Current Trends in Planning Law Daniel A. Spitzer Hodgson Russ LLP .

Current Trends in Planning Law

Daniel A. SpitzerHodgson Russ LLP

www.hodgsonruss.com

© 2009 Hodgson Russ LLP 2

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Planning Law can be Difficult“Land-use litigation is a complex area of law, to say the least. Both litigants and courts can be confused by the complexity, and often one cannot tell which claim has been brought or which standard is being applied. The United States Supreme Court has refined its understanding of these concepts over the years, sometimes overturning or modifying previous decisions or portions of them.


Planning Law can be DifficultThe resulting legal framework is difficult to interpret and this case illustrates that "confusion abounds." In some cases, the abounding legal confusion has led to the dreaded "shotgun" pleading, in which plaintiffs add to the problem by alleging a myriad of facts under an undecipherable legal theory.”

Hon. Stephan P. Mickle , United States District JudgeRomero v. Watson, 2009 U.S. Dist. LEXIS 43538, *5-6 (N.D. Fla. May 13, 2009) (Citations omitted)


Surviving the Recession

Stimulus Funding So FarReady, Shoot, AimDelays in issuing regulations Is the Funding Working?

Many projects funded to date were already approved, federal funds swapped for state funds

Question if the money is going where most needed


Surviving the Recession

Banks and other lenders still on the sidelinesDevelopers pressing communities to accept

lower-quality projects, using the economic problems as an excuse


Hot off the presses . . .

New Jersey Tree Protection Ordinance Upheld

New Jersey Shore Builders Association v. Township of Jackson, 2009 WL 1310781 (NJ 5/13/2009)



The ordinance provides that, "[u]nless specifically exempted[] herein, it shall be unlawful for any person to remove or cause to be removed any tree with a trunk diameter of three (3) inches or more DBH (Diameter Breast Height)[] without first having obtained a tree removal permit to do so."



The ordinance provides that removed trees had to be replaced, either on the site or suitable off-site public area, or a replacement fee paid so township could plant trees



Tree-removal and replacement law is a valid exercise of police power because the various requirements - the tree-replacement fee, the escrow fund, and the planting of trees and shrubs on alternative, public property sites when replanting at the original location is not feasible - are rationally related to the broad environmental goals of the land use law.


Hot off the presses . . .The Court rejects the argument that the ordinance does not

achieve its stated purpose because it permits large trees on private property to be replaced by smaller trees and shrubs on public property. An ordinance need not be perfect to pass muster, it must only advance the cause it was intended to achieve. Smaller trees and shrubs can have an important impact on the environment. With regard to planting on public property, the Township cannot mandate that trees be replanted on other private property, and its attempt to mitigate the effects of tree loss by promoting planting, wherever it can, is rational. Replanting at the original location is optimal because it addresses all of the goals of the ordinance, including dust and soil erosion. However, where that is not feasible, the Township mitigates the overall loss by planting off-site through the use of the escrow funds.



The Township's ordinance is reasonable, and the possibility of a more reasonable ordinance is not relevant.


Green Tide vs. Green Backlash

Is overuse of the terms such as “Green Economy” and “Green Jobs” making it more difficult to push sustainable forms of development?

How “green” do you have to be? Who decides?



One area where we need to be careful – adoption of Green Building Codes

The danger – as planners we want flexibility, ability to reach community plans by having developers work for desired goals, and we want to be able to reach compromises that benefit all



But codes that are not definitive, that provide non-legislative bodies (Planning Boards for example) with too little direction and too much discretion, may be invalidated



USGBC LEED Codes were never intended to be used as laws. What happens if the third party doesn’t certify, or a level not reached? Do you tear down the offending structure

LEED, is by definition, supposed to change regularly



Better choices

Use of incentive zoning where allowed

Use of Planned Unit Developments

Imposition of reasonable conditions


Greenhouse Gases

Integrating greenhouse gas emissions into the review process

Expert level record is the key Does your enabling legislation authorize

the inquiry? Does it impose the cost, to the extent

allowable, on the applicant


Greenhouse Gases

Many of our normal concerns already touch on GHGs – traffic, air quality

Are you bound by state or federal permits? – most states no if there is a record showing unacceptable levels of harm

Laidlaw v. Town of Ellicottville (NY 4th Dep’t 2009) – upholding site plan denial on basis of hazardous air emissions


Digital Signs

Why Regulate?

Distracting to drivers has been proven in study after study


Digital SignsAssociation of State Highway and Transportation Officials makes several recommendations:

No signs be put up where drivers have to think fast, such as at freeway interchanges or merging lanes. Drivers should never see more than one electronic billboard at a time to avoid a cloud of glare.

To keep driver attention on the road, the study said signs should have limited messages, should not be sequenced like “Burma Shave” signs and messages should change instantly. Limits are also set on brightness.

Approaching drivers should see no more than one message at a time. The study provides a formula to determine that. If a sign can be seen from a mile away, it should remain up for 60 seconds. Most limits currently 8-12 seconds.

