Zoning

Second Circuit follows HUD regulation requiring plaintiffs in disparate impact cases to prove a less discriminatory way to achieve the defendant’s legitimate interest

/ Antidiscrimination Law, Fair Housing Act, Transactions, Zoning

In MHANY Mgmt., Inc. v. County of Nassau, 2016 U.S. App. LEXIS 5441 (2d Cir. 2016), the Second Circuit adopted the burdens of proof for disparate impact claims under the Fair Housing Act spelled in the regulations of the U.S. Department of Housing and Urban Development. Those rules place the burden on the plaintiff to prove a discriminatory effect either by showing a disparate impact on a protected group or a segregative effect. If that can be shown, the burden shifts to the defendant to show a “substantial, legitimate, nondiscriminatory interest” that justifies the discriminatory effect. At that point, the HUD regulations, now adopted and approved by the Second Circuit, put the burden of proof on the plaintiff to show that the “substantial, legitimate, nondiscriminatory interest” of the defendant “could be served by another practice that has a less discriminatory effect.” 24 C.F.R. § 100.500(c)(3). The Second Circuit, and some other Circuits, …

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Local sex offender law violates state regulatory provisions

/ Homelessness, Restraints on Alienation, Zoning

Like other cities, the City of Lynn in Massachusetts sought to regulate where sex offenders live. It prohibited certain sex offenders from living within 1,000 feet of a school or park and defined “school” to include all public, private, and church schools. The effect of the ordinance was to prevent sex offenders from spending a night in ninety-five percent of the city, including in a shelter or half-way house designated for sex offenders. The Supreme Judicial Court struck down the local ordinance as exceeding the scope of local government powers because it was inconsistent with state legislation establishing a sex offender registry and regulating sex offenders. Doe v. City of Lynn, 36 N.E.3d 18 (Mass. 2015). The local law effectively would make sex offenders homeless and would make it impossible for state authorities to track them to protect the public. In addition, the state statutes had a much narrower set of rules …

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California Supreme Court Upholds San Jose Inclusionary Zoning Ordinance Against a Takings Challenge

/ Antidiscrimination Law, Eminent Domain, Real Estate Transactions, Takings, Zoning

The California Supreme Court has upheld the inclusionary zoning ordinance of the City of San Jose against a challenge that it constitutes an illegal exaction and violates the state constitution’s takings clause or the federal constitution’s takings clause. Cal. Bldg. Indus. Ass’n v. City of San Jose, 2015 Cal. LEXIS 3905 (Cal. 2015). The ordinance required all new development projects containing 20 housing units or more to reserve 15 percent for sale at affordable prices to low- or moderate-income families. San Jose Mun. Code, §§ 5.08.010 to 5.08.730. The Court held that the municipal government had the power to enact reasonable land use regulations designed to increase the amount and dispersion of affordable housing and that this ordinance served those ends. Because it regulated land use, it did not constitute an “exaction” or forced donation of land to public use. The Court held that so long as a land use regulation does …

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Conditional permits subject to relaxed standard of review rather than the rigorous proofs required for variances

/ Zoning

New Jersey confusingly refers to conditional permits as “conditional use variances.” This language makes it easy to confuse conditional permits and variances. In TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 71 A.3d 762 (N.J. 2013), the Supreme Court of New Jersey reaffirmed the traditional rule that variances should be granted only in cases of unusual hardship (or other statutory requirements) because they allow something to be done that violates the intent of the zoning ordinance. Conditional permits, on the other hand, allow an activity to occur on land as long as the conditions are met and thus are subject to a lower standard of proof; they are presumptively permitted (as long as the conditions are established) rather than presumptively prohibited.

