Thursday, March 31, 2005

11th Circuit Bounces Billboard Challenges in 2 Cases

The 11th Circuit las week bounced two different cases filed by National Advertising against an the City of Miami's billboard ordinance (well, it's old ordinance). One was a facial challenge to the ordinance, the other a denial of permits under it.

Here are the links:

In the first case, the 11th held that when the City amended the ordinance, it made the case moot, and the District Court was right to dismiss it.

Sounds simple? Think about this: the City had adopted and maintained an ordinance that National claimed was unconstitutional. The City didn't change it until after the company filed its federal lawsuit. We don't know what damages were alleged (or not alleged) to have occured due to the presumably illegal ordinance. But if National had been allowed to proceed, it would have been entitled to damages under section 1983 and -- more importantly -- attorney's fees under sction 1988. So what this decision actually is doing is taking another swipe at the civil rights of individuals and companies by limiting their ability to pay for attacks on illegal ordinances. The local government adopts something patently illegal, says "you don't like it, sue," and only changes it if someone spends thousands or tens of thousands of dollars to initiate a lawsuit - and then walks away scott free from its illegal act.

In the second case, the 11th dismissed as unripe National's attack on the City's denial of permits for new signs because it had not recieved a written decision.

OK, so the guy at the desk rejects the permit application (here, there may have been non-speech related reasons - height - for denying the permits, but . .. ) apparently based on height, but also told them that they weren't permitted in the C-1 zone district. National goes right into court on the denials as "as applied" attacks on the grounds that the City denied the permits because it doesn't allow billboards in the C-1 district. District Court granted summary judgment for City based on the ripeness issue.

OK, so on one hand, it does look like National should at least have fixed the height problem and filed a new permit to get a denial clearly based on whether the zone district allowed it (which went to an exclusion and process issue under 1st amendment law). But suppose the clerks had denied them, or refused to accept them, for some other reason?

The real issue here is that local governments in enforcing improper or illegal restrictions will try to hide behind pretextually valid reasons for the illegal action - and in such cases the action is legal. But the other problem lurking here is the one where the agency refuses to actually deny a permit because it knows that the denial will be illegal, and tells you that it won't issue the permit.

Under this case, you MUST go through at least some administrative attack on the refusal to issue or deny the permit to get a denial in writing. So before you can even mount your civil rights attack on an illegal ordinance or interpretation, you probably have to spend thousands of dollars on bringing the issue to the Board of Zoning Appeals (or whoever), then maybe even to a cert challenge of that before the local determination will be final enough to challenge the underlying ordinance as unconstitutional.

My suggestion - file a dec/injunction action in state court along with the cert appeal. You can bring your 1983 claims at the same time and not spend years of litigation getting these issues right.

SO - practice pointers for those of us who have to litigate against potentially unconstitutional local ordinances:

1) Plead damages, not just illegality - if you can claim damage during the enforcement period, you MIGHT avoid the mootness problem that bounced National (we don't know from the opinion if damages were pled).
2) Do it in state court – you can get all of your claims into court at once and may be able to simply abate some counts if they will rely on others
3) Give yourself some other bases for going forward.
4) Exhaust remedies!

(thanks to Larry Sellers for passing these along).

Sunday, March 20, 2005

Another Key US Supreme Court Case - Lingle v Chevron - Will the Court Strike Back at Unfair Burdens?

While the Kelo case got nationwide attention and coverage (see post from earlier in the month), another case argued the same day got no attention and is far more important to land use issues.

Lingle v Chevron puts the "Agins" test squarely before the Court to determine whether it really means that the "substantial relation to a legitimate state interest" is a seperate takings test with seperate compensation requirements rather than some kind of bastard child of due process. The briefs can be read here.

The not-too-widely-discussed Del Monte Dunes case from a few years ago should have alerted everyone to the viability of this issue. That case ultimately turned on the question of whether a denial of a permit (in an administrative context) that was clearly not in fact related to the admittedly legitimate interests supported by the legislation and standards applied would create a taking - and the answer was yes at the District, Circuit and Supreme Court level. But that case had really eggregious facts - it was clear from the record that the local government was denying any application in order to preserve the property and perhaps to depress the value so that it could be bought. Those are not legitimate reasons for applying the legitimate environmental protection standards contained in the ordinance that the City was applying. Del Monte Dunes therefore stands for the proposition that where a local government inappropriately applies valid standards to deny development, and significant economic loss results, the "Agins" test means that there is a taking. That is, Nollan's application of Agins does not apply only to improper demands for "property" (easements or other exactions), but also to the destruction of property through permit denials. Two things were left unanswered - whether this applies to cases of less permanent and less total takings (here there was good evidence that the City wouldn't ever let them build ANYTHING), and whether the Agins test applies to legislative as well as administrative determinations.

In Lingle, the issue turns to legislation - and whether an Hawaiian act that limits the amount of rent that can be charged can create a taking if the "rent control" provision does not serve the intended and stated purpose of the legilsation. The question here is rent control applied to filling stations owned by gasoline wholesalers, supposedly to prevent certain kinds of predatory consumer pricing that too much vertical integration would allow. Chevron put on evidence that the statute would provide no impact on the legitimate stated interest of consumer protection from , and that it only shifted economic burdens as between Chevron and its lessees (to Chevron's detriment). The trial court found a taking as to the burden on Chevron from this scheme.

