11/13/2011
Planning Law Update Eric Damian Kelly, J.D., Ph.D., FAICP and Ball State University
Agenda
Notice for Zoning Amendments Zoning and Religious Institutions Regulation of Cell Towers First Amendment – Generally First Amendment and Sex Businesses First Amendment – Sign Regulation Electronic Signs
Notice Passalino v. City of Zion, 237 Ill. 2d 118, 928 N.E.2d 814 (2009) held published notice not adequate for amendment rezoning 85 properties
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Notice What’s a planner to do?
1. Hope that the General Assembly amends the law 2. Ask your attorney 3. Consider detailed published notices on comprehensive zoning map amendment
Due Process Elements Notice Fair hearing [Impartial?] tribunal
Generally applies to Administrative and quasi-judicial decisions affecting individual rights, including property rights
And NOT to legislative actions
Due Process (2) Passalino v. City of Zion, 237 Ill. 2d 118, 928 N.E.2d 814 (2009) also held that due process applies to legislative zoning decisions.
General Assembly says otherwise. See Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003, 922 N.E.2d 1143 (Ill. App. Ct. 2d Dist. 2009), app. den., 236 Ill. 2d 508 (2010).
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Due Process (3) What’s a planner to do?
Process special use permits like other quasijudicial matters Let elected officials do as they will
Religious Land Uses Religious Land Use and Institutionalized Persons Act (RLUIPA)
Religious Freedom Restoration Act 775 ILCS 35/1 et seq
42 U.S.C.S. § 2000cc
Religious -- State “Government may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.”
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Religious -- Federal Prohibition on imposing “substantial burden” on practice of religion if project involves federal funding, affects trade with foreign nations or if process allows “individualized assessments” of “proposed land uses.” [42 U.S.C.S. § 2000cc(a)] and “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” [42 U.S.C.S. § 2000cc(b)]
Religious -- RLUIPA “Substantial burden” test does not apply to administrative zoning decisions DOES apply to special use permits….
“Equal terms” test usually compares treatment to: Auditorium Private club Community center Theater
RLUIPA in Court River of Life UPHELD under Kingdom RLUIPA local Ministries v. Vill. ordinance of Hazel Crest, allowing only 611 F.3d 367 (7th “commercial” Cir. Ill. 2010) uses in “village” [downtown] district
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State Act in Court Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003, 922 N.E.2d 1143, (Ill. App. Ct. 2d Dist. 2009), app. den. (Ill. 2010)
Upheld local requirement that nonconforming church obtain special use permit before seeking site plan review for expansion
What’s a planner to do?
1. Update your ordinance to refer to “house of worship” or “religious institution” 2. Don’t worry – just use common sense
Cell Towers Telecommunications Act of 1996 Created presumption in favor of “personal wireless services” Limited local discretion to regulate antennae
Challenging requirements (for local government) Decisions “shall be in writing and shall be supported by substantial evidence”
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Cell Towers in Court Helcher v. Held that: Dearborn County, 1. Board minutes were adequate written 595 F.3d 710 (7th record Cir. Ind. 2010)
2. Photo simulations and written complaints of people who moved there for “natural views” were substantial evidence
What’s a planner to do?
1. Use IMAGES in the record 2. Include background documents 3. Make sure that minutes are complete
First Amendment Update First Amendment affects regulation of Signs Sex Businesses Religious Institutions Newspaper Boxes….
Supreme Court generally ruling AGAINST government in First Amendment Cases
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First Amendment Update (2) Supreme Court: Affirmed (8-1) a decision striking down as unconstitutional a federal law prohibiting the sale of media depicting animal cruelty. United States v. Stevens, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (U.S. 2010).
First…Update (3) Supreme Court: Affirmed (8-1) an appellate court decision reversing a district court judgment for the plaintiff on a tort claim by the family of a soldier killed in war against the Westboro Baptist Church, whose members picketed the soldier’s funeral with signs that said, among other things, “Thank God for dead soldiers,” “God hates fags,” “Fag troops,” “Pope in hell” and “You’re going to hell.” Snyder v. Phelps, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (U.S. 2011).