The ordinance should call for an annual license for billboards so local and state officials can adjust as technology changes.

Website: http://www.scenic.org/pdfs/NCHRP%20Digital%20Billboard%20Report.pdf


Digital Signs Meets RLUIPA

Trinity Assembly of God of Balt. City, Inc. v. People's Counsel for Balt. County, 407 Md. 53 (Md. 2008)

Maryland’s highest court upholds denial of a variance request from a church seeking a bigger sign

Do religious organizations see RLUPIA as a free pass through zoning regulations?



Trinity Assembly’s Property abuts the Baltimore Beltway. Trinity wanted to replace the current Beltway-facing sign, which simply identifies the church as "Trinity Assembly of God," with a new, single-faced sign that would be 250 square feet in area, 25 feet tall, and face eastbound traffic only. A portion of the face area of the proposed sign, approximately five feet long and 18 1/2 feet wide, would be changeable copy operated electronically by Trinity. Trinity sought variances from the square-footage and height limitations.



“It was Trinity's position that the proposed sign is a form of religious exercise, as contemplated by the RLUIPA, because it would allow the church to proselytize and attract additional parishioners in accordance with its missionary ministry. Trinity further contended that People's Counsel had not shown how the Board's denial of the variances is the least restrictive means of serving a compelling government interest.”



“We resolve that, under the RLUIPA, a land use regulation, or a zoning authority's application of it, imposes a substantial burden on religious exercise only if it leaves the aggrieved religious institution without a reasonable means to observe a particular religious precept. Such a regulation would be oppressive to a significantly great extent.


Digital Signs Meets RLUIPAIf, however, the religious institution may adhere to

that precept through some viable alternative mode, the land use regulation at issue is not a substantial burden on religious exercise, even though it may make that exercise more difficult or expensive. Indeed, a zoning authority need not subsidize a religious group by applying a regulation in a manner that makes it easier or cheaper for the group to follow its beliefs. Moreover, legitimate and "run of the mill" zoning requirements rarely, if ever, will rise to the level of a substantial burden.”



The court held that neither the board's decision nor the sign law violated the RLUIPA because the denial of the church's variance request did not impose a substantial burden on the church's religious exercise where the church had numerous ways of publicizing its activities and evangelizing, the church already had two identification signs, and there was no evidence that church attendance was falling due to the lack of the proposed sign.

Trinity Assembly of God of Balt. City, Inc. v. People's Counsel for Balt. County, 407 Md. 53 (Md. 2008)



Lessons from Trinity Assembly:

Examine what the true impact on religious activities would be

Investigate whether alternatives exist

Make a record (here the Board had testimony at a hearing)


Street Furniture Signs

Two Federal Cases Upholding Municipal Monopoly on Street Furniture Signs

Metro Lights, L.L.C. v. City of L.A., 551 F.3d 898, (9th Cir. 2009)


Street Furniture SignsMetro Lights, L.L.C. v. City of L.A.

The City entered into a contract under which the LLC would install public facilities at city-owned transit stops across the City in exchange for exclusive advertising rights on those facilities. Five months later, the city enacted an ordinance generally banning off-site advertising but excluding from its reach, among other places, such transit stops.



The district court concluded that the sign ordinance was not narrowly tailored to the City's interests because the City could have imposed the same requirements on other private advertisers that it did on the LLC, such as by requiring that any advertisements meet certain specifications to promote the City's goals with regard to traffic safety and aesthetics.


Street Furniture SignsThe district court failed to account for the fact

that the City's plan allowed it to supervise a more concentrated supply of off-site signage, which plausibly contributed to its interest in visual coherence as a part of aesthetic quality. The City had not undermined the goal of its general prohibition on off-site signs by excepting the transit stop signs from the prohibition.


Street Furniture SignsThe arguments in Metro Lights and Clear Channel deal with

“under-inclusiveness”

it may seem counter-intuitive at first, the Supreme Court has held that a regulation can be unconstitutional if it "in effect restricts too little speech because its exemptions discriminate on the basis of the signs' messages [or because] [t]hey may diminish the credibility of the government's rationale for restricting speech in the first place." City of Ladue v. Gilleo, 512 U.S. 43, 50-51, 52, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994).

Metro Lights, L.L.C. v. City of L.A., 551 F.3d 898, 904-905 (9th Cir. Cal. 2009)



The two Federal Courts rejected the argument that the Cities, by allowing the advertising solely on the City-controlled street furniture (kiosks, bus shelters, newsstands) created an exemption so large as to make the goal of the regulation meaningless.



The two Federal Courts rejected the argument that the Cities, by allowing the advertising solely on the City-controlled street furniture (kiosks, bus shelters, newsstands) created an exemption so large as to make the goal of the regulation meaningless.



Rejecting this, the Ninth Circuit said “Although the SFA permits some advertising, a regime that combines the Sign Ordinance and the SFA still arrests the uncontrolled proliferation of signage and thereby goes a long way toward cleaning up the clutter, which the City believed to be a worthy legislative goal.”


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