The briefs are predictable: Chevron stating that this is a long-considered aspect of the takings clause, articulating the "unfair burden" values that are part of the Penn Central balancing test (also articulated in Florida in the Estuary Properties case). This question examines whether the regulation unfairly puts public burdens on a private entity (say, providing public open space or parks - or in the case of Nollan, additional lateral beach access). Hawaii - and the APA and other entities - claim the end of the world and a return to Lochner-era substantive due process analysis if the claims are permitted. Interestingly, the US DoJ filed an amicus brief supporting Hawaii (here's the link to that).

I have no idea how this one is going to turn out, but I hope to see a serious shot across the bows of knee-jerk, grandstanding over-regulation. Since the federal courts have (inappropriately) made it much harder to bring section 1983 claims for the arbitrary denial of development permits and for arbitrary standards in ordinances, many, many local governments and agencies have been on an arrogant rampage of inappropriate and unfair regulation and regulatory actions - taking the "so sue me" response because they don't have anything to lose. ONLY the return of the threat of serious damages and attorney's fees will cause Commissioners to think twice and take their oath to uphold the constitution seriously - and their attorneys to be much more careful about what they "let" their Commissions do.

The better local government lawyers I know still worry about the constitutionality of their clients' actions and work hard to prevent them from adopting vague or illegal ordinances or taking arbitrary regulatory actions. But way, way too many take the view that their job is to defend the discretion of the Commission no matter what, and not to get in the way of them doing whatever it is that they want to do at the moment.

Also in front of the US S Ct - Ripeness/Res Judicata in Takings

On March 28, the US Supreme Court will hear argument in the San Remo Hotel case. Here are links to the briefs.

The underlying conflict here involves San Francisco's draconian anti-conversion laws, which require huge payments to the City if hotel owners convert their units to condominium or similar uses. Intended to preserve affordable housing in the city, the laws are hugely punitive to anyone who owns property that was used in "single room occupancy" (SRO) long term uses.

This case involves the interplay of ripeness and federal issue preclusion in takings cases. Under the "Williamson County" rule, a state action that creates a taking doesn't violate the federal constitution unless the state refuses to compensate for the taking - which requires presenting the case to the state courts. Other doctrines deal with how you reserve the right to litigate a federal claim in federal court when the same transaction might produce state claims.

The issue here is whether the state courts litigated not only the state's interpretation of the state's taking law (and the availability of compensation), but also the federal issues at the same time. The Ninth Circuit bounced the case, which is now before the Supreme Court on the question.

The problem here is somewhat obscure - ultimately it turns on how do you present a takings case to a federal court so that the federal courts can determine a) the scope of takings protection under the 5th amendment as to new issues, theories or fact patterns; and b) whether federal takings protection exceeds that provided by any particular state. Historically, these core federal questions would be litigated in federal court rather than in state court - it's only because a state court must reject the substantive claim and/or availability of damages to remedy the claim that the taking claims must be presented to a state court. If you can't effectively reserve your federal claims to litigate them in federal court, then the state courts (rather than federal courts) will get to determine what the US Constitution means.

But the federal courts have allowed state courts to develop the scope of the federal constitution in other areas - if San Remo loses here, it will indicate that the future of the takings clause protections will largely be determined by litigating federal questions in state court, with the first contact between the issues and the federal courts being when a state court decision is taken up in a petition for certiorari to the US Supreme Court.

Thursday, March 17, 2005

Fla Supremes Strike "Hometown Democracy" Amendment - Ballot Summary Misleading

In a victory for anyone who actually cares about the process and contents of planning, but a close call on representative democracy and "ballot summary" writing, the Supremes bounced the Hometown Democracy Amendment in this opinion .

By a slim 4-3 majority, they found that the first line of the ballot summary - "Public participation in local government comprehensive land use planning benefits Florida’s natural resources, scenic beauty and citizens" - was misleading because comprehensive plans involve much more than these values. All 7 justices found that the amendment meets the single subject requirements.

Three justices, Quince, Lewis and Anstead, dissented from the determination that the ballot summary was misleading. Lewis wrote one dissent, that Anstead joined, and Quince wrote another, that Lewis and Anstead joined. The dissenters found the ballot summary no more misleading than others that had been approved :) and would have let the voters decide.

While I have some serious qualms about the reasoning, I have to admit relief that this won't go before the voters, as it would have resulted in the complete gutting of growth management. The sponsors seems to completely miss that if the planning process turns into a popularity contest (locking Florida into backward looking plans that screw up our ability to handle growth for decades to come), the Legislature could - and I believe would - simply repeal the consistency doctrine. Let the plan say whatever, and simply disconnect zoning and land use from it again.

Tuesday, March 15, 2005

Deference stops at the silly

Agencies - local government or state - just can't seem to stop themselves from reading statutes, ordinances and rules the way they wish they were written, as opposed to how they are in fact written. In this opinion, the 5th DCA reminds us (once again, into the breach, dear friends) that
a court is not required to defer to a construction that is unreasonable or is clearly erroneous - and provides some good cites on agency intepretations that fly in the face of the plain meaning of the statute and statutes that are written with unambigous text. A good one to keep in your arsenal.


Wednesday, March 02, 2005

US S CT hears Kelo case - coverage/commentary

Last week, the big news was the US Supremes hearing argument in Kelo, the case involving the scope of "public use" in compensated takings - that is, whether local governments can simply take unblighted land from one private owner to then convey it to another private landowner. I've included some links below to briefs, news, commentaries and amicus below.

Links to the briefs (parties - some amicus available below)


Legal Times report from

Supporters of the Kelos:
Institute for Justice’s site

Cato Institute and Richard Epstein – amicus brief

A conservative but academic blog:

Reason mag site (extreme libertarians)

Supporters of the City:
American Planning Association page and link to amicus brief:

Legal Times editorial by amicus author for Community Rights Council