First…Update (4) Supreme Court: Struck down (7-2) a California law preventing the sale of “violent” video games to persons under the age of 18. Brown v. Entm’t Merchs. Ass’n, 2011 U.S. LEXIS 4802 (U.S. June 27, 2011).
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First Amendment What’s a planner to do?
1. Be concerned 2. Be cautious 3. Rethink your approach to signs 4. Stay tuned
Sex Businesses Renton and Alameda Books have upheld regulating sex businesses based on “negative secondary effects”
Former practice: Cite a bunch of studies just like citing “health, safety and welfare” and don’t worry about it
Sex in Court Metro Pony, LLC v. City of Metropolis, 2011 U.S. Dist. LEXIS 18139 (S.D. Ill. Feb. 24, 2011) granted preliminary injunction because of “gaps” between evidence and ordinance
Undercover Metro Pony operation leads to prostitution charges Web Editor - Jay Marchmon Story Created: Oct 31, 2011 at 11:15 AM CST www.wpsdlocal6.com
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Sex in Court (2) New Albany DVD, LLC v. City of New Albany, 581 F.3d 556 (7th Cir. Ind. 2009) found that studies of sex businesses in general not adequate to uphold regulation of retailonly business
Sex in Court (3) Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. Ind. 2009) found evidence did not support ordinance, particularly since crime went down after ordinance was enforced….
Sex Businesses What’s a planner to do?
1. Consult your attorney if you get an application for an SOB or possible SOB 2. Consult your attorney before taking enforcement action against SOB 3. Have RELEVANT studies and evidence in record if you update ordinance!
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Signs Local governments have been losing lots of sign litigation, especially since 2001 Courts sometimes strike down entire ordinance and allow plaintiff to put up sign without regulation in effect
Major problem: too many exceptions raise questions about link between purpose and effect of ordinance
Cautionary Tale Bowden v. Town of Cary, 754 F. Supp. 2d 794 (E.D.N.C. 2010) struck down sign ordinance because of exceptions, including “holiday decorations” and “townrecognized” events
Cautionary Tale (2) Wag More Dogs, LLC v. Artman, 2011 U.S. Dist. LEXIS 14642 (E.D. Va. Feb. 10, 2011) UPHELD decision that mural was sign because it related to business in building (doggy day care)
Washington Post photo Green area in front is Shirlington Dog Park
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Signs -- Generally What a planner REALLY needs to do
1. Review your sign ordinance for content-based distinctions and figure out how to get rid of them!!!
Signs -- Electronic Old rules on “flashing” or “scintillating” signs probably NOT adequate to control
Signs -- Electronic What’s a planner to do?
Draft ordinance to regulate: Size Brightness Frequency of changes Location (relation to residential areas)
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Questions
Contact Eric Damian Kelly, Ph.D., FAICP eric@duncanassociates.com ekelly@bsu.edu 765-285-1909 (Ball State) 765-215-3559 (cell)
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Continuing Legal Education for Planners Case Appendix to Presentation with Slide Show for Chicago Metro Section, American Planning Association Eric Damian Kelly, Ph.D., FAICP 16 November 2011 Users Note This appendix is intended for use essentially as footnotes to a slide presentation and lecture. If this comes into your possession and you want more information, please contact Chicago Section of the American Planning Association (http://www.ilapa.org/CMS.html ) or the author (ekelly@bsu.edu or eric@duncanassociates.com ) for a copy of the slide show.
Notice of Rezoning In Passalino v. City of Zion, 237 Ill. 2d 118, 928 N.E.2d 814 (2009), as modified April 2010, the court held that 65 ILCS 5/11-13-2, which requires notice by publication before adoption of a zoning ordinance or amendment, is unconstitutional as applied to a case where the zoning ordinance amendment changed the zoning classifications of 85 properties.
