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Posts from September 2016.

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Garvey Schubert Barer is proud to sponsor the 2016 Housing Land Advocates Conference: Seeking Prosperity: The Role of Housing in Local Economies held on Friday, November 4, 2016 at David Evans & Associates in Portland, Oregon.

coexist_orig Flickr Photo SharingIn Harbor Missionary Church Corp. v. City of San Bueanaventura, 642 Fed. App. 726 (9th Cir., 2016), plaintiff had a church ministry serving the homeless. Defendant told Plaintiff it needed a conditional use permit (CUP) and, when it applied for the same, denied it. Plaintiff then brought a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), requesting a preliminary injunction to keep its ministry available pending appeal. The trial court denied the injunction, finding the church suffered no substantial burden under RLUIPA because it could move its ministry elsewhere and that the denial of the CUP was the least restrictive means of meeting the City’s concerns.

U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016) involved the disposition of a sentencing remand by the Fifth Circuit in a zoning bribery case. Defendant mayor was charged with 13 counts of corruption involving four schemes, and was convicted on seven of those counts. The jury acquitted defendant on the remaining counts. In the first appeal, the court upheld the convictions, but remanded the case for resentencing, finding the trial court erred in its calculations.

Folsom v. Zoning Board of Appeals of Milford, 160 Conn. App. 1 (2015) involved the appeal of an unrepresented plaintiff who had successfully appealed a zoning enforcement officer’s issuance of a certificate of zoning compliance to his neighbor who wished to build a structure on adjacent property.  Plaintiff then sought reimbursement for his incurred for that appeal, plus interest.  On motion, that complaint was struck.  Plaintiff filed another suit, alleging the zoning enforcement officer was personally liable to plaintiff for failure to enforce the zoning ordinance, that the Board of Zoning Appeals was liable for failing to disqualify itself from the underlying case over a conflict of interest, and the defendant city was liable to plaintiff for reimbursement of his costs.  That complaint was also struck and plaintiff appeals the grant of both motions to strike.

A memorandum opinion in Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016) disposed of a case in which Plaintiffs complained that Defendant City did not provide them with personal notice in approving a lot boundary line adjustment, contending that Washington’s Land Use Petition Act (LUPA) provided them with a protected property interest in the City’s proceedings in which a minimum lot size of 5000 square feet for single family homes could not be changed without those proceedings.  The trial court dismissed the case finding no cognizable property interest under the circumstances.  The trial court said that “only those rules and understandings that support legitimate claims of entitlement give rise to protected property interests” require notice and found that LUPA did not create such an interest so as to require notice.

The Ninth Circuit found the dismissal proper and affirmed.  Because there was a discretionary decision and no vested right created under state law, the decision appears to be correct from a due process point of view.  The due process clause of the Fourteenth Amendment protects “life, liberty and property” interests; thus, a plaintiff must show the existence of such an interest.  Because Plaintiffs could not show the existence of such an interest, there was no constitutional claim to pursue.

Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016).

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