NJ Supreme Court holds that Governor Christie lacked authority to abolish the Council on Affordable Housing (COAH)

/ Antidiscrimination Law, Zoning

In 2011, Governor Chris Christie purported to abolish the Council on Affordable Housing (COAH), an agency set up by legislation and designed to implement the state’s Mount Laurel obligations; he planned to transfer its responsibilities to the Department of Community Affairs. The Supreme Court of New Jersey had held in the Mount Laurel litigation that towns were required to implement zoning laws in a manner that made room for all kinds of housing, including housing affordable by low and moderate-income families. S. Burlington County, NAACP v. Twp. of Mount Laurel (Mount Laurel II), 456 A.2d 390 (N.J. 1983); S. Burlington County, NAACP v. Twp. of Mount Laurel (Mount Laurel I), 336 A.2d 713 (N.J. 1975). When the legislature created an agency to manage those obligations, the court held that it constituted a legitimate institutional mechanism for complying with those constitutional obligations. Hills Dev. Co. v. Twp. of Bernards, 510 A.2d 621 (N.J. 1986). In In re Plan for Abolition of Council …

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Stray bullets from gun club ruled a nuisance

/ Nuisance, Zoning

A Massachusetts trial court has banned a gun club from allowing pistols and rifles to be fired on its premises in the face of evidence that stray bullets have entered neighboring properties. Read article Justice Charles Hely converted a three-year-old temporary restraining order into a permanent injunction and ordered payment of a total $22,000 in damages to be paid to several neighbors who lived within a half-mile radius of the club. One plaintiff narrowly escaped being hit by a bullet that entered her laundry room shortly after she left it. The club had also been shut down for failure to obtain necessary permits.

Abutters have standing to challenge neighbor’s compliance with zoning law

/ Zoning

State zoning enabling statutes generally define who has the power to challenge decisions by zoning boards about allowable land uses. Many allow abutters who are specially affected by land uses to challenge the legality of building permits or zoning decisions on the ground that if they are not granted this right, there will be no deterrence to zoning boards who ignore the limits of local zoning regulations. The Massachusetts Land Court affirmed the right of abutters who can show they were affected by neighboring land use to challenge zoning permit decisions as “persons aggrieved” under state statutes. Teti v. Town of Sherborn, 20 LCR 154 (Mass. Land Ct. Feb. 29, 2012).

Court wrestles with what it means to “continue” a prior nonconforming use

/ Zoning

A Mississippi appeals court ruled that an owner of an RV park on could allow portable cabins to be placed on the property as well as RVs. Jones v. Lutken, 62 So. 3d 455 (Miss. Ct. App. 2011). Many courts would find any change like this that expands the use of the property in any appreciable way to exceed the prior nonconforming use limitation but some courts, like this one, are more forgiving.

Job creation held not a sufficiently compelling government interest to justify refusing to rezone industrial property for church use

/ Antidiscrimination Law, Religious Freedom, Zoning

The Religious Land Use-Institutionalized Persons Act, 42 U.S.C. §2000cc, prohibits enforcing local zoning laws against religious institutions if those laws impose a “substantial burden” on the free exercise of religion and not justified by a compelling government interest that cannot be achieved in a less burdensome manner. The Ninth Circuit applied this statute to deny a city the power to exclude a church from moving to a larger building located in an area zoned for industrial use in the case of International Church of the Foursquare Gospel v. City of San Leandro, 2011 WL 1518980 (9th Cir. 2011). Read article. The church had become bigger over time and was looking for a new facility and hoped to move into an abandoned industrial building. The city hoped to attract a business to the site that would employ city residents and argued that its interest in promoting jobs was a compelling government interest justifying refusal …

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Supreme Court holds that Congress did not authorize damages judgments against state or municipal officials for violations of RLUIPA

/ Fair Housing Act, Zoning

The Supreme Court ruled in Sossamon v. Texas, 2011 U.S. LEXIS 3187 (U.S. 2011), that Congress did not waive the sovereign immunity of the United States when it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). This means that the only relief available against federal officials for violating the statutorily protected religious freedom rights of federal prisoners is prospective injunctive relief; no damages can be awarded for federal violations of the act. A similar result would apply to land owners whose land use rights are violated by federal officials. The case, however, was not against federal office but state prison officials in a state that accepted federal money to fund its prisons. The precise holding in the case was that prisoners cannot sue such states for damages when those states deprive inmates in state prisons of religious free exercise rights. A similar result could be expected for claims for …

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