Due Process Principle concerns in zoning are that a party whose rights are at stake receive:
Notice A fair hearing Before an [impartial?] tribunal
In Passalino v. City of Zion, 237 Ill. 2d 118, 928 N.E.2d 814 (2009), as modified April 2010, the Illinois Supreme Court made it clear that due process rights apply to all types of zoning decisions, including those made by a legislative or governing body. This is consistent with the court’s decision in In People ex rel. Klaeren v. Vill. of Lisle, 202 Ill. 2d 164, 781 N.E.2d 223 (Ill. 2002), in which it held that all special use permit proceedings are quasi-judicial, whether they go to the legislative body or a zoning board. The legislature disagreed and amended the law to provide that special use permit decisions by the legislative body are “legislative” in nature. See discussion in Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003, 922 N.E.2d 1143 (Ill. App. Ct. 2d Dist. 2009), app. den., 236 Ill. 2d 508 (2010). federal principles of due process
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have generally NOT been applied to legislative decisions in which local governments retain broad discretion.
Religious Land Use and Institutionalized Persons Act Two critical parts to statute: Prohibition on imposing “substantial burden” on practice of religion if project involves federal funding, affects trade with foreign nations or if process allows “individualized assessments” of “proposed land uses.” [42 U.S.C.S. § 2000cc(a)] and “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” [42 U.S.C.S. § 2000cc(b)] Typical measures of “equal terms” provisions are theaters, community centers, auditoriums and so on. River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367 (7th Cir. Ill. 2010) upheld as Constitutional a “village” zoning district for the historic downtown area that allowed only “commercial” uses and that thus prohibited noncommercial places of assembly. The effect of this decision was to limit the effect of the previous and somewhat troubling Digrugilliers v. Consol. City of Indianapolis, 506 F.3d 612 (7th Cir. Ind. 2007). “Religious Freedom Restoration Act.” 775 ILCS 35/1 et seq. It provides a broad definition of what it protects: "Exercise of religion" means an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief. § 775 ILCS 35/5. It then provides this broad protection: Government may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest. § 775 ILCS 35/15. The act further provides: 2
If an ordinance, standard, rule, or regulation enacted under the authority of this Section or under the authority of a unit of local government's home rule powers prohibits, restricts, narrows, or burdens a person's exercise of religion or permits the prohibition, restriction, narrowing, or burdening of a person's exercise of religion, that ordinance, standard, rule, or regulation is void and unenforceable as to that person if it (i) is not in furtherance of a compelling governmental interest and (ii) is not the least restrictive means of furthering that governmental interest. § 775 ILCS 35/5. Important recent case: Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003, 1019, 922 N.E.2d 1143, 1155-56 (Ill. App. Ct. 2d Dist. 2009), app. den. (Ill. 2010). A church filed an application for site plan review for a substantial expansion of its facilities. The church was allowed in the zoning district under a special use permit, but it was found by the zoning administrator to be “non-complying” because it did not meet the ordinance requirement that it front on an arterial street. The city thus determined that the church could not simply apply for a site plan approval but required that the church apply for a new special use permit. The city won on this important issue, although the matter was remanded for further consideration on another issue.
Cell Towers Telecommunications Act of 1996 established presumption in favor of personal wireless service facilities. 47 U.S.C. 332(c)(7). Requirements that decisions denying approval “shall be in writing and shall be supported by substantial evidence” have been particularly challenging for local governments. Helcher v. Dearborn County, 595 F.3d 710 (7th Cir. Ind. 2010) held that (1) board’s minutes were an adequate record of decision; (2) simulated photos of tower as viewed from other property and written objections of residents who moved to area for natural views provided “substantial evidence” to support denial.
First Amendment -- Generally The three recent Supreme Court decisions that suggest a broader interpretation of the First Amendment by the Supreme Court are: Affirmed (8-1) a decision striking down as unconstitutional a federal law prohibiting the sale of media depicting animal cruelty. United States v. Stevens, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (U.S. 2010). Affirmed (8-1) an appellate court decision reversing a district court judgment for the plaintiff on a tort claim by the family of a soldier killed in war against the 3
Westboro Baptist Church, whose members picketed the soldier’s funeral with signs that said, among other things, “Thank God for dead soldiers,” “God hates fags,” “Fag troops,” “Pope in hell” and “You’re going to hell.” Snyder v. Phelps, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (U.S. 2011). Struck down (7-2) a California law preventing the sale of “violent” video games to persons under the age of 18. Brown v. Entm’t Merchs. Ass’n, 2011 U.S. LEXIS 4802 (U.S. June 27, 2011).
