintiffs' cottages to be in violation of its nuisance ordinance. The cottages were considered nuisances as a result of storm or erosion damage. The court affirmed the district court's grant of summary judgment on plaintiffs' procedural due process claims because plaintiffs' procedural due process rights were not violated where the Town never deprived plaintiffs of any property interest; affirmed the grant of summary judgment on plaintiffs' equal protection claims because plaintiffs' equal protection rights were not violated where the Town had a rational basis for its decision to declare plaintiffs' cottages nuisances under the Town's ordinance; and remanded the takings claims based on the court's conclusion that a state and its political subdivisions waived the state-litigation requirement by removing a case to federal court. View "Sansotta v. Town of Nags Head" on Justia Law

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SCV filed suit against the City and its officials alleging that Lexington City Code section 420-205(C) (the "Ordinance), which bans any private access to City-owned flag standards, contravenes the SCV's First Amendment rights and breached a consent decree resolving an earlier lawsuit between SCV and the City. The court concluded there was no legal support for requiring the City to relinquish its control over the flag standards because they are not a traditional public forum; inasmuch as the Ordinance was lawfully enacted to close a designated public forum, the court affirmed the dismissal of the SCV's free speech claim; in regards to the civil contempt claim relating to the Consent Decree, the court agreed with the district court's conclusion that, because there was no constitutional violation posed by the Ordinance, there could be no violation of the Decree; and, because the flag standards are no longer given over to private expression, their use is not governed by the Decree. Accordingly, the court affirmed the judgment of the district court. View "Sons of Confederate Veterans v. City of Lexington, VA" on Justia Law

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Plaintiff, seeking to offer services as a psychic and spiritual counsel in the County of Chesterfield, challenged the application of regulations enacted by the County affecting fortune tellers. The County regulated fortune tellers in four ways, one of which was applicable to all those operating a business in the County, with the others more specific to fortune tellers. The district court considered and rejected plaintiff's claims and plaintiff subsequently appealed. The court held that the First Amendment Free Speech Clause afforded some degree of protection to plaintiff's activities where the County could not establish either premise of its argument that fortune telling was inherently deceptive speech outside the scope of the First Amendment. However, the County's regulations did not abridge plaintiff's First Amendment freedom of speech where the County's regulation of plaintiff's activities fell squarely within the scope of the professional speech doctrine. The court agreed with the district court's conclusion that granting summary judgment to the County on plaintiff's constitutional and statutory religion claims was proper where plaintiff's beliefs comprised a way of life, and not a religious exercise. Finally, plaintiff's Equal Protection argument failed where the court, applying rational basis review, held that the County's regulatory scheme was rationally related to a legitimate government interest. Accordingly, the court affirmed the judgment. View "Moore-King v. County of Chesterfield, VA" on Justia Law