First Amendment – Sex Businesses Leading cases: Playtime Theatres, Inc. v. City of Renton, 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed 2d 29 (1986); City of Los Angeles v. Alameda Books, 536 U.S. 921; 122 S. Ct. 2585; 153 L. Ed. 2d 775 (2002). Metro Pony, LLC v. City of Metropolis, 2011 U.S. Dist. LEXIS 18139 (S.D. Ill. Feb. 24, 2011), granted preliminary injunction against enforcement of local licensing ordinance because it found “gaps” between the secondary effects evidence and the effect of the ordinance. New Albany DVD, LLC v. City of New Albany, 581 F.3d 556 (7th Cir. Ind. 2009), corrected by 2009 U.S. App. LEXIS 20703 (correcting two typos), cert. den. 130 S. Ct. 3410, 177 L. Ed. 2d 349 (2010), found local ordinance unconstitutional as applied to retail-only store where the studies it cited lumped establishments with live entertainment in with those selling at retail only. Also called concerns about crime such as theft from patrons carrying cash “paternalistic.” Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. Ind. 2009), reversed district court in part and struck down ordinance limiting operating hours of retail stores as unconstitutional where much of evidence related to arrests in viewing booths (which these stores did not have) and where crime had actually gone down after enforcement of ordinance began. “Indianapolis has approached this case by assuming that any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city.”
First Amendment – Sign Regulations No recent and significant cases in Seventh Circuit (since Des Plaines ordinance struck down in 2004), but see
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Bowden v. Town of Cary, 754 F. Supp. 2d 794 (E.D.N.C. 2010) found sign ordinance unconstitutional because of a number of exceptions, including those for “holiday displays” and signs for “town-recognized events.” Wag More Dogs, LLC v. Artman, 2011 U.S. Dist. LEXIS 14642 (E.D. Va. Feb. 10, 2011), upheld ordinance as Constitutional based on local administrative practice of allowing murals unrelated to the business on which they appeared.
About the Author Eric Damian Kelly is a planner and lawyer who has bridged the worlds of teaching and planning practice for 35 years. He is a professor of urban planning at Ball State University, where he is also a former dean and department chair and currently chairs the university senate. He maintains a part-time consulting practice with Duncan Associates, which has principle offices in Chicago and Austin. Kelly’s recent publications include Managing Community Growth, Second Edition (Praeger, 2005); Community Planning: an Introduction to the Comprehensive Plan, 2d. Ed. (Island Press, 2009). He is also the author or lead co-author of six technical reports in the planning field, the most recent of which is on the regulation of sexually oriented businesses; one, Sign Regulation for Small and Midsize Communities, was long a bestseller for the Planners Bookstore. Kelly is also General Editor of the 10-volume legal treatise, Zoning and Land Use Controls, published by Matthew Bender; he prepares three update releases per year for the treatise; Chapter 17 of the treatise is devoted entirely to the legal issues involved in regulating signs and billobards. Since 1996, he has been the sole author for updates to the one-volume A Practical Guide to Winning Land Use Permits and Approvals, also published by Matthew Bender. A graduate of Williams College in Williamstown, Massachusetts, Kelly also received Juris Doctor and Master of City Planning Degrees from the University of Pennsylvania and a Ph.D. in public policy from The Union Institute. He is a member of Phi Kappa Phi honorary society.
Eric Damian Kelly, Ph.D., FAICP Duncan Associates 2312 West Audubon Drive Muncie IN 47304-2003 765-289-5380 eric@duncanplan.com
Professor of Urban Planning Ball State University Muncie IN 47306 765-285-1909 ekelly@bsu.edu
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